Measure the Secondly delay of Execution after Judgment had and obtained IT is very well known to all Practicers I presume in this Court that in all actions brought by Bill in this Court in which after the Plaintiffs have recovered and are ready to take out Execution that a Writ of Errour may be brought thereupon by the Defendant returnable in the Court of Exchequer-Chamber and very easie at all times to be purchased but in all actions brought by original Writ and Judgments thereupon had and obtained no Writ of Errour lieth thereupon but must be returnable in the high Court of Parliament and that not so easie to be purchased the charges thereof being very great the Fees being most or all of them double over and above what those are of Writs of Errour returnable in the said Court of Exchequer-Chamber and upon the affirmation of such Judgment in Parliament there is always very great costs awarded and taxed to the Defendant in the Writ of Errour who is Plaintiff in the action for delay of his Execution occasioned by such Writ of Errour besides no Writ of Errour can be obtained in such case but when there is a Parliament in being for no Writ of Errour can or ought to be returnable ad proximum Parliamentum in regard it would be so great a prejudice and delay to the Subjects Plaintiffs in such actions the times of convening of Parliaments being so uncertain and onely lying in the King's power as Supreme it being his Royal Prerogative to Call Prorogue Adjourn and Dissolve them when he pleaseth So that for the reasons aforesaid Writs of Errour are seldom brought upon such Judgments as are recovered upon actions brought by original Writ Nay yet farther also after all this when such Judgments before obtained by Bill are affirmed upon the Writ of Errour in the Exchequer-Chamber yet may a Writ of Errour per Stat. de Anno. 27. Eliz. Cap. 8. be brought returnable as aforesaid in the said high Court of Parliament to the intollerable delay and vexation of the Plaintiffs in such actions a thing which the common Law of England in its own nature abhors and detests it being Festinum Remedium and its property such as in some reasonable time suum cuique dare and therefore it is certainly the best way so to bring actions and after such a manner especially where Titles of Land are concerned or great damages likely to be recovered that so after Judgment had Execution may not long be delayed which is for the good and interest of the Subjects who are Plaintiffs in such actions That against some sort of Persons and in Thirdly some sort of Actions there is no other way to proceed in the said Court but by Original Writ BY the Law of this Land no Peer First as to Persons thereof ought by his Body to be taken or arrested by virtue of any Writ or Process in any Civil Cause whatsoeever But although he may not be arrested yet may an Original Writ of Pone in the nature of a Summons as the Case requires issue out of the high-High-court of Chancery to cause him to appear at the return of such Writ in this Court there to answer the Plaintiff in such Writ named to his Complaint therein mentioned and if the Sheriff to whom such Writ is directed do thereupon return that he hath taken Pledges of such Peer to appear in this Court according as by the said Writ he was commanded and he do not appear accordingly Then upon such return there may be had from the Filizer of the said County a Writ of Distring directed to the said Sheriff commanding him that he distrain such Peer by all his Lands and Chattels c. in order to cause him to appear and if he do not thereupon appear and such Sheriff return issues thereupon ad valentiam c. Then the said Filizer may make forth an Alias distring and also upon return thereof a Plur. distring ad infinitum untill such Peer do appear and it is the usual course for such Sheriff to increase or double the issues upon every return but if he return but small issues the Plaintiff if he pleases may move this Court that such Sheriff may return better Issues that is to say greater Issues all which Issues must be by the Plaintiff's Attorney brought into the Filizer's Office who made out such Distring and from thence estreated into the Court of Exchequer there to be levied upon such Peer's Lands and Chattels by way of forfeiture to the King for his not appearing as aforesaid And upon a nichil habet returned by the Sheriff upon such Distring there may go out a Testat distring into another County where such Peer hath Lands or Chattels and be proceeded upon as aforesaid But if in case that such Sheriff do return likewise a nichil habet upon such Writ of Pone before-mentioned then the Attorney for the Plaintiff may have an alias or rather a Testat Pone from the said Filizer directed unto the Sheriff of that County where such Peer liveth and hath sufficient and upon a return of Pledges taken as aforesaid the said Attorney may proceed thereupon by Distring ad infinitum in form aforesaid And besides such honourable Persons as Peers who for their honour are said to be à Latere Regis and are protected by Law from attaching or arresting by their Bodies in all Civil Causes as is before said There are other Persons that in their politick capacity cannot be arrested or attached such are all Corporations and Societies of men that act all under one Common Seal of their Corporation as the Mayor Aldermen c. of any City The Dean and Chapter of W. The Master Wardens and Fellows of a College and the like and any Company incorporated in the City of London or elsewhere And likewise all Hundreders in any County which are liable to be sued upon the Statute of Huy and Cry where Robberies are committed and Felons escape such Bodies of Men being very numerous and no single Person in his natural capacity bound to answer in any Action whatsoever but yet they may be proceeded against to be made appear and answer in the same manner and way as the Peers of this Realm may by Distring ad infinitum and after Judgment had any of their Goods and Chattels may be taken in Execution and if it be in the Case of Corporations they must by their bye Laws apportion the Levari upon the rest and thereby ease him or them whose Goods are taken and if it be in the case of Hundreders then any Person or Persons grieved may complain to two of the Justices of the Peace of the County wherein such Robbery was committed whereof one to be of the Quorum who have full power by the Statute of 27 of Eliz. cap. 13. to tax and rate the said Hundred for and towards an equal contribution of the damages recovered that so the burthen of the Execution may
Appearance after reversal of the Outlawry it is thus The first thing the Defendants Attorney must doe is to come to the Filizer of the City or County where the Action is laid and know of him when the Plur. Capias was returnable and then search the Filizer's Rolls of that Term and there he will find the Capias alias and plur Exigent and Proclamation awarded together with the return of the Exigent to the Quinto exact upon which the Defendant stands outlawed of all which he must take a Copy from the Roll and then come to the said Filizer to enter upon the said Roll by way of averment a defect in the proceedings either against the Statute of the one and thirtieth year of Queen Elizabeth for want of a Proclamation or otherwise as the case may require and then he prepareth his Bail-piece ready and bringeth the Bail into Court together with the Defendant and then causeth the bundle or file of Writs of Proclamations to be brought into Court and by motion of Counsel at the Bar alledging the want of a Proclamation and upon due search of the said File by the Secondary of the Court and none appearing to the Court to be filed the Outlawry is reversed by the Court which is always pronounced by the Seniour Judge of the Court if he be present if not by the next which reversal together with the names of such Bail who undertook that the Defendant shall appear to a new Original Writ to be brought by the Plaintiff within two Terms against the Defendant and to satisfy the Condemnation if he shall be convicted is all to be entred by the said Filizer up to the Process of Outlawry before entred for entring of which the Filizer's Fees are 4 d. the sheet And the Court of Common-Pleas have used to make such Entries as may appear by certain Orders Vide Praxis utriusque Banci fol. 108. in t alia of that Court made in the second year of Charles the First The words amongst others are these And it is farther ordered that all Reversals hereafter made shall be entred upon the same Roll where the Exigent is awarded being the most proper and fittest place for the safety and quiet of all Persons outlawed and their Executours to find the said Reversal in future times and not upon other Terms and Rolls as is now used Which also by the several Precedents of Entries of Reversals before-mentioned may appear to have been anciently the practice of this Court. And in these and the like Cases the Defendants do in the Common-Pleas appear by Attorney But in this Court the Defendant is obliged to appear in person with his Bail except this Court upon motion give leave to the Defendant to reverse per Attornatum The reason may be presumed to be this because upon all Outlawries in Criminal Causes in this Court the Defendants have been heretofore and now are obliged to appear in person to answer the contempts of the Law to the King and thereby they were immediately taken into custody for such contempts or otherwise disposed of at the discretion of the Court and in every civil Cause likewise it is a great contempt indeed of the Law for the Defendant not to appear after so many several Writs as go out against him before he is outlawed But yet a late Parliament thought the appearing in person so great a grievance to the Subject that it did receive a debate in the House of Commons upon a Bill then brought in but no Act passed thereupon for want of time as is presumed and whether hereafter it may not be a matter fit to be farther debated I shall leave to the wisedom of the great Council of this Nation when assembled in Parliament But to return it may be such Defendant hath been obliged to appear in person out of that high respect that ought to be given to the grandure of this Court the King himself as before is said being supposed sitting there And to be outlawed formerly in the Reign of King Alfred and untill a good while after the Conquest for Felony as my Lord Coke hath it in his First Institutes Cap. Villenage Sect. 197. fol. 128. b. was very dangerous for such Persons might have been put to death by any man as well as a Wolf that hatefull Beast might For utlagatus waviata Capita gerunt Lupina But then saith he no Man could have been outlawed but for Felony But you may see there how this Inhumanity was restrained and altered in the Reign of Edward the Third And now our Laws are made more tender of life though it be of such great Malefactours that so they may be punished or discharged by the hand of the Law onely which nulli facit injuriam And although then none could be outlawed but for Felony yet as he saith there that afterwards in Bracton's time and somewhat before Process of Outlawry was ordained to lie in all Actions that were Quare vi armis which Bracton calls Delicta for there the King shall have a Fine But since saith he by divers Statutes speaking in general of such Proceedings and not of any Court in particular Process of Outlawry doth lie in Account Debt Detinue Annuity Covenant Action sur le Statute de 5 Rich. 2. Action sur le Case and in divers other Common or Civil Actions But to go on he saith farther in his Chapter of continual Claim Sect. 437. That there may be other Causes of reversal besides the want of a Proclamation and that by plea for matters apparent as in respect of a Supersedeas variance or other matter apparent in the Record And yet in these Cases saith he some hold That in another Term the Defendant is driven to his Writ of Errour And farther if the Defendant be arrested by a Capias utlagat he ought not to be discharged out of custody without a Supersedeas for the same as appears by the last mentioned Statute of the 13. of the now King the like certainly is requisite in case where his Goods or Chattels are taken or else if he be taken and would reverse the Outlawry then he may have a Habeas corpus to bring him into Court to reverse such Outlawry But if all the Process to the Outlawry be well returned entred and filed then there is no way to reverse the same but by Writ of Errour which comes in the next place to be handled How to reverse an Outlawry by Writ of Errour IT hath been a received Opinion that no Writ of Errour lies returnable in this Court upon any Action brought by Original Writ in this Court but that it must be returnable in the High-court of Parliament but certainly that must be intended where Judgment is had and obtained upon such Action for every Writ of Errour supposes a Judgment of the Court given for the words in every such Writ are Si Judicium inde reddit sit but in this case where it is no
to cause him to appear if he will and if he will not then upon returns of the Exigent an Outlawry goes out against him So that in many actions there are five Writs commonly sealed in this Court in one cause before the appearance of the Defendant and after appearance in each cause a Supersedeas and for non appearance an Outlawry and divers other Writs All which matters duly considered would certainly as much augment the Revenue of the Crown of England as it hath done formerly when this practice by original Writ flourished in this Court Thirdly As to the antiquity of his Office It is evident and will be so to any person that will take the pains to search the Records of this Court in the Reign of Edward the Third that there were then such Officers as Filizers in this Court For that at the bottom of the Plea Rolls of this Court are set their Names as so many several * Or chief Clerks Prothonotaries to such Writs and Issues and other proceedings as they then entred and it is possible to prove it also before that time but this being above 300 Years since may be thought sufficient and for above 200 Years past it appears by the Statute of the tenth year of the Reign of Henry the 6th Cap. 4. and the 18th of the same King Cap. 9. where in both those Statutes the Filizers and Exigenters of this Court are mentioned that there were then such Officers in this Court and to go much farther if it were necessary it is rational to presume that there were such before the Norman Conquest For that my Lord Coke in his Preface to his third Report saith That Writs of Assise and other Original Writs were returnable into the King's Courts before the Conquest and that as Justice Fitzherbert saith in his Preface to his Book called Natura Brevium that seeing they be speaking of such Writs the Rules and Principles of the Science of the Common Law they do manifestly prove that the Common Law of England had been time out of mind of man before the Conquest and was not altered or changed by the Conquerour And therefore certainly if such proceedings then were by original Writs it is no Foreign presumption to believe there were such Officers as Filizers who made out such Writs Also under the name and Office of a Filizer in this Court is comprehended the Exigenter The Clerk of the Supersedeas the Clerk of the Outlawries and the Clerk of the Jurours and therefore it will be necessary to consider all these places apart and distinct the one from the other and to observe what they do in these several Capacities And First As Filizers they have and 1. As Filizers do and of right ought to make out and enter upon all Actions brought by original Writ all Writs and Process whatsoever some whereof are these viz. all Cap. Als. Plur. Testat Cap. Distring in Trespass and trespass on the Case and in every suit qui tam. c. in every Rapt Custod in every trespass contra formam ordinationis in every ejectione firme and such like special Actions every Cap. Als. Plur. in appeal of Murther Robbery and Maihm every Resummons Habeas Corp. Distring in Attaint and Writs of Withernam Second deliverance and retorn habend and venir fac subpoena Distring Jur. and divers other such like Writs They likewise take and enter all appearances general or special wherein good bail is required upon original Writs they enter all general and special Imparlances they make Copies of writs of Attaint and they give Rules ad narrandum ad placitandum ad replicand and the like and enter Nonsuits for want of declaring and these things and the like they do as Filizers Secondly As Exigenters they make 2. As Exigenters out and enter in the actions before mentioned and such like actions all and every Writ or Writs of Exigent and Proclamation Allocat Exigent post Cap. Scir fac sur general ou special pardon le Roy and such like Writs Thirdly As Clerks of the Supersedeas 3. As Clerk of the Supersedeas they make out and enter upon the Exigent roll in the said actions and such like all Writs of Supersedeas quia improvide or otherwise all Writs de non molestando and other such like Writs both as well upon appearance of the Defendant to the Exigent as after that the Defendant is outlawed and either his Body taken by a general Cap. Utlagat or his Lands or Goods by a special Fourthly As Clerk of the Outlawries 4. As Clerk of the Outlawries they make out and enter in the said actions all the said Writs of general and special Cap. Utlagat and deliver them of Record and transcribe such special Capias and Inquisition when returned into the Exchequer and make out likewise the Cap. pro Fine Regis sur capiat and other such like Writs and if such Outlawry be reversed they enter up such reversalls Fifthly As Clerks of the Jurors They 5. As Clerk of the Jurors likewise make out and enter in the said Actions all Distring Jur. or Habeas Corpor and deliver them of Record and as is said before attend in Term-time the grand Jury for the County of Midd. or in whatsoever other County the Court of Kings-Bench shall sit They are Attorneys of this Court as soon as they are admitted Filizers and do practise if they please as Attorneys by Writ or Bill but they cannot enter any thing by Bill on the Prothonotary or chief Clerks rolls but one of his Clerks must enter for them Their Writs and Process are always filed with the Custos Brevium and not with the said Prothonotary or chief Clerks and they do many other things belonging to their said Offices too long here to insert and are therefore here spared because more of this matter may be found in the Copy of the presentment before mentioned placed at the end of this Book In the Court of Common-Pleas the Process to the Outlawry runs through divers Officers or Clerks hands but in this Court it is all in one person the Filizer which is such a sole and absolute Officer and his Office was and is much after the same manner executed as the Prothonotary's Office of Monmouth and there was no more but one such Officer in this Court to all the ends and purposes aforesaid both before and in the time of Henry the 6th nor since in which time the practice by original Writ in this Court was greater than that by Bill Let this suffice by way of Preface to shew what Writs and Process do belong to the Filizers of this Court to make out and enter It is most certain and I make no doubt but that it will be granted me that all the supreme Courts of Common-Law at Westminster through length of time have very much intrenched the one upon the other as might easily be made appear but that being nothing to the matter
in hand shall be passed over and that it is as difficult to reduce their ancient practice into its right and due course as it is to divert the water of Thames from running in its now Chanel but yet certainly it is not so hard a task for any of the said Courts to set to rights the different practice within the same according to its ancient use and Custome and thereby hinder one Officer from intrenching upon another which brings me to the first matter intended to be handled which is as follows THE FILACER'S-OFFICE IN THE Court of King's-Bench That the Practice by original Writ is First of very great antiquity in the said Court FOR the proof whereof it is necessary to observe that heretofore and now at this time also there are three several ways of proceedings in this Court that is to say by original Writ by Bill and by Attachment of privilege The First Grounded upon a Writ issuing out of the high Court of Chancery returnable in this Court The Second Grounded upon the Custome of the Court. The Third Grounded upon the grace and favour of the Court besides divers other proceedings upon Actions removed out of inferiour Courts by Writs of Recordare Certiorari Habeas Corpus and the like into this Court and although my Lord Coke in his Preface to his eighth report saith that all the four supreme Courts at Westminster be all the King's Courts and have been time out of Memory of Man so that no man knoweth which of them is most ancient yet without doubt it may be easily known what was the original practice in this Court for the said Lord Coke treating of this Court in his 4th Institutes Cap. 7. saith that if a Writ be returnable coram Justic nostris apud Westm it shall be returnable in the Common-Pleas but if it be returnable in this Court it must be thus coram nobis ubicunque fuerim in Anglia and takes no notice of any Writ returnable in this Court at a certain place and farther he saith in the same Chapter that in former times some ill disposed Clerks of this Court because they could have no original Writ out of the Chancery for Debt returnable in this Court they would sue out an original Writ in an action of trespass a mere feigned action and so proceed to the Exigent whereas in truth the cause of Action was for Debt and when the Defendant appeared c. all the former proceedings were waved and a Bill filed against the Defendant for Debt This he there saith is an unjust practice in derogation of the dignity and honour of this Court and worthy of severe punishment according to the Statute of Westm the First Cap. 29. when it is found out And now in these times although some Clerks and Attornies of this Court doe not the very self same thing yet they come very near to such irregular practice for that they do very often proceed by original Writ in such actions as they may justly proceed in as far as the Exigent and when the Defendant appears thereunto by Supersedeas then is there a Bill filed or Declaration delivered in Debt or any other action by consent of the Attornies on both sides supposing the Defendant to be in Custod Marescalli c. as if he had been arrested by a Bill of Middles or Latitat that supposes a Bill in this Court and so waive the whole former proceedings by original Writ and proceed on to Judgment by Bill a matter certainly worthy to be taken notice of by this Court as an abuse put upon the ancient proceedings by original Writ therein and not onely against a known rule or maxim in Law expresly Quod omnis brevis Judicialis sequitur suum Originale but also may prove very prejudicial to the Plaintiffs in such actions if the same should happen to be taken notice of there being nothing in Court as a foundation to warrant such proceedings by Bill and so all as it were coram non Judice And it seems that that great and learned Lawyer looked upon all Writs whatsoever returnable in this Court to be returnable coram nobis that is coram Domino Rege ubicunque tunc fuerit in Angl. this Court being moveable with the King's Person and not local as the Common-Pleas is and therefore called the Kings-Bench and that this is the natural and genuine style of this Court may be gathered from hence that several of the former Kings of England have sate personally in this Court as the said Lord Coke saith in the same Chapter and as Speed in his Chronicle fol. 595. observes that Henry the Third sate in person with his Justiciars upon the Bench at the Arraignment of Peter de Rivallis and others and that he gave Sentence against him and sent him to the Tower And also Sir Richard Baker in his Chronicle fol. 205. saith that Edward the Fourth sate in Michaelmas-Term in the Second year of his Reign three days together publickly with his Judges in this Court to acquaint himself with the orders of the Court and to observe what needed reformation in it either at Bench or at Bar. The former of these Observations together with some other matters in the like nature are reported by Mr Serjeant Rolls in the first part of his abridgment fol. 535. And I believe it to be the hearty desire and affectionate wish of every Loyal Subject especially of the long Robe that his now Majesty would be graciously pleased once in his Reign at the least to honour this his peculiar Court with his most glorious presence a sight certainly that would be in its self so transcendently excellent that it would parallel if not exceed that of his Coronation But to come more close to the matter proposed It appears as is said before if the most ancient Records may not possibly be by some against usual practice as they have lately been esteemed the weakest evidence that in the beginning of the Reign of Henry the Sixth which is now above two Hundred and Twenty years since and are the oldest Rolls now remaining in the upper Treasury of this Court and long before that time also by Records in other places and from that time untill about the beginning of Queen Elizabeth's Reign The proceedings in this Court were more by Original Writ than by Bill The several Terms and Number Rolls and the years in which they are being too numerous here to insert and would have made this Book larger than intended and therefore it is left to the Judicious Reader if he pleases for his own satisfaction at his leasure to search the same Records which are very well worthy the labour and trouble of any that desire to be acquainted with antiquity of this nature And this may be sufficient to shew that the Practice by original Writ although now much decreased from what it was at first hath been very anciently used in this Court That it prevents in a great
not lie wholly upon some few of the said Hundreders and thus much as to the Persons Now as to the Actions which lie not Secondly as to Actions in this Court but by Original Writ no Quare impedit Writs of Right Replevin and such like come into this Court but either by Original Writ primarily or else Plaints are entred in Inferiour Courts and removed hither by several Writs which are in their own nature as so many Originals and returnable coram nobis ubicunque c. as Writs of Recordare fac loquend Acced ad Cur. Certiorar Writs of Errour and the like and upon these there can be no prosecution by Bill in this Court So that if they could not be proceeded in by Writ this Court would lose and want much of the practice and business it now hath and hath long had and I wish long may have and the same or most part of it would be brought in the other Courts of Common Law at Westm And thus you see that against some sort of Persons in their single Capacities and against other sort in their politick Capacities and against some others as men inhabiting in any Hundred and in some sort of Actions there is no other way to proceed in this Court but by Original Writ That it is most agreeable to the Statute Fourthly lately made for setting forth the cause of Action in the Writ IT hath been formerly the practice in this Court by Bill of Middles or Latitat and process thereupon to arrest in trespass generally not mentioning the cause of action therein and yet obliging the Defendants to put in good Bail to the Plaintiff's Suit by marking the backs of such Writs or Process for good Bail and giving the Sheriff notice to take good Bail to such a Sum whatever the nature and cause of action was and by marking the Roll wherein such Writs and Process were entred for good Bail by drawing a Line under the Defendant's name and writing over it bon Manucapt and then the Attorney for the Defendant ought not to file a common Bail without searching such Rolls But this hath been thought very inconvenient and unreasonable by a late Parliament that Defendants should be obliged to put in Bail to the Sheriff to that of which they understood not any thing of the cause of action which made it very difficult to such Defendants to procure Bail especially if they happened to be arrested in places where they were strangers and therefore ought the rather to be able to satisfy such Persons as would be Bail for them what the matter and cause of action was for which in this way of proceedings the Defendants never knew untill they came at the return of such Writ or Process to put in good Bail above as it is usually called that is before some Judge of this Court and then received a Declaration And if they did not put in good Bail then such Bail-bonds as were given to the Sheriff for their appearance were forthwith put in suit which mischief being seen and considered of both in this Court and in the Common-Pleas was by the said Parliament remedied by an Act made in the thirteenth year of his now Majesty's Reign cap. 2. at the second Meeting of that Parliament The words of that Act amongst other matters are these For remedy and prevention of which so great growing evils and mischiefs and also for discouraging all frivolous and unjust Suits and causeless arrests for the future Be it enacted by the King 's most excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the authority of the same That from and after the twelfth day of February in the Year of our Lord one thousand six hundred sixty and one No Person or Persons who shall happen to be arrested by any Sheriff Under-sheriff Coroner Steward or Bayliff of any Franchise or Liberty or by any other Officer Minister Under-bayliff or other Person or Persons whatsoever within this Realm having or pretending to have authority or warrant in that behalf by force or colour of any Writ Bill or Process issuing or to be issuing out of his Majesty's said Courts of the King's-Bench and Common-Pleas or either of them in which said Writ Bill or Process the Note the true cause of action is to be expressed particularly certainty and true cause of action is not expressed particularly and for which the Defendant or Defendants in such Writ Bill or Process named is and are bailable by the Statute in that behalf made in the three and twentieth year of the Reign of the late King Henry the Sixth shall be forced or compelled to give Security or to enter into bond with Sureties for the appearances of such Person or Persons so arrested at the day and place in the said Writ Bill or Process specified or contained in any penalty or sum of money exceeding the sum of forty pounds of lawfull money of England to be conditioned for such appearances and that all Sheriffs and other Officers and Ministers aforesaid shall let to bail and deliver out of Prison and from their and every of their custodies respectively all and every Person and Persons whatsoever by them or any of them arrested upon any such Writ Bill or Process wherein the certainty and true cause of action is not particularly expressed upon security in the sum of forty pounds and no more given for appearance of such Person or Persons so arrested unto the said Sheriff or Officer aforesaid according to the said Statute in the said three and twentieth year of the Reign of the said late King Henry the Sixth in that behalf made and provided I have recited this part of the Act in his verbis for that it may be of use to them that have not the Act at large and that it may be seen how expresly and to a tittle it is fulfilled in the proceedings by Original Writ For it hath ever been the constant practice in such proceedings to express the true cause of action particularly in the Original Writ and in every Writ of Capias alias and plur thereupon to arrest and also to what Sum the Plaintiff layeth his damage that so the Defendant may procure Bail accordingly And if it happen as oftentimes it doth that such Defendant either is not arrested or doth not appear upon any of the said Process taken out against him but suffers himself to be so far proceeded against as to the Exigent yet still that he may know what he is sued for there is mention made at large of the express cause of action both in the Writ of Exigent and also in the Proclamation directed to the Sheriff where it is known or supposed the Defendant doth inhabit that so he may take care either by himself or his Attorney to appear thereunto and thereby prevent if he will his being outlawed By all which it appears that
with the Custos brevium if it be not in Middlesex if so then with the Lord Cheif Justice and some time before the day in Banck which is always the Essoin-day of the next Term after any Assises if the action lie in the Country or if in London or Middlesex then before the next Essoin-day after the Tryall he bringeth the Issue to the said Filizer to be entred upon his Rolls and in the aforesaid Venire facias and Distring there need not to be 15 days as in other process before Issue joyned between the Teste and return of each Writ and this appears by the Statute before mentioned made in the 13th year of his now Majestye's Reign The words of which Statute amongst other matters are these And whereas very many Suits commenced by Original Writs have been protracted and long delayed from Judgment and Execution by reason of the necessity of having fifteen days at the least between the days of the Teste and the days of Return of Writs now used in personal Actions and also in Actions of Ejectione firmoe for Lands and Tenements For remedy thereof and for the more easie expediting Trials and the better and more speedy executing of Judgments for the time to come Be it farther enacted by the Authority aforesaid That in all Actions of Debt and all other personal Actions whatsoever and also in all Actions of Ejectione firmoe for Lands or Tenements now depending or which at any time hereafter shall be depending by Original Writ in either of his Majesty's Courts aforesaid after This Court of King's-Bench being before mentioned in this Statute any Issue therein joined to be tried by a Jury and also after any Judgment had or obtained or to be had or obtained in either of the Courts aforesaid there shall not need to be fifteen days between the Teste-day and the day of Return of any Writ or Writs of Venire facias habeas Corpora Jurator or distring Jurator Writs of Fieri facias or Writs of Capias ad satisfaciend and that the want of fifteen days between the Teste-day and the day of Return of any such Writ shall not be nor shall be assigned taken or adjudged to be any matter or cause of Errour any Law Custome Statute Course or Usage to the contrary thereof in anywise notwithstanding Provided nevertheless that this A Proviso not to extend to a Capias and Exigent thereupon after Judgment or to a Capias ad satisf to make the Bail liable Act nor any thing therein contained shall not extend or be construed to extend to any Writ of Capias whereon a Writ of Exigent after Judgment is to be awarded nor to Capias ad satisfaciend against the Defendant in order to make any Bail liable but that the same continue and be as if this Act had never been made But to return to our former matter when the Attorney for the Plaintiff hath obtained a verdict and given rules and signed his Judgment he then entreth it up to the Filizer's Issueroll as aforesaid and taketh for his Fees the like Fees as by Bill But if the Defendant appear not at all but suffer himself to be returned outlawed upon the Exigent or Allocat then he bringeth the Exigent to the Filizer that made it out or else he fileth such Exigent himself with the Custos brevium of this Court and then getteth a Certificate from him that it is filed and bringeth it unto the Filizer and then he will make him out either a general or special Capias utlagat And this is all at present that may be thought necessary in this matter by way of direction Onely this let him take notice that Hilary Term is not so convenient a Term to begin to sue to the Outlawry in as other Terms are for the Defendant will not be outlawed then under four Terms although the Action be laid in London because of the short vacation that is between Easter and Trinity Term and in any other he will in three if the Original be returnable the first return of the Term. Also to observe in his Writs if he make them himself and carry them to the Filizer to be signed that as a man is always said to be utlagat outlawed So a Woman is always said to be Waviat waved that is to say derelicta left out or not regarded because Women are not by the Law obliged to be sworn in Leets to the King as Men are And now for the testes and returns of his Process he is hereby referred to a Modus return brevium placed toward the end of this Book And farther let him observe that if in an action of the Case where the cause of action is at large set out the damage be laid in the Writ of Capias to arrest to Ten pounds or above his Client ought to have good Bail but not so if the Defendant appear upon the Exigent or Allocat although it be laid 500 li. damage And if such Action be laid in London the Defendant will be sooner outlawed in respect of the Hustings there than in any County for that they are held in less time than the County Courts are holden in for there must be five Hustings returned upon the Exigents in London and five County Court days in the Counties at which the Defendant hath been called and hath not appeared Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the reversal of the Outlawry AS to the appearing upon the Arrest Appearance upon arrest if special Bail be required it must be thus The Defendants Attorney must come to the Filizer where the Action is laid and enter his special appearance that is by giving in a note to him of the Bail who they are and where they live and then the Filizer will go with him before some Judge of this Court and put in the Bail before him and then the Defendant's Attorney must give in a note of the Bail and before what Judge put in unto the Plaintiff's Attorney and if he accepts of the Bail he puts his hand to the Bail-piece that he doth so and then he fileth it with the Custos brevium of this Court and if the Plaintiff's Attorney excepteth against the Bail the Defendant must get his Bail to justify themselves before the Judge and yet if after that the Plaintiff is not satisfied with the Bail the Defendant must either put in other Bail or else justify the same upon oath in the Term-time in Court and then the Plaintiff is bound to accept them And as to the Appearance to the Exigent appearing on the Exigent there as is said before no Bail is to be given but onely the Defendant is to enter his appearance with the Filizer per Attorn suum and then taking from him a Supersedeas Quia improvide suggesting such appearance in the Writ which Writ he must deliver to the Sheriff And as to the appearing upon the reversal
must needs be notorious in what County they arise the Attorney knowingly laying them out of their proper Counties unless in the cases before expressed or for such other causes as shall be allowed by the Judges of the Court and duely made to be true to be severely punished That although the Declaration be delivered seven days before the last day of the next preceding Term or after yet before Plea upon Oath made the visne may be changed upon motion in the said Transitory actions the next Term after and the Defendant to plead to the new action as he should have done in the other without delay That the visne may be changed upon Oath before though the Defendant come in by Exigent And in Styles his practical Register fol. 533. it is said that in Transitory actions the Plaintiff after the Essoin-day of the subsequent Term after the appearance shall not alter his own visne though he would pay Costs or give Imparlance which seems to imply that he may do it the same Term of the appearance with leave of the Court upon motion as aforesaid But this being a discretionary act of the Court little else shall be said but left to the pleasure of the Judges of this Court who never do it without they see some necessary reason for it How to proceed so as to have a special Capias Utlagat together with the Inquisition thereupon taken sent into the Exchequer and to get a Lease from the King of the Defendants Lands THe way of this proceeding in this Court is much different from that in the Court of Common-Pleas For there the Attorney for the Plaintiff bringing in the special Capias Vtlagat with the Inquisition thereupon taken annexed into the Outlawry Office of that Court and delivering thereof to the Clerk of the Outlawries there the said Clerk forthwith maketh a Transcript of the Writ Return and Inquisition in a large Exemplifying Character and setteth his own name to the bottom of it and then he delivereth it to the Attorney for the Plaintiff who carrieth it into the Exchequer But in this Court the practice is and long hath been to go a farther way about and what the reason is for it is not well known but conjectured to be either that of the Grandeur of this Court as is said before or else to punish the Defendant the more for adventuring to run so high a contempt against the King his Crown and Dignity as not to appear in this Court after so many several Process against him but to suffer himself to be Outlawed and this to be by a pecuniary punishment arising by the charges of getting a Lease of his Lands from the King which must all come out of his Estate at the last but not to detain you any longer the way is thus The Attorney for the Plaintiff must bring the special Capias Vtlagat and Inquisition annexed into that Filizer's Office who made it out for he as is said before is Clerk of the Outlawries as well as Filizer and he will make you a Transcript of the Writ Return and Inquisition as is before said the Clerk of the Outlawries doth in the Common-Pleas Then the said Attorney taketh back the same together with the said Transcript and then fileth the Writ and Inquisition with the Custos brevium of this Court and then goeth to the Cursitor of the County where the Lands lie mentioned in the said Inquisition and he maketh him a Writ of Certiorari to certify the said Writ Return and Inquisition so filed as aforesaid into the high Court of Chancery which Certiorari he carrieth to the said Custos brevium who alloweth the same with the Lord Cheif Justice of this Court and then the Attorney delivereth the said Transcript to the Custos brevium who affixeth it to the Certiorari and then the Custos brevium sealeth up the same and delivereth it to the Attorney under Seal who carrieth it forthwith into the Petty-Bag-Office belonging to the said high Court of Chancery where it is filed of Record Out of which Office the same is sent by a Writ of Mittimus into the Court of Exchequer into the King's Remembrancers-Office there where it is likewise filed of Record after which the said Attorney for the Plaintiff retaineth one of the Attornies of that Office who will prosecute the matter so in that Court as to gain a Lease from the King to be granted to the Plaintiff who shall thereby hold the Lands demised for the Term therein mentioned that is to say for so long time as the same shall remain in the King's hands And if after the Outlawry shall be pardoned or reversed by due course of Law and the Defendant thereby restored to all that he hath lost by that Outlawry then the Attorney for the Defendant applying himself to one of the said Attornies of the King's Remembrancer's Office aforesaid and making the same appear he will get the King's Hands taken off the Estate either by sueing out a Writ of Amoveas Manus or by Petition or motion in Court or otherwise according to the custome used in that Court Somewhat concerning the drawing of Declarations by Original Writ IT hath been formerly the practice both of this Court and the Court of Common-Pleas to repeat the cause of Action twice in the Declaration that is to say to the Writ and to the Count as may appear both by Rastal's and Coke's Books of Entries but it is now in some sort of Actions left off in the Common-Pleas and in this Court also by the former orders mentioned among others it was ordered For avoiding of long and unnecessary repetitions of the Original Writ in Actions upon the Case and Personal Actions upon Penal Statutes That Declarations in Actions of Trespass upon the Case or personal Actions of any general Statute namely Huy and Cry Monopolies or for a Suit in the Admiralty and such like other than Debt repeat not the Original Writ but onely the nature of the Action viz. A. B. was attached to answer C. D. in a Plea of Trespass upon the Case or in a Plea of Trespass and Contempt against the form of the Statute and that for the avoiding of the Common Bar and new Assignment the Declaration upon an Original Quare clausum fregit may mention the place certainly and so prevent the use and necessity of it But by these Orders it doth not appear none but long Actions being therein mentioned that Trespass and Trespass and Assault and Trespass and Ejectment being very short Declarations are included therein but left to be declared in as formerly both as to the Writ and Count and so to be laid twice as heretofore hath been used in this Court The manner of removing Actions or Plaints out of Inferiour Courts into this Court and after that how to proceed in them AS to removing of Causes by Writs of Errour Certior Habeas Corpus or the like I shall pass them over as being matters very
Machell Vic. Afterwards the Latitat followed as now it is called but then rather styled a Testatum into any other County and I find it differs not at all from the now present Latitat but onely in a few words in the latter part of this Sentence following and although few yet very remarkable Super quo in Cur. nostra coram nobis testat existit quod pred A. B. latitat discurrit in Com. tuo mala quam plurima ibidem perpetrand as may appear by the Files of Latitat's there remaining by which you see that both the Plaint and Precept thereupon do suggest a tort or wrong by a Trespass done to the Plaintiff although possibly that was not the true cause of Action and afterwards suggesting in the Latitat a malefeasance by the Defendant perpetrated in another County and these Plaints and Precepts thereupon were so numerous then and the advantage of receiving and filing of them of so great moment that they have been formerly and are now likewise always excepted out of the grant to the Custos brevium of this Court by the Lord Chief Justice thereof as reserved to himself amongst other things therein excepted in these words except factur Record de Nisi prius in Com. Middlesex Transcript certification super brev errorum reception filation de lez Queriturs attachiament in eadem Cur. conservat Record de Attinct cum Feod ad inde pertinen ' as may appear by several such grants now remaining upon Record in this Court and then always such Bill or Precept went out first into that County of Middlesex where the King was then resident to take the Defendant if he might be found therein to answer the Plaintiff in such Plaint before there went a Testatum into any other County and that which was then really done as to the taking out of such Bill or Precept of Middlesex is now onely suggested in every Latitat So that when former Kings at any time have adjourned the Terms to any remote place in any other County upon any necessitous occasion as the Plague or the like as they have often done there hath always been a Bill or Precept taken out in that County to arrest any Defendant if within that County and if not then one always suggested in any Testatum or Latitat into another County and so it was no doubt when the Term was adjourned to Reading in Berkshire in the first year of the Reign of Charles the First and so it was likewise to my own knowledge when the Term of Saint Michael Anno Dom. 1665. was adjourned by our now Sovereign Lord the King unto Oxford by reason of the great Plague that then was raging both in the Cities of London and Westminster and the Suburbs thereof For then there was a Bill or Precept of Oxford to take any Defendant there Secondly Another reason may be drawn from the constant practice and course of this Court for many years as is elsewhere said to suppose every Defendant that is sued by Bill in this Court to be in Custod Mareschalli of this Court who really is not whereby to intitle the Court to a jurisdiction of the Cause and whereas the proceedings by Original Writ are by Capias Pone or Distring and the like in order to make the Defendant appear before the King in this Court the proceedings by Bill suppose him to have appeared and that he is in actual custody of the Marshall of the Marshalsey of this Court which if every such Defendant so were the now Prison of the said Marshall would not contain them no not if it were ten times as big as it is Thirdly Another reason may be this because sometimes it happens that the Attornies for the Plaintiffs have not had sufficient instructions from their Clients how to draw their Precipes to the Cursitor not knowing the true cause of Action and therefore for want of that have taken out a Latitat de placito transgr upon which the Plaintiff might have declared formerly in any Action untill of late as is before said it was enacted that a Defendant should not be held to bail except the true cause of Action were particularly expressed in the Writ since which time there is inserted in the Latitat not onely ad respondend the Plaintiff de placito transgr but also ac etiam billae ipsius Quer. versus ipsum Def. pro Centum libris de debito secundum consuetud Cur. nostrae coram nobis exhibend Or thus pro non performation promiss assumption ipsius Defenden ad dampnum ipsius Quer. Centum Librar secundum consuetud c. and so to vary in the ac etiam according to the nature of the Action and this being found formerly and also now at this day likewise to be a more easie and quick way to arrest the Defendant because it requires not so full a setting forth of the cause of Action in the Writ of Latitat as in Writ of Capias to arrest by Original it hath gained ground in this Court And as to that other matter how it hath come to pass that some Entries of Issues and other Proceedings have been made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls and this since the practice hath been so much by Bill the reason of it may be this FOR that the Clerks to the former chief Clerks of this Court for many years past have been permitted to practise as Attornies who very anciently as is conceived did not For the Reader is desired to take notice as is elsewhere before said that there are three sorts of Persons that now have privilege allowed them in this Court as Practisers That is to say First The Filizers of this Court styled as before Clerks of our Sovereign Lord the King assigned to inroll Pleas c. that is to say by Original Writ onely they made out all Process thereupon and entred them and all Issues joined thereupon and practised as Attornies as the Presentment hereafter mentioned sets forth Secondly The Clerks of the Office or Clerks to the chief Clerk of our Sovereign Lord the King assigned to enroll Pleas c. that is to say by Bill onely and these Clerks had Seats in the Ancient King's-Bench Office in the Temple which was burnt in the late dreadfull Fire of London The said Office it self was of so great and large an extent and the Seats so many in it that it looked more like a Church than an Office and incited Strangers to offer up their Devotions there when at first they came into it it was as long taking in some small rooms at each end of it which served for the Secondary for the Clerk of the Rules for the Clerk of the Declarations and the Clerk of the Doggets as Westminster Hall is broad which saith Speed in his Chronicle fol. 446. Sect. 31. is 74 foot of Assise with a proportionable breadth containing from end to end four rows of
aforesaid Salop. Bazil Hearne at his House in Basinghall Street Somers Robert Randall at Mr. Abbington's in Coleman Street Southamp Francis Caplyn at his House in Wineoffice Court in Fleetstreet Staff Michael Martyn Suffolk James Fuller aforesaid Surrey John Trye aforesaid Sussex Richard Aylwin War James Fuller aforesaid Westmorl John Hinde at the Horns in Bell Yard Wigorn.  Wilts Samuel Porter in Star Court in Friday Street Civ Cant.  C. Cov.  C. Bristol John Ayres at Mr. Philip's House in Wandall Court in Blackfryers C. Ebor.  C. Exon.  C. Glouc. Henry Ewen C. Lincoln  C. Litchf  C. Norw  C. Wigorn.  Vil. Not. William Bennet V. Kingst super Hul. William Osborne V. South Francis Caplyn aforesaid V. Pool  V. nov Cast super Tin  And where it happens that there is no Filizer any other of the above named Filizers may make out the Process and the Teste of the chief Justice is sufficient although without any Filizer's name to the same and such Filizer may also doe and perform all other matters whatsoever subsequent or belonging thereunto that so a failure of Justice in the proceedings may be prevented And when any change shall happen in any of the aforesaid Filizers by death or otherwise or any admitted into the vacant places it may be known of the Keeper of the Sign of the Latitats in this Court who keepeth a Book of the Names of the Filizers Clerks of the Office and Attornies at large of the said Court and the time when they were admitted FINIS THE TABLE THAT the practice by Original Writ is of very great antiquity in the Court of King's-Bench Page 1. That it prevents in a great measure the delay of Execution after Judgment had and obtained 6. That against some sort of Persons and in some sort of Actions there is no other way to proceed in the said Court but by Original Writ 9. That it is most agreeable to the Statute lately made for setting forth the cause of Action in the Writ 13. That the Filizers of the said Court have not onely made and entred on Record Writs and Process by Original but also entred Declarations Imparlances Issues Judgments and divers other proceedings thereupon and also have inrolled Indentures and all this upon their Filizers Rolls 19. Some directions in the way of practice by Original Writ in this Court 55. The King's Majesty's Fines upon Original Writs 59. Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the Reversal of the Outlawry 67. How to reverse an Outlawry by Writ of Errour 74. How to proceed to the Outlawry after judgment 77. Somewhat concerning Imparlances upon Suits brought by Original Writ 79. How to plead an Outlawry either in Abatement or Bar of any Action 84. Where Suits by Original Writ ought to be laid and when the Visne may be altered 86. How to proceed so as to have a special Capias utlagat ' together with the Inquisition thereupon taken sent into the Exchequer and to get a Lease from the King of the Defendant's Lands 88. Somewhat concerning the drawing of Declarations by Original Writ 91. The manner of removing Actions or Plaints out of inferiour Courts into this Court and after that how to proceed in them 93. Some reasons impartially offered to shew how it hath come to pass that the practice in this Court by Original Writ hath decreased and that by Bill increased and what hath occasioned some Entries of Issues and other proceedings to be made as well on the chief Clerk's Rolls as on the Filizer's Rolls 97. Some Precedents of frequent use both of Writs and the Entries thereupon and also Declarations Imparlances Issues Judgments and Defaults and other proceedings in Actions brought by Original Writ and entred by the Filizers 111. Le Capias Alias Plur ' Exigent 112. Le Foreign Proclamation 113. Le Allocatus 114. Le Supersedeas quia improvide ibid. Le general Cap ' utlagat ' 115. Le special Cap ' utlagat ' ibid. Intratio separal ' process de Cap ' Alias Plur ' Exig ' Proclam ' utlagaria reversat ' superinde 116. Le special ' Bail sur reversal del utlagaria 121. Le special ' Bail sur Arrest ibid. Supersedeas sur ' reversal del utlagar ' pro defectu Proclam ' ubi bona catalla Def. capt ' fuer ' per Breve de special Cap ' utlagat ' devant le reversal 122. Aliter ex assensu Attorn ' pro Quer ' sur ' Def. imposition ' Ball ' coram un ' Justic ' Cur ' 123. Breve de Cap ' ad satisfaciend ' Exigent superinde 124. Exigent post Cap ' puis un recovery pro dampnis in Commun ' Banco affirmetur in Cur ' hic sur ' brief de Errour 125. Breve de Pone sur ' un ' brief de Recordare ibid. Intratio inde 126. Breve de Distring ' super pone praedict ibid. Distring ' envers un ' Peer 127. Testat ' Distring ' sur ' nichil retorn ' envers un ' Peer ibid. Testat ' Pone sur ' tiel retorn ' envers un ' Peer ibid. Distring ' versus un ' Corporation vel Hundred 128. Un ' special Cap ' ad arrest ' ibid. Intratio inde ibid. Testat ' Cap ' superinde 129. Intratio inde ibid. Supersedeas in abatement del brief de Exigent quia Def. in ill ' nominat ' Miles quando fuit Miles Baronettus 130. Breve de Exigi fac ' post un ' Pone Cap ' retorn ' fuer ' Def. in contempt ' Dom ' Regis 131. Breve de Certiorar ' Vic' L. pro eo quod Exigi fac ' casualit ' perdit ' est super quo Def. fuit retorn ' utlagat ' 132. Distring ' Proclam ' en un ' brief envers un ' Corporation 133. Intratio de Imparlance in ascun action per original ibid. Scire fac ' sur ' pardon utlagar ' per Statut ' 134. Retorn ' superinde 135. Retorn ' habend ' ubi Quer ' fec ' defalt ' ibid. Intratio inde 136. Retorn ' habend ' alio modo ubi Quer ' fecit defalt ' breve de inquir ' de dampnis 137. Simile inquir ' de reddit ' aretro valor ' Averior ' capt ' post suggestion ' Def. in natur ' Cognition pro quodam annual ' reddit secundum Statut ' 138. Breve de secunda deliberatione 139. Non omittas 140. Intratio inde 141. Distring ' ball ' super cepi Corpus ibid. Intratio inde 142. Intratio de languid ' in Prisona super un ' Capias 143. Habeas Corpus licet languidus ibid. Intratio de amerciament ' Vic' pro non retornand ' breve de Cap ' Alias aut Plur ' c. 144. Distring ' nuper Vic' ibid. Intratio inde 145. Non pros ' pro defectu Nar ' post comparentiam super Exigi fac ' 146. Breve de Cap ' in Withernam
JVS FILIZARII OR THE Filacer's Office IN THE COURT OF King's-Bench Setting forth The Practice by Original Writ with several Precedents and other Matters relating thereunto and also a Presentment of the Fees of all the Officers in the said Court Very usefull for the Filacers and all other Practicers in that Court By JOHN TRYE of Gray's-Inn Esq Quod per Recordum probatum Non debet esse negatum LONDON Printed by the Assigns of R. and E. Atkyns Esquires for Richard Tonson within Gray's-Inn Gate next Gray's-Inn Lane 1684. TO THE Right Honourable FRANCIS LORD GVILFORD LORD KEEPER OF THE GREAT SEAL OF ENGLAND MY LORD SInce that by the hand of divine providence and the favour of our most gracious Sovereign deservedly confer'd upon You You are arriv'd to the highest Sphere in the high and honourable Court of Chancery that Officina Justitiae in which all Original Writs whatsoever are fram'd and out of which they issue forth and are returnable in all the Courts of Common Law whereby Process thereupon are made amongst others in this His Majesty's Court of King's-Bench I could not imagine with my self where to find a more fit just and honourable Patron than Your Lordship under the umbrage of whose Protection my weak Endeavours might be admitted shelter being very sensible what hazard I run in this most critical and sensorious Age without the affluence of Your Lordship's favour which I do humbly beg imploring your pardon if I have offended by this my too great presumption in regard I have not been so happy as to be so well known to Your Lordship as in the least to expect it It is a subject that I do not find hath been ever treated of as to the Court of King's-Bench by any Pen whatsoever and the path-way to it therefore being very rough hard and uneasie can never be made plain either to my self or others except it meet with Your Lordship's good opinion wherever you find the matter in it to be centred between Truth and Justice for both which I am most fully assured You are and will be a devoted Advocate My Lord I am the humblest of Your Lordship's Servants JOHN TRYE To the Impartial Reader AS Time is the Mother of all things out of whose vast Womb all matters and proceedings in Law whatsoever are form'd and fashion'd so after long continuance either through interest wilfulness or ignorance of some Practicers both in this and other Courts of Common Law many things therein are so alter'd and chang'd from what they were originally that they seem rather to have been Abortives than to have had a mature and timely production And thus I may say it is now with the practice by Original Writ in this Court for through all or some of the aforementioned causes it is as it were grown obsolete and the proceedings by Bill hath almost thrown that by Writ out of this Court I wish that by Bill all the happy success imaginable and do onely hope that this by Writ may be continued in this Court where it hath been formerly much used and as the Returns of such Writs import be as a shadow following its substance our now Sacred Majesty and his Successours wheresoever He or they shall be in England in which that He may long live and have a happy Reign is not onely the hearty desire but daily prayer of John Trye Gray ' s-Inn March 27. 1684. THE PREFACE BEFORE the several Matters in this Treatise come to be handled it will be convenient to say somewhat First To the Etymology of the word Filacer or Filizer Secondly To the nature of his Office and Thirdly To the antiquity of it And First As to the word Filacer or Filizer it is observable that Cowell in his Interpreter and the Book called The Terms of the Law likewise speaking of such Officers in the Court of Common Pleas say that it comes from the French word Filace i. e. a Thread on which as in that Court so in this it may be very well thus paraphrased That it is a Thread indeed without which anciently in this Court as well as in that there could have been no web or work made for the dispensing and administring of Justice and Right to all and a Rule that leadeth all Persons Plaintiffs in this Court so directly to their Rights that it will force the Defendants at last to appear and plead And although these Books do take notice onely of such Officers in the Court of Common Pleas yet as will appear hereafter in this Treatise former Statutes and those very ancient have and do make mention of such Officers as Filizers in this Court Or perhaps and most likely he was heretofore so called for that it may be he did not onely make out divers Writs and Process in his Office but did also thread or file up the same as the Custos Brevium of this Court now doth before ever there was any such Officer in this Court and being the King's Clerk in Court is always admitted into his Office by the Lord Chief Justice of this Court for the time being and by no other Judge thereof by delivery of a Parchment Roll of such his admission to him as Livery and Seizin of his place after that he hath taken the Oaths of Allegiance and Supremacy and this Oath following viz. A. B. You shall swear well and truly to The Filizer 's Oath upon his admission exercise the Office of a Filizer for the County of C. and also truly and diligently to extract all Fines Issues and Amerciaments due to our Sovereign Lord the King arising in your Office during the time you shall so remain Officer So help you God By which it appears that in his Office he is bound to serve the King as his Clerk and from him for that his service he hath time out of mind had a privilege to write or style himself Clerk to our Sovereign Lord the King assigned to inroll Pleas in this Court before the King himself being so styled in Cokes Book of Entries fol. 20. in a Case between Hughs a Filizer Plaintiff and Keme Defendant and entred in this Court in Trin. 7 Jacobi Regis rotulo 1490. and also in Hilar. 20. ejusdem Regis rotulo 5. in t Gosnold a Filizer Plaintiff and Dereson Defendant which said privilege hath also lately been allowed by this Court to be such upon Pleas in abatement unto Declarations filed against them in which these words ad Placita in Cur. Domini Regis coram ipso Rege irrotuland assignat have been omitted And in his Office he hath a Freehold for life granted him as may appear by the Entry of an admission of a certain Filizer on record and might be proved by divers other Precedents but one may suffice and may serve for other Entries in the like nature when granted upon a Surrender of the then present Filizer and if it be not upon Surrender yet with a little variation it may also serve
the proceedings in this Court by Original Writ heretofore were and now are such as are altogether agreeable to the late Statute so made as aforesaid for setting out the particular cause of action in the Writ That the Filizers of the said Court have Fifthly not onely made and entred on record Writs and Process by original but also entred Declarations Imparlances Issues Judgments and divers other proceedings thereupon and also have inrolled Indentures and all this upon their Filizers Rolls IF as is said before Records themselves will not with some be looked upon as they have lately been a disputable evidence especially when very ancient it is not to be doubted but that this assertion may be also very easily proved and why they should be thought the rather to be so because of their antiquity no more reason can be given for it that I know of than that an Act of Parliament now in force and unrepealed made two hundred years since should have less power to command obedience to it than one made but twenty years since nay certainly the antiquity of any proof should make it the better And should you here have an account as it is possible to be done but with great trouble of the several Entries that have been made by the Filizers of this Court upon their own Rolls for so they are called for distinction sake onely to differ them from the Prothonotary or chief Clerks Rolls for most truly and properly all the Rolls of this Court are the King's Rolls or Rolls of the King's-Bench and that for the space of two hundred years and upwards omitting the times before that it would but tire your patience and swell this Volume to be ten times as big as ever it was intended to be But as it is easie Pede Herculis to guess at the magnitude of his whole body so by some few that shall here be set down as plainly and as truly as they may be that they may be repaired unto if occasion you may guess at the multitude that might have been inserted and therefore some few in each King and Queen's Reign within the time aforesaid may be sufficient in all reason to prove this point And now to begin with the Reign of Henry the Sixth being as is said before the oldest Rolls that are in the upper Treasury of this Court and so to bring it down according to the search I have made to these times It appears in Paschae primo ejusdem Regis In whose An. H. 6. time the Filizers Rolls were always filed first after the Rotulo primo which hath usually been a richly guilded Roll with the King's Picture drawn in the first Letter of the word Placita sitting as it were upon the Bench in Court and it sets forth the Person before whom the place were and the time when the pleadings were held To all which the chief Justice his name is put as a Witness and then the Filizer's name that provided that Roll at the bottom of it And this ought to be filed in every Term it being a great ornament to the Rolls themselves and 't is a great neglect some-where to be charged that so many Rolls for some years past have been made up without it Nay all the other Rolls following are nonsensically titled if such a Roll be not filed before them For then follow the other Filizer's Rolls and then after them the Prothonotary or chief Clerks Rolls all with this Title upon them Adhuc de Termino c. T. c. whereas if this Rotulo primo be not filed there is no Term at all appears unto which the Adhuc can have any relation And somerimes in that King's Reign they have been filed promiscuously one among another but still the Filizer's Rolls have been filed first But to return to the proof omitting the entring of Process or Writs upon originals for that is allowed to be their due of all hands It appears in that Term omitting also for brevity sake the names of the Plaintiffs and Defendants and their Attornies and the nature of the Action in rotulis 6. 9. 23. 44. 45. 58. 65. that several Filizers of several Counties entred several Issues and their names are upon the bottom of each Roll and in Mich. 2. ejusdem the like in rotulis 10. 14. 16. 18. And in the Reign of Edward the Fourth in Mich. 4. ejusdem An. Ed. 4. Regis in Rotulis 18. 57. 60. 68. the like Entries and in Paschae 5. ejusdem Regis the Rolls not being numbred but the Filizers names at the bottom there are several Issues entred and as for the Reign of Edward the Fifth it being not An. Ed. 5. three months long and the Reign of Richard the Third not three years long An. R. 3. and very troublesome they were in this search wholly omitted In Hilary 2 Henrici 7. Rolls not numbred several An. H. 7. An. H. 8. Issues entred Mich. 3 Henrici 8. rotulis 43. 49. 54. the like both as to Issues and Judgments by nichil dicit in Paschae 23. 24. ejusdem Regis the like in both Paschae 24. 25. ejusdem and Paschae 25. 26. and Paschae 26. 27. and Paschae 27. 28. the like in all these Terms Rolls not numbred but are to be found filed at the beginning of each Term and in Hilary 36. ejusdem Regis rotulo 14. is the Entry of an Outlawry in an Appeal of Murther and Paschae 37. an Issue and Judgment after a Verdict And in Hilary 1 2 of Edward the Sixth rotulis An. Ed. 6. 2. 3. 12. aliis rotulis the like Issues in Trin. 7. ejusdem rotulis 2. 8. 11. the like usque rotulum 20. In Trin. 1 Mariae rot 10. 12. 13. 15. and divers An. Mariae other Rolls the like In Paschae 1. 2. ejusdem several Issues Trin. prox the like Mich. prox rot 6. 7. 8. and other Rolls not numbred the like and Judgments Hilary 1. 2. the like in rotulis 13. 16. and in Mich. the 26 and 27 of Queen Elizabeth rotulis An. Elizab. 1. 2. 4. 16. 18. 19. and others not numbred there are two Appeals of Murther and one of Robbery and several Issues and special Pleadings In Mich. 36. 37. the like as to Issues In Paschae 44. rotulo 10. a Quare Impedit between the Queen and the Bishop of Hereford And in Paschae 5 Jacobi Roll not numbred there is An. Jacobi an Indenture entred by Howard a Filizer upon his own Roll in Trin. 7. an Issue the Roll not numbred in Hil. 9. Mich. 12. Hil. 12. Trin. 13. Hil. 13. the like Issues and Judgments by Nil dicit and Non sum informat But all these Kings and Queens Reigns have not been gradually searched in every Year and Term for it would have been too great a labour but onely some few to shew that there were no Times in which the Filizers did discontinue entring
19. the said Merefield entred an Issue wherein John Brewster was Attorney for the Plaintiff and now living and a Clerk to the now cheif Clerk and one Coxe for the Defendant it was in London Non assumpsit inter Hardman and Hayes Trin. Mich. prox the like Hil. 1658. several Issues one that the said Merefield entred for one Peter Naylor Attorney for the Plaintiff and Clerk then to the then and now cheif Clerk as able and knowing a man in Clerkship as any of his time fit to have made a Secondary of and after the Plea a relicta verificatione signed by the then Secondary Trin. 1659. Roll 12. 13. 14. an Issue and two Indentures Mich. prox Roll. 13. 14. 15. three Indentures entred And now we are come to the times of the happy restauration of his now most Sacred Majesty let us see therefore what hath been the practice lately for these twenty years and upwards last past It appears in Mich. 12. Caroli Secundi Rotulo 19. that an Indenture is there by Stone the Filizer entred Paschae 14. Rotulo 18. Sommers Ann. Car. Secundi Filizer of Middlesex enters a special Imparlance for Thomas Jekill Attorney for the Plaintiff and late Secondary of this Court Paschae 21. another Filizer enters the like Hil. 21. 22. another Indenture Paschae 23. Rotulo 16. Judicium in replevin cum retorn habend averia elongat Cap. in Withernam agard Hil. 25. 26. Rotulis 18. 19. defalt in case Scire facias super Vtlagar and an Indenture Trin. 26. Rotulo 19. Paschae 28. Rotulo 19. Hil. 28. 29. three several Indentures in each Term one Mich. 29. Rotulo 19. Nihil dicit in casu Hil. 29. 30. Rotulo 19. an Issue Paschae 30. Rotulo 18. 19. an Issue defalt Hil. 29. 30. Rotulo 19. an Issue In Paschae 30. Rotulo 18. 19. an Issue and defalt Hilary 30. 31. Rotulis 10. 18. 19. another Indenture nihil dicit non assumpsit Mich. 32. Rotulo 17. breve erroris sur Judicium in regno Hiberniae Judicium affirmetur intrat Rotulis 18. 19. two Indentures Paschae 33. Rotulo 19. another Indenture Trin. 33. Rotulis 18 19. several Issues and Judgments Mich. 33. Rotulis 18. 19. 20. two Indentures and a Distring awarded against a Peer Hil. 33 34. Rotulis 12. 13. 14. 15. 16. several Issues and defalts and Rotulis 17 19. two Indentures Paschae 34. Rotulo 18. an Issue Trin. 34. Rotulis 18 19. an Issue and a defalt and in Mich. 34. Rotulis 18 19. the like and in Hil. 34 35. Rotulis 12. 13. 14. 15. 16. 17. 18 19. the like as to Issues and defalts together also with two Indentures And now I do heartily beg the Reader 's pardon that I have tired his patience with so many particular proofs in this nature and truly I would not have done it but have saved my self and him much labour herein but that it lay upon me to make out this matter In which he may remember there are several Appeals of Murther Robery and Mayhm said to be entred which puts me now also in mind of appealing to him and not to him onely but unto all that shall reade this Treatise whether they think the Filizers of this Court have not had a right to enter Issues and other proceedings grounded upon Original Writs if so when where and how did they loose it was it either by Act of Parliament or by any other due course of Law and he that can tell me this erit mihi magnus Apollo And thus much if not too much I hope may suffice to prove that the Filizers have a right to enter Issues brought by Original Writ and other proceedings thereupon on their own Rolls as Filizers Some directions in the way of practice by Sixthly Original Writ in this Court AND first to proceed either to the arrest or to the Outlawry you may remember it hath been said before that this Court proceeds in its practice three several ways that is to say by Original Writ by Bill and by attachment of Privilege and in that by Writ this Court hath not used to proceed in some sort of Actions that is to say Debt Detinue Account and Covenant but in all other personal Actions it doth And as is elsewhere said The Original Writ issueth out of the High-court of Chancery to obtain which the Attorney for the Plaintiff must first consider the nature of his Clients cause of action and then draw up a precipe as it is commonly called of the whole matter in the nature of a Count or Declaration and therein he must be sure to set forth the Defendants true Christian Name and Sirname together with the Addition both of his Degree and Mystery as to his Profession and the place where conversant for if his Addition be omitted all the Proceedings are void by the Statute of Additions made in primo Henrici Quinti cap. 5. by which it is ordained and established That in every Original Writ of Actions Personals Appeals and Indictments and in which the Exigent shall be awarded in the names of the Defendants in such Writs Original Appeals and Indictments Additions shall be made of their Estate or Degree or Mystery and of the Towns or Hamlets or Places and Counties of the which they were or be or in which they be or were conversant And if by process upon the said Original Writs Appeals or Indictments in the which the said Additions be omitted any Utlagaries be pronounced that they be void frustrate and holden for none And that before the Utlagaries pronounced the said Writs and Indictments shall be abated by the exception of the Party wherein the same the said Additions be omitted Provided always that though the said Writs of Additions Personals be not according to the Records and Deeds by the surplusage of the Additions aforesaid that for that cause they be not abated And that the Clerks of the Chancery under whose names such Writs shall go forth written shall not leave out or make omission of the said Additions as is aforesaid upon pain to be punished and to make a Fine to the King by the Discretion of the Chancellour These are the very words of the Statute So that you see hereby that debile fundamentum fallit opus which ought to be the Attorny's care to prevent and he must also take care to draw up his Precipe so in substance as he will stand to it for after the Original is sealed there is no altering of it without new sealing it again and if it be in Trespass the form is thus Si A. B. fec c. tunc pon C. D. nuper London vel Middlesex de c. gen de placito quare vi armis Clm. Doum si in London Clm. si in Middl. ipsius A. apud c. fregit Et alia enormia ei intulit ad In Tusgr grave dampnum ipsius
Judgment of the Court but of the Coroners of the County against the Defendant for his contempt in not appearing upon the Exigent that he be outlawed there this Court hath a power to reverse that Judgment within themselves by a Writ of Errour which may be called a Writ of Errour coram nob residen and this appears by the Register of Writs folio 133. Title-errour in these words Rex c. Dilect fidelib suis F. P. Milit. Capital Justic nostro Sociis suis Justiciariis nostris ad placita in Cur. nostra coram nob tenend assign Salutem Quia in recordo processu ac etiam in promulgatione utlagariae in T. S. nuper de K. in Com. H. Yeoman in London nuper promulgat coram nobis ut dicitur retornat Error intervenit manifestus ad grave dampnum ipsius T. sicut ex querela sua accepimus Nos error si quis fuerit modo debito corrigi eidem T. plenam celerem Justitiam fieri volentes in hac parte vobis mandamus Quod si utlagaria praedicta coram nobis retornat existit tunc visis recordo processu utlagariae praed vocat coram vobis quos in hac parte fore videritis evocand ulterius pro adnullatione utlagariae praedictae fieri facias quod de jure secundum legem consuetud Regni nostri Angliae fuerit faciend T. c. But this Writ of Errour is not to be made by the Filizer although inserted here but as all others doth belong to the Cursitor to make the which together with the Return thereof and all the Process of Outlawry thereupon must be entred on the Filizer's Rolls of that County where the Action lies and Bail must also be given as in other cases of reversal And indeed were it that such Writ of Errour could not be brought returnable in this Court but in Parliament considering their intervals what great prejudice would arise thereby to such Defendants against whom all Writs and Process are duly returned and filed which the Attorney for the Plaintiff may doe if he think it fit though it is usual to forbear filing of the Proclamation thereby to let the Defendant come in if he will to reverse the Outlawry for want of a Proclamation by motion in Court as before is set forth and so may appear to the Action And this short account may suffice as to this matter it being but very seldom used to file all the Process whereby to put the Defendant to bring a Writ of Errour to reverse such Outlawry How to proceed to the Outlawry after Judgment IT hath been made a Question whether such Process could lie in this Court or not and the reason alledged hath been for that after a Recovery of a Judgment had and obtained although upon an Action brought by Original Writ such recovery is a Debt and no Action will lie for this it being grounded upon matter of Record but an Action of Debt in which Action this Court hath not used to proceed by Original Writ But in answer thereunto in this Case the Plaintiff doth not bring his Action but onely as it were pursues the having of his Execution to which end the Attorney for the Plaintiff is to take out from the Filizer a Capias ad satisfaciendum directed to the Sheriff of that County where the Action is laid and upon a non est inventus returned and filed the Filizer of that County will make out an Exigent post Capias and as is said before in the said Statute of the thirteenth year of his now Majesty's Reign which hath made a provision there for the proceedings in such Cases that there must be fifteen days between the Teste and Return of such Cap. So that if there were nothing else to prove it but the words of that Statute that were sufficient in it self But it may easily be farther proved that several Filizers of this Court have made out the same for several Attorneys It appears by the late Filizer of London's Books that in 9 Car. primi he made out one for one Barnard an Attorney and the like in the same year for one Woodward an Attorney and in the year 1651. the like for one Walpole an Attorney and in the year 1662. the like for one Marshall an Attorney all Attornies of this Court and the now Filizer of Yorkshire hath done the like and also the now Filizer of London hath done the like and that not onely upon Judgments recovered upon Actions brought by Original Writ but also upon Judgments affirmed upon Writs of Errour brought upon Judgments given in inferiour Courts in Actions of the Case and the like Actions that are usually brought in this Court by Original Writ And this Proceeding being very rare and seldom that it runs to so far a Line a few Precedents in this nature must serve the turn and may be sufficient to prove that it is at the Election of the Plaintiff if he pleaseth to proceed as well to the Outlawry after Judgment whereby the Defendant is again warned as it were to come in and pay the Plaintiff his damages recovered as to bring any action of Debt upon the said Judgment Somewhat concerning Imparlances upon Suits brought by Original Writ IT is to be presumed the course of this Court in this particular is not altered since the year of our Lord 1654. wherein in Michaelmas Term in that year this Court made several Orders and Rules and published them in Print under the hands of the then Judges to wit Henry Rolls Richard Aske and Richard Newdigate and among them these following For asmuch as some inconveniences do some times happen to the Plaintiffs by entring their Declarations in special Actions It is therefore ordered that the Plaintiff in such special actions shall have liberty to enter Imparlances the next Term following entring the same of the first Term with an Incipitur as it hath been usual and that all other Imparlances be duely entred before any Issues Demurrers or Judgments thereupon be entred That if a Defendant appear the first Term and give no rules to declare the Defendants Attorney may the second Term be compelled to accept a Declaration with an Imparlance and the Declaration may be entred as of that Term with an Imparlance over to the next Term or in the first Term with an Incipitur as before as the case shall require That if the Plaintiff declare not the second Term though the Defendant give no Rules yet a Non-suit may be entred at the end of the second Term upon a continuance over by him by dies datus but not the third Term or after Upon a mere real action an Imparlance to be of course That in Ejectment or any personal Action if the appearance be the first return of Hilary or Trinity-Term no Imparlance without consent or special rule In causes other than London or Middlesex if the appearance be before Crastin Martini or Mensem Paschae no
Imparlance without consent or special rule but if upon or after those returns an Imparlance of course In London or Middlesex if the appearance be before Chrastin Ascensionis Domini or before the last return of any other Term no Imparlance without consent or special rule but the Defendant to plead as of that Term within 14 days after the end of the Term upon rule given to answer but if of Crastin Ascensionis or the last return then an Imparlance of course If a Writ be returnable Quinque Paschae or the last return of any Term the Defendant giving rules and calling for a Declaration if it be not delivered four days before the Essoin-day of the ensuing Term or more a Non-suit to be entred And likewise in the Court of Common-Pleas by their Orders made and printed in the year of our Lord 1672. If the Defendant appears upon an Arrest upon a Clausum fregit which is a general Writ and may be said to be the Common-Pleas Latitat he must have an Imparlance of course but if the Writ whereupon he was arrested be special according to the truth of the action and returnable the first or second return in any Term so as a venire facias may issue forth there the Defendant ought to answer the first Term in all personal and mixt actions but in real actions the Defendant shall have one Imparlance of course So that it appears by this order of the Common-Pleas that the true reason of the Defendant's having an Imparlance is grounded upon his not knowing by such a general Writ what he is arrested for But here it may be objected that there will not at any time need such an Imparlance in this Court because as is said before it hath been always the constant course of this Court to set forth the true cause of action in the Capias or such like Writs that so the Defendants may know what they are to appear to In answer of which not denying but agreeing wholly with what is objected it was the opinion of a very learned Judge of this Court lately deceased and who was also formerly a Judge in the Common-Pleas and so did very well understand the practice of both Courts when an Attorney for a Defendant by Summons appeared before him did order that Attorney to take a Declaration in an action of the case by Original Writ although his Client had been sued to the Exigent but in trespass onely and his reason was that the onely end that the Plaintiff had to sue the Defendant to the Exigent was but in order to make him appear to his suit and now that he had appeared it was but reason he should take a Declaration in any other personal action by Original that this Court could hold Plea of And for the Entring of these Imparlances as it is in the Common-Pleas so it is in this Court there are Imparlance Rolls on which the Declaration and Imparlance are entred and Issue rolls on which the said Declaration and Issue are entred and if the Imparlance roll be right and the Issue roll be wrong the Imparlance roll is the Warrant to amend the Issue roll by but if both happen to be wrong then they are to be amended by the Original Writ it self which is the ground of all the subsequent proceedings How to plead an Outlawry either in abatement or bar of any Action THe first thing you are to doe is to come to the Filizer where the action is laid and search with him in his Exigent Book to see if such person as you look after be Outlawed if so then to bespeak of him a general Capias Vtlagat then seal it and affix it to your Plea for if it be pleaded in disability of the person it must be pleaded as my Lord Coke saith * First Institutes fol. 128. b. forthwith sub pede Sigilli unless the Record be in the same Court But if it be pleaded in Bar and it be denyed there must be a day given to bring it in and if a man be Outlawed at the suit of any one man all men shall take advantage of this personal disability If a Defendant plead an Outlawry in the Plaintiff in disability of his person and the Plaintiff after that purchase a Charter of Pardon the Defendant shall answer because the Charter hath restored the Plaintiff to the Law So note the disability abateth not the Writ but disinableth the Plaintiff untill he obtaineth a Charter of Pardon or reverseth the Outlawry some other way If the ground or cause of the action be forfeited by the Outlawry as my Lord Coke saith in the place before mentioned then may the Outlawry be pleaded in Bar of the action as in an action of Debt detinue c. but these as is said before this Court hath not used to hold plea of by original Writ and why it hath not I know no reason but the custome of the Court for the Statute of the 25. of Edward the 3. Cap. 17. The title of which Statute is thus Process of Exigent shall be awarded in Debt Detinue and Replevin saith in general speaking of no particular Court of Common-Law in these words Item it is accorded that such process shall be made in a Writ of Debt and Detinue of Chattels and taking of Beasts by Writ of Capias and by process of Exigend by the Sheriffs return as is used in a Writ of accompt Which as by the Statute of the 52. of Henry the 3. Cap. 23. appears was against Bayliffs of Lords by attachment of their Bodies so here after the Exigent returned it is by Capias Vtlagat But in real actions or in personal where Damages be incertain as in Trespass of Battery of Goods of breaking his Close and the like and are not forfeited by the Outlawry there the Outlawry must be pleaded in disability of the person And in the aforementioned Orders and Rules of this Court among others it is ordered in this case that in the pleading of an Outlawry the mean process be not repeated but the Exigent and Outlawry joyned to the commencing of the suit The Court then being very tender and carefull of putting the Subject to any unnecessary charge made the Pleading to be as short as possibly it could And thus much may suffice as to this manner of Pleading Where Suits by Original Writ ought to be laid and when the Visne may be altered AS to this matter it lieth wholly in the breast of the Court upon motion in what cases to permit the changing or alteration of the Visne but generally the same is never granted but upon some Affidavit and by the former Orders and Rules of this Court before recited It is ordered that actions upon the Case Trespass for Goods Assault or Imprisonment arising in any English County be laid in their proper Counties unless they arise where the Justices of Nisi prius seldom come and because Trespass and Trover for Goods Battery Imprisonment and Slander
well known by most Practisers in this Court and shall onely say somewhat of removing Plaints out of such Inferiour Courts as County Courts or Sheriffs Courts and Court Barons or Manour Courts but more especially of County Courts and in them touching Plaints in Replevin there entred and sued without Writ out of the Chancery as it is said in Fitz. Nat. brevium fol. 170. if the Plaintiff or Defendant will remove such Plaints he ought to sue a Writ of Recordare out of the Chancery directed unto the Sheriff of that County in whose Court the Plaint is entred vide the Writ it self there at large which I here for brevity omit whereby it appeareth that the Plaintiff may remove such Plaint by such Writ of Recordare without any cause shewn in the Writ but the Defendant cannot without shewing cause for it in the Writ And the like he must doe in a Writ of Pone which removes such Plaints if such Replevin be sued by Writ out of the Chancery and both these Writs may be returnable in this Court and in the Natura brevium aforesaid you may find several Causes that may be inserted on the behalf of the Defendant and when such Cause or Plaint in Replevin is removed either by the Plaintiff or Defendant for in Replevin they are as it were both Plaintiffs in this Court the Defendant must enter his appearance with the Filizer of that County out of which the Plaint is removed and give a rule with him for the Plaintiff to declare and if the Plaintiff doth not declare by the time limitted in that rule against the Defendant or if he do declare and the Defendant avoweth or maketh Cognizance and upon the Issue tried or by defalt in the Plaintiff the Judgment be for the Defendant or Avowant then the Attorney for such Defendant may have in such case from the said Filizer a Writ of Return habend and Writ of Enquiry for damages and upon the Sheriffs return of this Writ quod averia elongat then the said Filizer will make a Capias in Withernam to take other Cattle of the Plaintiff's and if the Sheriff upon that doth return that the Plaintiff hath no Cattle that he can take in Withernam then the Filizer will make you a Capias against the Plaintiff's Body and so proceed to Outlawry And if the Plaintiff do declare that the Defendant yet hath and doth detein the Cattle c. and the Defendant appears and afterwards makes defalt the Plaintiff shall have Judgment to recover all in damages as well the value of the Cattle as his damages for taking of them and his Costs and to that end the Attorney for the Plaintiff may have a Writ of Enquiry of damages from the said Filizer the same proceedings in case it be in a Replevin for any dead Chattells c. And if a Replevin be sued by Plaint in the Court of any other Lord than in the County Court before the Sheriff as in the Court Barons or Manour Courts there it shall be also removed by a Writ of Accedas ad Cur. and the proceedings therein the same as before is said And if the Sheriff in any case return a tarde there may be an alias and pluries had and if a Replevin be within any Liberty or Franchâ—se and the Sheriff return upon the Writ of Replevin if it be by Writ that he hath commanded the Bayliff of the Franchise who hath given him no answer or that the Bayliff will make no deliverance then the Plaintiff may have a Non omittas to the Sheriff commanding him to enter into the said Liberty or Franchise and make the return and if the Sheriff doe it not then the Plaintiff may have an alias and plur non omittas and so a plur ad infinitum c. But if the Sheriff do not return the plur replevin abovementioned then the Plaintiff may have an Attachment against the Sheriff directed to the Coroners of the said County Vide the Statute de Ann. 17 Car. Secundi nunc Regis c. Cap. 7. made for a more speedy and effectual proceeding upon Distresses and Avowries for Rents in which you will find some former proceedings in Replevin much altered by that Statute Some Reasons impartially offered to shew how it hath come to pass that the Practice in this Court by Original Writ hath decreased and that by Bill increased and what hath occasioned some Entries of Issues and other proceedings to be made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls THE first and greatest cause or reason as is imagined of the increase of the one and the decrease of the other hath been and now is from the setled residence of the Kings of England at their Palace of Westminster in the County of Middlesex for in that County where they have resided it hath always heretofore been used in such Actions as were not proceeded in by Original Writ to take out a Bill or Precept rather and more properly directed to the Sheriff of that County to take the Defendant to bring him before the King at a certain day after a certain Return in the Term and then that Office of the Bills of Middlesex was an Office of great profit although but small Fees belonging to it by reason of the great number of them that were then taken out and upon a non est inventus returned there went out a Testatum which hath since that time gained the name of a Latitat into any other Foreign English County and this was grounded upon a Plaint brought before the King himself at Westminster and that it was so heretofore may appear by several Files of them now remaining in the former upper Treasury belonging to this Court a Copy of such Plaint and Precept I shall here set down as followeth viz. Philippus Byrd queritur de Johanne Middles ss Bateman de eo quod ipse decimo die Junii Annis Regnorum Domini Philippi Dominae Mariae Regis Reginae nunc primo The Plaint secundo vi armis videlicet gladiis c. Clausum ipsius Philippi apud Hendon in Com. predict fregit intravit Et alia enormia ei intulit ad dampnum ipsius Philippi Centum Solidorum contra pacem dicti Domini Regis dictae Dominae Reginae nunc c. Pleg de pros Johannes Doo Richardus Roo On the back of which Bill or Plaint it is thus written Ca ' r. Jovis post 18. sancti Martini Precept est Vic. quod attach Johannem Middles ss The Precept Bateman Ita quod sit coram Domino Rege Domina Regina apud Westm die Jovis prox post 18. sancti Martini ad respondend Philippo Byrd de placito transgr Et habeas ibi tunc hoc precept per. Bill Coverd On the back of which Precept it is thus returned Def. infra nominat nichil habet in balliva nostra per quod possit attach Respons Thomae Leigh Johannis
to desire the prosperity of it which I do not in the least doubt of but it will enjoy under the wise and prudent management of the practice thereof in both cases by Writ and by Bill by the now most Reverend and Learned Judges sitting therein unto whose great and profound Wisedom I do most humbly submit whatsoever I have said in this small Treatise having designed nothing herein but for a common good although I doubt I have displeased some by so doing being importuned thereunto by divers Practisers of this Court Some Precedents of frequent use both of Writs and the Entries thereupon and also Declarations Imparlances Issues Judgments and Defalts and other proceedings in actions brought by Original Writ and entred by the Filizers ANd First To begin with such Writs in which you proceed to the Outlawry wherein your Capias alias plur may be made short not reciting the cause of action at large Carolus c. Vic. L. Salutem Praecipimus Le Capias vobis quod capiat A. B. nuper de c. in Com. c. gen si invent fuerit in balliva vestra eum salvo custod Ita quod habeat ' Corpus ejus coram nobis à Die c. Vbicunque tunc fuerimus in Anglia ad respondend C. D. de placito Transgr super Casum Et habeat ' ibi hoc breve T. c. E. F. Att. Vic. L. Salutem Praecipimus vobis Le Alias sicut alias vobis praeceperimus quod capiat c. ut antea usque finem brevis del Cap. Vic. L. Salutem Praecipimus vobis sicut Le Plur. plur vobis praeceperimus quod capiat c. ut antea usque Finem brevis delalias Cap. Vic. L. Salutem Praecipimus vobis Le Exigent quod Exigi faciat A. B. nuper de c. in Com. c. gen de Hust in Hust quousque secundum legem consuetud hujus regni nostri Angliae utlagetur si non comparuerit comparuerit tunc eum capiat salvo custod faciat Ita quod habeat ' Corpus ejus coram nobis à die c. ubicunque tunc fuerimus in Anglia ad respondend C. D. de placito quare cum c. Ut in le original usque ad Dampnum ipsius C. D Centum Librar ut dicit Et unde vosipsi nobis mand à die c. Le retorn del plur ult preterit quod predict A. B. non est inventus in balliva vestra Et habeat ' ibi hoc breve T. c. Vic. M. Salutem Cum vic nostris L. Le Foreign Proclamatio per breve nostrum nuper praecepimus quod exigi facerent A. B. nuper de c. in Com. c. Gen. de Hust in Hust quousque secundum legem consuetud hujus regni nostri Angliae utlagaret ' si non comparuisset Et si comparuisset tunc eum caperent salvo custod facerent Ita quod haberent Corpus ejus coram nobis à die c. idem retorn cum le exigent ubicunque tunc fuissemus in Anglia ad respond C. D. de placito quare cum c. ut in le exigent usque ad dampnum ipsius C. D. Centum librar ut dicit Ideo Tibi praecipimus quod per Statut. Anno regni Domini Elizabethae nuper Reginae Angliae Tricesimo primo inde provis ' proclamari fac prefat A. B. tribus seperalibus diebus secundum formam Statuti illius unde una Proclamation ' predictar fiat ad vel prope maximum usual Ostium Ecclesiae parochial ubi est inhabitans quod se reddat prefat vic nostris London Ita quod habeant Corpus ejus coram nobis ad prefat Terminum ad respondend prefat C. D. de predicto placito Et habeas c. Teste cum le Exigent If the Proclamation be not Foreign but into London as the Exigent was then say Eum vobis c. as in the Supersedeas following and Ideo vobis praecipimus quod per Statut ' c. usque quod se reddat vobis Ita quod habeat ' Corpus c. Et habeat ' c. Vic. L. Salutem Praecipimus vobis Le Allocatus quod allocat ill quatuor * Si in Com. Quatuor Com. Hust ad quos A. B. nuper de c. in Com. c. gen exact fuit non comparuit prout †Tu ipse vosipsi nobis à die c. le retorn del Exigent ult preterit mand ipsum A. B. ad prox Hust vestrum London ulterius exigi fac quousque secundum legem consuetud hujus regni nostri Angliae utlagetur si non comparuerit c. ut in le Exigent usque ut dicit Et habeat ' c. Teste le retorn del Exigent si soit in Terme Si non le quarto de post Vic. L. Salutem Cum vobis per breve Le Supersed quia improvide nostrum nuper praeceperimus quod exigi faceretis A. B. nuper de c. in Com. c. gen de Hust in Hust c. ut in le breife de Exigent usque ut dicit Quia tamen ante emanationem pred brevis nostri de exigend proed A. B. per E. F. Attorn suum comparuit in eadem Cur. nostra coram nobis quam plur se obtulit ad respondend ' praefat C. D. de praedicto placito Sic que breve nostrum praed inde versus eundem A. B. minus rite emanavit Ideo vobis praecipimus quod de ulterius exigend ' praed A. B. utlagand capiend ' seu ipsum in aliquo modo molestand occasione illa omnino supersedeat T. c. Sur le Teste jour del Exigent ou ascun temps devant le retorn de ceo Vic. M. Salutem Praecipimus tibi Le general Cap. utlagat quod non omittas propter aliquam libertat Com. tui quin capias A. B. nuper de c. utlagat in London die Lunae le quinto exact Anno regni nostri c. vel ult praeterit ad sect C. D. de placito c. si invent fuerit in balliva tua eum salvo custod Ita quod habeas Corpus ejus coram nobis à die c. ubicunque tunc fuerimus in Anglia ad fac rec quod Cur. nostra coram nobis consideravit in hac parte Et habeas c. Si in London propter aliquam Libertat Com. Civitat vestrae quin c. Vic. M. Salutem ut antea usque Com. Le special Cap. utlagat tui quin per Sacr ' probor legalium hominum de eodum Com. tuo diligent inquir quae bona catalla terras tenementa A. B. nuper de c. in Com. tuo gen habet seu habuit c. Ut in le gen Capias utlagat usque de placito c. prout Vic. nostri London nobis apud Westm
01 To the Book bearer 00 04 To the Secondary 00 01 To the Clerk for entring the appearance 00 04 Item For every copy of any information or any pleas the parties pay for every Sheet 00 08 Whereof to the Clerk for every Sheet writing 00 02 Item For copies of Indictments of Trespass Riot Force or the like if it be but short 02 00 If it be of any length above two Sheets 03 04 Item For every copy of Indictment in Felony 06 08 Item For the Inrolment of every Writ of excommunicat ' capiend 02 04 To the Master 02 00 To the Secondary 00 04 To the Attorney also in the cause 03 04 Item For every Capias sued out upon the Writs of excom ' capiend 02 06 All which is paid to the Master of the Office and the Clerk hath the Attorney's Fee in regard the Writ is very long 03 04 Also the Attorney that appeareth or doth any act in Court for any Defendant hath as in all cases at the common Law for his Fee 03 04 And in Quo Warranto traverse of Lands Writs of errour in Felony being extraordinary cases and but rare 06 08 Item For drawing of all Pleas Replications and Rejoinders c. upon Quo Warranto for every Sheet 01 00 And for drawing all other Pleas Replications c. for every Sheet 00 08 Item For every Writ of Peace or good behaviour 04 07 To the Master of the Office 01 08 To the writer of the Writ and Warrant 00 08 To the Attorney towards the cause 01 08 To the Secondary 00 01 To the Under-clerks 00 06 Item For the Supersedeas for the peace or the good behaviour 06 00 To the Master for the Recognisance 01 08 To the Secondary 00 04 To the Master for the Writ of Supersedeas 01 08 To the writer of the Writ and Recognisance 00 07 To the Secondary for signing the Writ 00 01 To the Attorney towards the cause 01 08 For every attachment in contempt against any person 04 00 To the Master of the Office 01 08 To the Clerk 01 08 To the Maker of the Writ and Warrant 00 07 To the Secondary 00 01 Item For every Bail taken for appearance 04 00 To the Master of the Office 01 08 To the Secondary 00 04 To the writer for making it 00 04 To the Attorney towards the cause 01 08 Item For the discharge of every person upon any Bail of the Peace Good behaviour Contempt or any other Bail 04 00 To the Master of the Office 01 08 To the Secondary 00 04 To the writer for making the Warrant for discharge 00 04 To the Attorney towards the cause 01 08 Item For every Certiorari for removing Indictments Informations Presentments or any other Record 04 00 To the Master of the Office 01 08 To the Secondary 00 01 To the writer of the Warrant and Writ 00 07 To the Attorney towards the cause 01 08 Item For every Certiorari in Felony the same Fees onely the Attorney hath over and above the former his Fee of 03 04 Item For every Supersedeas of the Peace coming out of the Chancery and allowed in the Court 04 01 Whereof to the Master 02 00 To the Secondary 00 05 To the Attorney towards the cause 01 08 Item For the Bail of every person that is brought in upon any Habeas Corpus 05 02 Whereof to the Master all except the Secondary 00 04 To the Marshal and Crier 00 08 To the Clerk for making the Bail 4 d. Item For every Capias utlagat ' special sued out against any person 04 00 To the Master of the Office 01 08 To the maker 00 03 And the Secondary for signing 00 01 To the writer of the Writ and Warrant 00 07 To the Secondary for signing it 00 01 To the Attorney towards the cause 01 08 These for the most part are made without Fee  Item For every Writ to remove Prisoners out of any County to receive trial in another 04 00 Divided as Certiorari and Habeas Corpus are but most of these are made without Fee pro Rege  Item For every Writ of Procedend upon a Certiorari and Habeas Corpus 04 00 Item For every Writ of Duces tecum upon the Retorn of the Sheriff that the party is languidus 04 00 Divided as the Habeas Corpus  Item For every Writ De gestu fama 04 00 Divided as the Certiorari  Item For every Supersedeas granted upon an Indictment or other matter in case where any person is in exigent to the keeper of the Calendar if the party make Fine for every name 6 d. Or otherwise to the Secondary 00 06 Item For every Supersedeas granted upon any Indictment if the party do not make Fine then the Secondary 00 06 Item For every Supersedeas for any person upon any Indictment of Felony where the party is in exigent 01 08 To the maker of the Writ 00 03 To the Secondary 00 01 Item For every Writ of restitution to restore a Man to his Lands Goods or Chattels upon any cause 06 08 Whereof for ingrossing of the Writ 00 06 Item For entring the same upon the Roll 01 00 Item For every Writ of Supersedeas upon a former restitution wherein the Lands are to be reseized again upon the insufficiency of the Indictment the Master of the Office hath 13 04 Of which the Ingrosser of the Writ hath 01 00 Item For every Writ of seizure of Liberties 13 04 Whereof to the Clerk for making the same 01 00 Item For every Writ of Mittimus of a Record transcribed into the Court of Wards or Exchequer 06 08 Whereof to the writer of the Writ 00 06 And for the Transcript according to the length of the Record by the Roll  Item For every Writ of Execution namely Capias ad satisfac ' Fi. fa ' or Elegit 06 08 Whereof to the writer of the Writ 00 06 Item For every Writ of Non molestand granted upon Pardon pleaded or Outlawry reversed 06 08 Whereof to the writer of the Writ 00 06 Item For every Scire Facias sued out by any person for breach of the peace or behaviour 06 08 To the Writer thereof 00 06 Also to the Clerk for drawing the Surmise or breach to the length thereof  Item For every Scire facias in Felony Diminuc ' immediat ' c. 06 08 Whereof to the Writer 00 06 Item For every Subpoena ad testific ' attachment upon Information or other ordinary Writ 04 00 Divided as the Habeas Corpus  Item For a Ve. fa. de novo upon a traverse out of the Chancery which is very rare 06 08 Whereof to the writer 00 06 Item For entring of every Rule given in Court 00 04 And no more for the Copy unless it be of extraordinary length which is very rare  For examination upon Attachments of Contempt we do not know what hath been anciently taken by reason of the fewness
03 00 Whereof is paid to the Prothonotaries 01 08 For making every Bail 00 04 For making every Bill of Middlesex every Distringas nuper Vic' and Habeas corpus super Ce ' corpus per prec ' thereupon 00 08 For making every Habeas corpus ad fac ' and Habeas corpus cum pri ' certior ' procedend elegit and habere fac ' possession ' besides the 4d allowed by the Prothonotaries 01 08 For every Sheet of every Declaration or other Pleading recited in a Writ of Damages 00 04 For every Sheet of any Suggestion Declaration or other pleading recited in a Writ of Prohibition or Consultation or any other Writ 00 04 For the entry of every Scire facias 01 00 Every Clerk of the Office and their Clerks have allowed them at the end of every Term from the Seal one Writ sealed not paying any thing called Jeavous Prie. Every Clerk of the Office upon his accompt to the Master of the Office at the end of the Term for every Pound he payeth is allowed 1 s. which is termed pro regardis Paid to the Keeper of the Seal for Bills of Middlesex at our first knowledge For the sealing of every Bill of Middlesex The Keeper of the Bill of Middlesex Seal from the Essoin day untill the continuance day 00 06 From the continuance day untill the next essoin day 00 10 For sealing every Alias and Plur ' Bill every Habeas corpus super Ce ' corp ' and every Distringas thereupon per prec ' 00 01 But now about ten years last past he taketh from the very day the Term ended unto the very day the Term beginneth 00 10 And for every Alias and Plur ' Bill Habeas Corpus and Distringas 00 02 The Seal of the Attachment 00 01 The Seal of the Cap ' 00 01 The Post diem of the Attachment 4 d. The Post Terminum of the Attachment 00 08 For the Seal of a Distringas versus Freeholders 00 01 Fees received by the Secondary For taking the acknowledgment of a Secondary Deed in Court 01 00 For signing costs upon every Judgment by confession Nihil dic ' Verdict and Demurrer 01 00 Also for acknowledgment of every Deed for every Judgment pronounced in open Court every Rule to alter a Visne for every Rule for an Attachment Prohibition Consultation c. he receiveth for the Poors Box 01 00 For allowance of a Writ of Errour coram nobis residen ' 02 00 Whereof to the Box 01 00 For the Allowance of the Writ of Audita querela 02 00 Whereof to the Box 01 00 For the common Bail 01 02 For a special Bail upon Habeas Corpus or a Certiorari upon Attachment 04 10 Fees received by the Secondary for the Judges For every Habeas Corpus ad fac ' rec ' Judges 04 00 For every Procedend 04 00 For a Certiorari to remove a foreign Attachment 04 00 For a Procedend thereupon 04 00 For every Habeas Corpus cum Privilegio 03 00 And out of the said Fee of the Lat ' is accounted and paid to him for them 00 08 Fees received by the Judges Clerks Every Judge's Clerk taketh for every Judges Clerks Warrant for an Habeas Corpus and every other thing whereunto the Judge putteth his name in the Term time 01 00 And in the Vacation 02 00 Also he taketh for the acknowledgment of a Deed before a Judge which he saith is for his Master 06 08 And for taking of the Depositions of Witnesses upon a suggestion for a Prohibition for every Witness 06 08 He taketh more for his own Fee for the acknowledgment of a Deed 02 00 He taketh also for his own Fee for every Witness to prove a Suggestion 02 00 Counsellour's Fees Are not certain to our knowledge but Counsellours they usually take for their Fee for every cause ordinarily 10 00 If they receive more it is of their Clients free gift and not exacted to our knowledge Sergeants at Law do likewise practise Sergeants in this Court and they take some 10 s. for a Fee some 20 s. or more as their Clients will give them and according to the pains they take but the certainty of their Fee we know not The Fees paid to the Clerk of the Papers now who hath been during all our memories one of the Prothonotaries Clerks and appointed by him and is now exercised by John Hill and John Woodward For the copying of special Pleas for every Clerks of the Papers Sheet 00 04 For making a paper Book either Issue or Demurrer for every Sheet 00 08 Other sums of Money taken by the said Clerk of the Papers For entring in his Book every Record to be read 01 00 For entring in his Book every cause to hear counsell at every time 01 00 For entring every Trial at Bar 01 00 Which have been taken by the now Clerks of the Papers about six years and about fourteen years before by the former Clerks Fees paid all our memories to the Clerk of the Rules being one of the Prothotaries Clerks and is now exercised by Nicholas Pluncket For entring every Rule except general Clerk of the Rules Rules for answer 00 04 For a copy of every Rule 00 04 For every general Rule for answer being in number above three 00 02 Other Sums of money taken by the said Clerk of the Rules which he now disclaimeth For every Rule given in Court with a copy for a Prohibition or Consultation he taketh 1 s. whereas the due is but 8 d. which hath been taken not above five and twenty years 00 08 For every Rule with a copy given in Court the last day of the Term he taketh 1 s. whereas the due is but 8 d. which hath been taken two or three years 00 08 For every copy of every Rule after the continuance day he taketh 8 d. whereas the due is but 4 d. which hath been taken two or three years 4 d. Also such Affidavits as are read in Court he claimeth these two years or thereabouts to have the keeping of them and taketh for copies both of the Plaintiff and Defendant at his own discretion which formerly hath not been The Keeper of the Postea's which is also one of the Prothonotaries Clerks He hath for the receiving making and delivery of every Postea 00 04 The Keeper of the Files of Declarations In times past the Keeper of the Files of The Keeper of the Declarations Declarations for every search did use to take for his pains in the keeping and filing of Declarations for every search after the second Term 4 d. but now by a general consent for the receiving filing pying and shewing the Files to the Filizers and Clerks he is allowed for every Term of every Filizer and Clerk of the Office 2 s. and this hath continued thirty years or thereabouts 02 00 Laurence Coldham one of the Secondaries Secondaries Clerks Clerks for
indivisibile non est admittendum in parte verum in parte falsum as my Lord Coke hath it in his 4. Inst c. 64. But as is said before the original Presentment cannot be found whether it be burnt or mislaid or kept secret or what is become of it is hard to determine although it hath with great care and pains been sought after and if it shall not in some short time be brought to light it may be an inducive cause hereafter I hope to our most gracious Sovereign Lord the King that now is to grant another like commission when he in his abundant Princely wisedom and goodness shall think fit that so there may be a standing Rule for the future by which the Fees of this Court may be taken and thereby all extortion avoided But that all the Fees that do belong and have been usually paid to the Filizers of this Court in their several capacities are not mentioned in the said Presentment is very plain and obvious in that these following are casually omitted that is to say there is no Fee inserted for the entring of the appearance either general or special nor for the Writ of Allocat ' nor for the Scire fac ' nor for the length of any Writs or Process nor for the entring of any such Writs or Process nor for the transcribing of the special Outlaries with Inquisitions returned into the Exchequer which as Clerks of the Outlaries they ought to do as well as the Clerk of the Outlaries in the Common-Pleas nor in case there be more than four Names in a Writ except Men and their Wives then to pay double Fees as now is paid if it be so for Latitats nor for any Distring ' against a Peer against a Corporation or against a Hundred nor for any Testat ' Distring ' or Testat ' Pone nor for any Writ of Homine replegiando or Capias in Withernam thereupon or Testat ' Capias in Withernam and divers other things as Inrolling of Indentures and the continuance of Process and the like but Bernardus non vidit omnia And it is certain the Filizers have made and do make all and singular the Writs and Entries above mentioned as is before proved and therefore certainly some Fees are due to them for so doing but what the due Fees are herein I cannot set down because I know them not in particular but shall leave them to the Judgment of the Judges of this honourable Court to determine what the Filizers ought to have in such cases onely the Reader may observe if he pleases to look back into the aforesaid Presentment and there among the Filizer's Fees he will find that for entring of Issues if they were above three Sheets they are allowed there 8 d. per Sheet And likewise the said Presentment mentions a Fee for every Writ of Withernam second Deliverance and Retorn ' habend before Avowry which seems to imply as if the Filizers had nothing to doe with it after Avowry if so how comes it to pass that since the said Presentment was made they have entred Replevins Avowries and Pleas in Bar thereunto and Judgments thereupon on their Filizer's Rolls as may appear among the many Entries of Issues by Original Writ before recited for the very next Term after it was made to wit in Trin. 6 Car. 1. one Gosnold Filizer of Suffolk entred a Scire fac ' in replevin and in Hill 7 ejusdem Nil dic ' in replevin entred by the Filizer of Somersetshire in Hil. 12. one Eveleigh Filizer of Devon entred two Issues in replevin and in Pasch 14. ejusdem Rot. 7. one Wright Filizer of Sussex entred a Replevin with an Avowry and Plea in Bar and Judgment for the Avowant and a Writ of Enquiry for Damages awarded in Mich. 14. the like by Payn Filizer of Sussex in Hil. following the like by the said Payn Trin. 15. an Issue in Replevin by the said Payn in Hil. 17. Rot. 22. one Blincoe Filizer of Somersetshire entred a Replevin with an Avowry and Plea in Bar in Hil. 1652. Rot. 16. one Woodeson Filizer of Yorkshire entred a Judgment in replevin with a Retorn ' habend and a Cap. in Withernam awarded in Hil. 1655. Rot. 12. one F. Gregg Filizer of Derbyshire entred a special Plea in replevin and Non pros superinde and Retorn ' habend in Trin. 1657. Rot. 14. the aforesaid Payn entred three several Declarations in replevin and for want of Avowries several Writs of Pone are awarded in Pas 23 Car. Regis nunc Rot. 16. one Bathurst Filizer of Kent entred a Judgment in replevin a Retorn ' habend Averia elongat ' and a Cap. in Withernam awarded and many more might be here inserted but these may suffice And whereas the said Presentment prima facie may seem likewise to contradict it self which well considered upon a review of the whole matter it doth not in that there is set down some Writs of the same nature and by the same names to belong both as well to the chief Clerk or Prothonotary as also to the Filizers and among others I shall observe these as namely the Supersedeas Habeas Corpus Process in appeal Subpoena Resummons and the like now to reconcile this seeming contradiction the Reader is to take notice that these last mentioned Writs and such like other Writs also may and do belong to the chief Clerk or Prothonotary when the Action is commenced by Bill without Writ as it is elsewhere observed that upon a Scire fac ' to revive a Judgment by Bill it is always said per Billam sine Brevi nostro ac per Judicium ejusdem Cur ' recuperasset c. So when it is commenced by Writ that is to say original Writ out of Chancery then may and do the said last mentioned Writs and other such like Writs also belong unto the Filizers to instance in one particular and more plainly as to this matter in that of Appeal my Lord Coke saith in his 3 Inst Cap. 105. fol. 237. of Pardons that in an Appeal of Death Robbery Rape c. the King cannot pardon the Defendant and his reason there given is for that the Appeal is the Suit of the party to have revenge by death and whether the Defendant be attainted by Judgment c. or by Outlawry the pardon of the King shall not discharge the Defendant and the reason certainly is very strong and prevalent Now the Appellors may sue such Defendants or Appellees rather by way of Appeal either by Writ or by Bill as the said Lord Coke saith in his said Inst Cap. 50. fol. 114. of Clergy speaking of the Statute that gives it that that act extendeth not to Appeals by Writ or Bill nor to Appeals of the Approvers and the late Reverend and Learned Judge Hale in his Book of Pleas of the Crown fol. 179. Title Appeals saith that they are of two sorts by Writ and by Bill touching Appeals by Bill saith he