THE Course and Practice OF THE COURT OF COMMON-PLEAS At Westminster Heretofore Written by THOMAS CORY Esq Late Chief Prothonotary thereof AND Now continued and fitted to the Practice used at this day with Additions by W. B. a Clerk of the same Court LONDON Printed by Iohn Streater Henry Twyford and E. Flesher Assigns of Richard Atkins and Edward Atkins Esq M.DC.LXXII Cum Gratia Privilegio Regiae Majestatis A TABLE OF THE Principal Matters Concerning Prisoners Fol. 1 Of Bayl Fol. 4 Concerning the writ of Clausum fregit and special writ containing the declaration at large and of fileing New Originals Fol. 8 Of Imparlances Fol. 9 Of Signing and entring Judgments Fol. 12 Of Appearances upon Exigents Habeas Corpus pluries capias distringas c. Fol. 14 Of Attachments upon Contempt Fol. 15 Of amending Entreys c. Fol. 17 Of reading Demurrers special Verdicts c. in Court â—â—d the Course used therein by the Prothonotaries Fol. 20 Of the chief Prothonotary Fol. 21 Of the Test's and returns of writs in all Actions real and personal and those brought by Attachment of Priviledge c. Fol. 23 The antient Course of giving warrants to confess Judgments Fol. 24 Of Renewing Judgments by Scire Facias Fol. 26 Of persons taken in Execution in forrain Counties Fol. 27 Concerning the Priviledge of the Clerk of the Court Fol. 28 Of carrying down causes to be tryed by proviso Fol. 29 Of giving notice upon writs of Inquiry and Nisi prius Fol. 30 Of declaring upon Reversal of Utlaries Bayl to writs of Habeas corpus Fol. 32 Of appearing in Quare Impedit and wast upon the distresse of are sting Judgment Fol. 33 Of matters concerning the Prothonotaries and of the Clerks and Attorneys of the Court and their Clyents Fol. 34 Of Tryals at Barre Fol. 35 Of declaring in causes removed as well out of Inferior Courts as otherwise Fol. 36 Of an Habeas corpus Fol. 41 Of declaring upon Mesne processe Fol. 42 Of Nonsuits Fol. 45 THE Course and Practice of the COVRT of COMMON PLEAS Concerning Prisoners IF a Prisoners Body with his Causes be removed by Habeas Corpus or Writ of Priviledge if the Prisoner be there in person he must undertake in double the sum and his Bayl in the single sum But if the Prisoner be not there in person then the Bayl must be in the double sum If such a Prisoner when he comes in Court or before the Judge hath no Bayl he is either to be committed to the Fleet or remanded but he cannot be committed to the Fleet unless there be some process of the Common Pleas returned or unless he be brought to the Bar and the Record of a Judgment or Utlary be brought in Court to charge the Prisoner with in Court but now the Common Practice is upon removal of a Prisoner by Habeas Corpus to feign a Writ of Capias or Attachment of priviledge to turn the Prisoner over to the Fleet. If a Prisoner be committed to the Fleet pro defectu Manucaptorum and lyes three Terms there and the Plaintiff doth not in that time Declare against him then upon a common Appearance the Prisoner is to be discharged out of Prison but if the Plaintiff offers to declare and the Prisoner will not appear then the Prisoner must remain still in Prison and the Plaintiff may sue him to the Utlary notwithstanding he is in Prison Of Bayl. IF the Bayl bring in the Principal at any time before a Plea pleaded to a Scire facias versus Manucaptores or before Judgment by default the Court hath used to receive the Principal in discharge of the Bayl and if the Plaintiff will pray him in Execucion he shall have him if not then the Principal shall be discharged and the Plaintiff may take him in Execution when he can Arrest him or he may sue forth Execution against his Lands and Goods but antiently the Principal could not render his body in discharge of his Bayl after he was returned Non est inventus upon Record upon the Capias ad satisfaciendum but now the Court hath the middle way which is to receive the Principal upon the return of the first Scire facias but not after that If the Defendant comes in by Cepi corpus returned in debt for twenty pounds or above or in any Action upon the Case or Trespass ad dampnum vel valenciam viginti Librarum or above or if he be Utlawed in any of these Actions ad dampnum vel valenciam viginti Librarum or more and reverseth the Utlary the Defendant in such a case ought to put in Special Bayl but in all other cases except in Writs of Priviledge at the Suit of an Officer Defendants appearance shall be received without Special Bayl. But this course is now altered by the late Act of Parliament so that the Plaintiff cannot have special Bayl unless it be in the Writ Debt twenty pounds or upwards and in all other Actions the true cause of Action must be set forth at large in the Writ whereupon the Defendant is Arrested otherwise a common Appearance is sufficient In all Writs of Priviledge at the suit of an Officer of the Court the Defendant if he be Arrested must put in special Bayl although the debt or damages demanded be under twenty pounds and if an Officer or Attorny of the Court be sued he ought to be sued by Bill at the first and not by Original and if he shall refuse to appear he shall be fore-judged the Court and then he may be Arrested and so is the common course but it is reserved to the Plaintiffs choice whether he will sue him by Bill or Writ But if one priviledged person sue another the Plantiff may and doth usually Arrest the Defendant whether he be of this or any other of the Kings Courts at Westminster for that the first priviledge destroys the second Concerning the Writ of Clausum fregit and special Writ containing the declaration at large and of Fileing New Originals IF the Defendant formerly had been Arrested upon a Clausum fregit the Plaintiff might have declared in any personal Action thereupon except in debt But of late they have used and do now use to declare in debt upon suing forth a New Original in debt Of Imparlances IF the Defendant appears upon an Arrest by 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 retornable the first or second retorn 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 The reason why they have had Imparlances in all cases in the Kings Bench is because the Defendant being arrested upon a general Writ
but himself onely Of Renewing Judgments by Scire facias IF the Plaintiff in a Judgment dyes his Executor must renew the Judgment by one Scirec facias but otherwise it is where the Defendant dyes there must be two Writs of Scire facias unless there be Scire feci retorned by the Sheriff upon the first Writ of Scire facias for one Scire feci doth amount to as much as two Nichil's retorned Of Persons taken in Execution in forrein Counties NO Defendant can be taken in Execution in a forrein County untill there be first a Writ of Capias ad Satisfaciendum sued forth in that County where the Action lies and Non est inventus retorned thereupon and filed or that there be an Execution in the Proper County entred upon the Roll and a Testatum awarded Concerning the Priviledge of the Clerks of the Court. THe Clerks of the Court may resort to the Rolls of the Court to examine their own Entries and make them right if there be no Writ of Error brought nor Rule of Court nor Recordatur entred to the contrary in which case the Clerks hands are rendred useless so as he cannot amend any thing in the Roll without a Rule of the Court. Of carrying down Causes to be tryed by Proviso THe Plaintiff must make one Default in not carrying down the Record of Nisi prius before the Defendant can take it down by Proviso except it be in Replevyn in which Action the Defendant may take it down the first time and not stay till the Plaintiff makes Default Of giving notice upon Writs of Inquiry and Nisi prius BY the antient course of the Court the Plaintiff was not bound to give the Defendant notice of the speeding a Writ of Inquiry of Damages but the Defendant when there was a Judgment against him then ought to have taken notice at his peril But that Course is altered by Rule of Court and now the Plaintiff must give the Defendant eight dayes notice The Plaintiff ought to give the Defendant or his Attorney notice of every Tryal by Nisi prius before it be Tryed But if the Record hath been once carried down and notice given then the Plaintiff carrying it down the second time or if the Defendant carries it down by Proviso there needs no notice Of Declaring upon Reversal of Vtlaries and Bayl to Writs of Habeas corpus IF the Plaintiff do not Declare within two Terms after the Utlary reversed or Bayl put in upon a Removal by Habeas corpus c. the Defendant is not bound to accept the Declaration afterwards But in such case the Defendant cannot Non pros the Plaintiff and have costs for want of Declaring because the Defendant was not Arrested upon a Common Writ Of Appearing in Quare Impedit and Wast upon the Distress IF the Defendant in Quare Impedit or in a Writ of Wast do not appear upon the Distress it is peremptory to him and the Judgement shall be entred against him of course without moving of the Court. Of Arresting Judgment AFter a Verdict is given for the Plaintiff there is four dayes from the retorn of the Habeas Corpora allowed the Defendant to make an Arrest of Judgment unless the Habeas Corpora be retornable the last retorn of the Term And in that case the Defendant hath day untill the last day of the Term and no longer And there is no Course of the Court that gives four dayes after the bringing in of the Postea but after the retorn of the Habeas Corpora Of Matters concerning the Prothonotaries and of the Clerks and Attornies of this Court and their Clyents EVery Attorney of this Court when he is first sworn an Attorney hath an Election to settle himself and his business in which of the three Prothonotaries Office he pleaseth but after his Election once made he must continue in that Office and may not remove from Office to Office without the Licence of the Court upon just cause shewed against that Prothonotary from whose Office he would remove And for the Clerks they have an Election to be of which office they will before they are admitted but when they have made their Election and are once admitted in an Office they are concluded and may not remove without leave of the Court. So likewise where a Cause is first begun in that Office it must continue to the end of that Cause As where the Declaration is entred there the Issue and Judgment must be entred the Execution or Scire facias upon that Judgment must be in that Office where the Judgment is and so it is for Habeas Corpus upon Bayles the Procedendo must go out of the same Office from whence the Habeas Corpus went and if there be a Scire facias upon the Bayl it must be in the same Office where the Record of the Bayl is And likewise every Clyent hath an Election to chuse what Attorney he pleaseth but after he hath chosen an Attorney in a Cause he cannot change him without leave of the Court upon just cause shewed against him Of Tryals at Barre FOr Tryals at the Barre they are called in course the chief Prothonotary hath the first turne the second Prothonotary the second course and the third Prothonotary the third course And the same course as hath been before observed is for reading of Records of Demurrers and special Verdicts and the like for Wagers of Law which are alwayes called upon the Quarto die post after the Barre hath been once heard over Of Declaring in Causes Removed aswel out of Inferiour Courts as otherwise THe Plaintiff that Declares upon a new Original where a Cause is removed out of an Inferiour Court must not vary from his first Action in the Nature of his Action in the County or in the Sum in demand and this New Original must be brought within two Terms after the Bayl put in accounting that Term wherein the Bayl was taken for one If the Defendant be Arrested by Capias out of this Court and afterwards removed by Habeas Corpus and committed to the Fleet and charged with this Capias the Plaintiff in that Capias may by course of the Court declare against the Prisoner in Custodia upon the Capias and if the Defendant will not Plead Judgment shall be entred by Nichil dicit Of an Habeas corpus THe Habeas corpus is the Warrant to bring the Prisoner to put in Bayl and the Bayl must be taken upon the retorn of the Writ or within some few dayes after and in the same Term and then shall be intended to be taken upon the retorn of the Writ and therefore where the Writ is retornable upon a day certain there the course is to put down no day for the taking of the Bayl but where the Writ is retornable immediate there must be a day of the Caption which must be some day before the end of that Term next after Teste of the Writ Of Declaring upon Mesne Process BY the Common Practice of this Court now used if the Defendant be Arrested upon Mesne Process in London or any other County or City the Plaintiff may declare against him in such County or City where he was so Arrested or may lay his Action in any other County in England at the Plaintiffs Election And the Defendant is bound to acept of as many Declarations by himself or his Attorney in any Action whatsoever at the same Plaintiffs suit real Actions only excepted as the Plaintiff hath cause to declare against him but the Defendant is only bound to put in Bayl to the first Action if the case so require and only to appear to all such other Actions as shall be brought against him by the same Plaintiff as aforesaid and to receive Declarations thereupon without putting in Bayl thereunto except in the first Action only as aforesaid But note that the Defendant is not bound by the Rules or Usage of this Court to accept of Declarations at any other persons suit than the Plaintiffs at whose suit he is Arrested as the course is in the Court of the Kings Bench for that there the Defendant is supposed to be in Custodia Marrescalli and so to answer c. Of Nonsuits UPon any Writ sued out of this Court retornable in any Term the Plaintiff hath that Term wherein the Writ is retornable and until the last day of the subsequent Term to Declare against the Defendant but not afterwards And if he doth not then Declare the Defendant upon a Rule given in that Office where the Plaintiffs Atorney to the Writ enters may there sign a Non prosedendum and take out Execution thereupon for his Costs And there is the same time allowed the Plaintiff to Declare in the Kings Bench otherwise the Defendant may there have a Non prosedendum FINIS
a Latitat could not know the cause of Action until the Declaration And this reason holds in the Common Pleas where the Defendant is arrested upon a general Clausum fregit But in other Special Writs where the very Declaration is in the Writ and the Defendant might when he is arrested see the Declaration in the Writ there he ought not imparle but to answer the first Term as well in the Kings Bench upon their new Writ of Aceciam bille as in the Common Pleas upon Special Writs Of signing and entring of Judgements BY the course of the Court after the ordinary rules given in the Office be out the Plaintiff may enter Judgment by nichil dicit if the Defendant doth not plead and this is as well in Ejectment as in all other personal Actions without moving of the Court But of late it hath been used in Quare Impedit and Ejectment to move the Court before they enter Judgement and so is the Common practice now used But in all real Actions no Judgment is to be entred by nichil dicit without motion in Court and there was formerly a rule made that no Judgement by default should be entred in Ejectment without moving the Court which rule was afterwards altered by another and then Judgment might have been entred by default upon a Rule entred by the Secondary so as the Parish where the Lands lye were expressed in the Rule But now Judgment cannot be had by default in Ejectment unless upon motion in Court and Affidavit thereupon made that the Tenant was actually served with a true copy of the Declaration and that the contents thereof were read unto him or he or his Wife or his Servant were acquainted with the meaning thereof Of Appearances upon Exigents Habeas Corpus Pluries Capias Distringas c. IF the Defendant appears upon the Exigent or upon the Habeas Corpus Pluries Capias or Distress or upon Bayl put in upon a Habeas Corpus or upon an Utlary reversed then by the course of the Court the Defendant must answer the first Term because he hath stood out so many Process and in such cases the Court does not use to change the Visne Of Attachments upon Contempt IF an Attachment be granted upon a contempt sworn by Affidavit as it ought and the Defendant is Arrested thereupon and brought into Court he ought to be committed to the Fleet and then to be examined upon Interrogatories if he clear himself upon his Oath he shall be discharged and have his costs paid him by the Prosecutor If guilty he shall be fined but in this case the Prosecutor shall not be admitted to prove the Defendant guilty after he hath cleared himself upon his Oath But the course now used in such cases is for the Defendant with Sureties to enter into a Recognizance in Court for his appearance de die in diem until he be discharged and then to turn him over to the Secondary to be examined upon his Oath upon Interrogatories but for want of Manucaptores to send him to the Fleet. Of amending Entries c. BY the course of this Court every Declaration and Plea ought to be entred upon Record the same Term it is delivered or pleaded and every Issue and Demurrer the same Terme it is joyned and therefore if it be altered or amended before it be entred he that altereth must pay costs but if it be once entred upon Record then there can be no amendment without consent or Rule of Court upon Motion The Roll wherein the Declaration is entred with an Imparlance to it is called the Imparlance Roll the Roll of the next Term after wherein the Declaration is again entred as before Verbatim together with the Issue or Judgment to it that second Roll is called the Issue or Judgment Roll and if the first Roll which is the Imparlance Roll be right and the second Roll which is the Issue or Judgment Roll be mistaken the Imparlance Roll is the warrant to amend the Subsequent Roll and if the Imparlance Roll be mistaken and the Issue Roll both yet if the Originall Writ be right all the subsequent Writs and Rolls are amendable by the Original If the Defendant pleads a special Plea he may wave it the same Term before it be entred or any Replication made thereunto and plead the general Issue but if the Term be past it is intended to be entred and therefore cannot be altered or waved without consent or motion in Court yet if in truth the Plea be not entred but still in Paper it may be amended upon payment of Costs Of Reading Demurrers Special Verdicts c. in Court and the course used therein by the Prothonotaries AFter the Bar have been once heard over then Records of Demurrers and Special Verdicts are read and Wagers of Law taken by the Secondaries In order the first Prothonatory begins first and then the second and third Prothonotary in their courses and untill the Books be delivered to the Judges and the Record read the matter in Law ought not to be spoke to at the Barre Of the Chief Prothonotary THe chiefe Prothonotary swears all the Officers and Attornies of the Court and enters the Admissions of Record for the Officers and for the Attornies he enters them in his Remembrance Roll that they were Jurati in Curia and makes certificate thereof unto the Clerk of the Warrants by which he enters the Attorney's name into the Roll. The chief Prothonotary ought to enter all Patents made to the Justices or Officers of this Court and other Patents of Grace by the King to the Court and ought to have the first Plea Roll and the first Common Roll of the Court and to enter all Writs of Adjournment of the Terms Of the Teste's and Retorns of Writs in all Actions real and personal and those brought by Attachment of Priviledge c. THere must be nine retorns betwen the Teste and the retorn inclusive of all Writs of Formidon Writs of Right Ayel c. and in Dower five retorns and in all other Personal Actions fifteen dayes except in Actions brought by Attachment of Priviledge which are retornable de die in diem and the like is where the suit is by Bill against a Priviledged Person in which cases the Continuances are de die in diem and alwaies upon a day certain and not upon a common Retorn The antient course of giving Warrants to confess Judgements THe Principal in a Bond might formerly have given Warrant to appear for himself and his Sureties and to confess Judgment for all and it was Warranted by the course of the Court But if the Surety dyed the Principal could not confess Judgment against the Executor of the Surety for then he should take away his Plea of plene Administravit And so it was if the Principal dyed his Executor could not confess Judgment against the Surety But this Practice is quite altered so that no Principal or other can give Warrant for any