execution of eyther of which Commissions and returne whereof eyther of them may giue to the other a day to shewe cause why Publication should not be granted The day so giuen is one weeke which being expired and no cause shewed to the contrary Then publication is granted and neyther partie can examine any Witnesses afterwards vnlesse it be by especiall order of the Court which is neuer granted without an Oath made that the party which requireth the same nor any of them hath seene or bin made priuy to any examination of any the VVitnesses formerly examined in this Court by eyther of the parties And some good cause be showne eyther by Oath or certificate of commissioners why the party could not get his sayd VVitnesses examined within the time limited for their examination In which case sometimes the Court giueth order to examine VVitnesses by a time prefixed at the parties perill with this Prouiso That the party shall not in the meane time see the sayd former examination And sometimes the Court giueth order that the sayd party shall examine his VVitnesses to informe the conscience of the Iudge onely and not otherwise These Depositions are neuer publisht but by especiall order or consent of the parties but deliuered to the Iudge sealed vp by the Officer vnder whose custody they do remayne to the end he may peruse them If any one be called by a Sub poena to appeare in this Court And vppon his appearance the complainant or any other doth arrest him in any other Court He shall haue a Super-sedeas to discharge the Action because he must haue free going and free comming But it is not so if the complaynant bee arrested except it be after issue is ioyned and a day is giuen for the matter to bee heard And the Complaynant comming to the Court with euidence to maintayne his cause is arrested The Court in this case shall defend him and set him free to follow his suite But this is seldome seene And hee that is Plaintiffe in the other Court may declare against him heere Praesentem in curia if hee please See 37. Eliz. If any one who hath Priuiledge in Chancerie be arrested into another Court in a ioynt-action with his VVife for matter concerning her Notwithstanding the Couerture shee shall not haue any benefit of priuiledge here See Powles case If one who is priuiledged in another Court as in the Kings Bench Common pleas or Exchequer do arrest one of this Court who is heere priuiledgd as a Clerke or otherwise The Priuiledge heere how soeuer it is in other cases sufficient to supersede the proceeding else-where yet in this case I haue neuer seene it to preuayle against the other priuiledge For amongst like priuiledged men most speede carries it away The Order made and ordained by Sir NICHOLAS BACON Knight Lord Keeper of the Great Seale touching the Examination of witnesses in perpetuam rei memoriam Dated the tenth of December in the third yeare of the late Qu. Eliz. followeth FIrst the Commissioners shall examine no Witnesses but such as bee aged and impotent Item the complaynant or party who sueth forth the commission shall giue warning by precept from the commissioners vnto the partie that should take preiudice by this examination by the space of fourteene dayes at the least of the time and place when and where the said commissioners will sit vpon this commission And the same warning beeing so giuen The commissioners are to bee satisfied by the Oath of the party complaynant or of some other credible person that warning is giuen accordingly before they shall proceed to the execution of their Commission Item If the party Aduersant or defendant can shew before the Commissiouers good cause of exception either against the Witnesses produced by the complaynant or any of them Or against the commissioners themselues Or otherwise then they shall cease and forbeare any farther execution of the commission And the commissioners shall certifie aud returne the sayd causes and execptions vp with the commission Item If the party aduersant cannot shew sufficicient cause as aforesaid then the commissioners shall proceed to the examination of Witnesses and the party Aduersant or Defendants shal haue liberty to ioyne in the examination of the same Witnesses or of any other likewise vpon Interrogatories on his behalfe if he thinke good Item The commissioners shall certifie in their returne of the commission such acceptations as the defendant shall take against the proceeding in the same commission and whether the defendant did appeare or no And if the Defendant did not appeare they are likewise to certifie and returne whether Affidauit were made of the giuing of warning by precept as aforesand or no Orders to bee obserued before the granting of Publication of the sayd Commission THe party who prayeth publication shall first by himselfe or some other make Oath that the depositious of the same witnesses are necessarily to be giuen in euidence on his behalfe Item Oath also must bee made that the same Witnesses be either dead or so aged or impotent as they cannot trauell to testifie viua voce without danger of life Item This Oath being so taken a Master of the Chancerie must first open the Commission and consider whether this Order before mentionâ—…d hath bin obserued in all poynts wherein he being satisfied publication is thereupon to bee granted Prouided alwayes that no Depositions shal be giuen in euidence but against those persons that were warned by precept as aforesayd or against their Heires or Assignes And prouided also That after examination had and taken as aforesayd And after Publication had and granted of the same examinations The party Aduersant or Defendant shall not bee admitted to haue any new examination on his behalfe concerning the same matter Item This Order is to bee obserued in case where the commission is ex parte quaerentis onely and it is to bee engrossed in Parchment and subscribed with the hand of the Register and to bee annexed to euery of the sayd commissions but not otherwise For if the Defendant ioyne then these Articles shall not need The difference vsed betweene a Ioynt-Commission in the aforesayd nature And a Commission exparte followeth THE Ioynt-Commission is made in forme as all other generall commissions to examine Witnesses Super Interrogator ministrand bee Adding to the end of the same these words viz. in perpetuam rei memoriam permansur The commission ex parte is to haue these rules inserted vnder the Registers hand and the commissioners names are specially to bee assigned by the Lord Keeper or Lord Chancellour for the time being Termino Michaelis Anno Regni Eliz. Reg. Sext. MEmorandum That all Iniunctions granted for preseruation of possession during the suite in the Court of Chancery shall haue this clause condition contayned in them viz. That the party who prayeth possession was in possession at the time of the Bill exhibited and certaine yeares before And that his intrest is not
bee returned then lyeth a Capias vtlagant generall which is for the body onely Or else a Cap. vtlagat speciall which is for the body and goods Note that if you doe sue any of the Nobilitie of this Land who are of the Parliament House in any action whatsoeuer wherein Processe of Vtlary lyeth Although the Sheriffe returne him Nihil habet yet you may not sue a Capias against him but a Pone into the Shiere where his Land lyeth wherevppon if he do not appeare hee looseth fiue pounds And after a Pone you shall sue a Distresse and Distresse after Distresse in infinitum vntill he doth appeare If after the Sheriffe haue taken the Defendant vpon a Cap. ad satisfaciend for the Plaintiffe He suffer him to depart vpon Sureties or pawne and commit him not to safe keeping It shall bee said an escape against the Sheriffe And then the Plaintiffe may at his election choose whether hee will call for the Returne of the VVrit or sue the Sheriffe for the Escape and recouer his Debt and Charges against him O therwise hee may haue his Capias and Exigent and vpon Returne thereof vtlaw the Defendant vpon the Iudgment After this kinde of Vtlary the Defendant shall neuer haue his pardon except he first agree with the Plaintiffe and satisfie him Also the Plaintiffe may at his election haue a VVrit of Elegit in this case to extend vpon halfe the Lands and goods of the Defendant except Cattle and Oxen for his plough c. But it behooueth the Plaintiffe to take good heede how he sueth forth the said VVrit of Eligit For if it be once entered you shall neuer haue any other Execution Also after a iudgment the Plaintiffe may haue an Execution of Fieri facias de bonis catallis and thereby leauey his whole summe that is giuen with the Costs or some part thereof according to the value of the goods of the Defendants which he can finde And if at the first he bee not satisfied of his whole summe hee may sue forth another Fieri fac and so one after another till he bee fully satisfied of his whole Debt Your Processe being in a VVrit of Rescous and Rauishment of a Ward as in Trespasse you shall hold like proceedings of Attach and Distresse and for want of Distresse three Capias and an Exigent The like in a Quare eiecit infra terminū Eiectione firme and this was giuen by a late statute And the like by the same Statute in a Writ of Annuitie and Couenant vppon an Indenture But in a Writ of Entry the like proceeding is not for the Processe is Grand Cape and Petit Cape The Grand Cape lieth when any of those VVrits are deliuered to the Sheriff to summō the Lands and if at the returne of the same the Defendant appeareth not but maketh default then the Prothonotaries Clerke is to giue a day to the tenant to come in or else a Grand Cape shal be awarded of the Land whereuppon he shall be in the courtesie of the Court whether they will grant him a Supersedeas for the discharge of the same or no. Otherwise hee is to wage his Law and depose that hee was not lawfully summoned which if he doe and it bee afterwards proued that hee was lawfully summoned then he is in danger of periury If the Tenant or Defendant doe not appeare vpon the Grand Cape then a Petit Cape is to goe forth and a day likewise to bee farther giuen and vppon default of appearance then the Lands in question are recouered and therevppon the Cape is directed to the Sheriffe to seize the Lands into the Kings hands vntill farther Proces c. Note that the Demandant is to take great care that there bee no Essoyne cast by the Tenants Attourney in this case for him the said Tenant to appeare For if hee haue before that time cast his Essyone then may he vpon day giuen call the Demandant non-suite and cause him to begin againe Therefore the Demandants Attourney in this case must especially inuigilate the Office of Essoynes and in Reall actions to get his VVrit fylled and to enter a Recipitur as in a VVrit of Dower Warrentia charta De droyte Surdisseisin haue the like proceeding because their Processe is also alike If you haue Iudgment in any action and suffer the Iudgment to continue without doing of any thing therein by the space of a yeare and a day you shall then be forced by reason of such delay before you may take out any execution thereuppon to sue out of the Court where your said iudgment is Recorded a writ of Scire facias and after the Returne thereof you are to giue a day to the Defendant to come into the Court and to shew cause why the Iudgment should not be awarded against him vpon his default wherevppon if good cause be not shewed the Iudgment is to bee allowed and execution may be taken forth In case where the Plaintiffe or Defendant happen to dye after Iudgment and before execution Then are the Executors or Administrators of the Plaintiffe to sue out a VVrit of Scire facias against the Defendant his Executors or Administrators which being returned then the Execution of Fieri facias at the first and in case where the Defendant is dead must bee awarded onely of the goods of the Testator or Defendant defunct and not of the goods of the Executor or Administrator This execution of Fieri facias being deliuered to the Sheriffe to bee executed if the Sheriffe shall finde that the Executor or Administrator did diuaste the goods of the Testator or Defendant defunct and shall thereupon returne a Divastauit Then shall a VVrit of Fieri facias be awarded de proprijs bonis Testatoris or Administratoris Or otherwise Execution may bee taken forth against the body of the Executor or Administrator at the choyce of him that sueth it out How to sue a matter of Errour IF you would sue a matter of Errour you must either make a perfect true Copy of the Originall or of the Exigent in that cause and carry it to the Cursitor of the Shiere where the Action lyeth thereby to make yovr VVrit of Errour VVhen you haue your Writ of Errour if it be before Iudgment you may deliuer it to the Clerke of the Treasurie wherevppon the Attourney for the Plaintiffe is to deliuer vnto you the number of the Roles where euery thing is entered And if it bee after Iudgment Then before you know the number of the Roles you must shew cause of Errour to the Court or else your Writ will not be allowed And in case that when the Writ bee alowed the Plaintiffes Attourney must deliuer the number of the Roles o the Clerke of the Treasury who will deliuer the VVrit ouer with the Record And then if the Defendants Attourney doe not get his Record to bee certified the same Terme the Plaintiffes Attourney may procure a day to bee giuen in
then to coÌ„municate them with the publike in a knowne way of dealing and a familiar language of commerce For aunswer whereunto I referre me to the preface in the frontispice hereof Desiring onely such as affect generall good to testifie their generous and ingenerate goodnesse in the assistance hereof Thus the Author prayes in ayde of your Common Pleas men especially and as duetie more bindeth him of that most worthy to be so most eminent a Prothonotarie among you Mr. Brownlowe with this Conclusion You that are Masters of this Science I aske your ayde and free suppliance Catâ—…ra turba tuas muscas venare ministro Fulminis hac valido propria praeaa Vale. THE KINGS BENCH THE Kings Bench consistes of the Prothonotary side and the Crowne Office side c. On the Prothonotaries side are as I deliuered in my Search of Record Onely Personall Actions and some mixt Actions besides such matters as the King is partie FOR their proceeding in personall and mixt Actions It is generally the like as that of the Common-pleas and therefore shall not require a second recitall So are their Fees generally alike For he that is a sufficient Common-pleas man is able to the practice of any other Court of Common Law whatsoeuer And therefore I shall onely shew you in what poynts of proceeding they doe differ and how easily those differences are or may bee reconciled withall The Kings Bench vseth onely a Latitat for their leading processe To this the first Leading Capias of the Common-pleas does answere For as the Capias hath an Originall Writ to goe before it So the Latitat supposeth and pretendeth a Bill of Middlesex to lead it also For that is granted in the Kings Bench because it is intended that the Defendant vpon returne of a Bill of Middlesex precedent doth Latitare in ualliua tua c. Onely the Latitat is like to Doctor Giffords water which serues for all diseases and so it holds one forme in all cases and Actions whatsoeuer and charges the defendant onely De pl. Trans bee it for debt or other cause c. But the Originall must containe the true cause of action and be so exactly set downe and drawn that all the following Processe and proceeding may be tyed to agree with it punctuatim The Kings Bench man payes fiue to the King in debt and the like actions aboue 40. l. So doth the Common-pleas man too But the Kings Bench man he payes but halle so much as the Common-pleas man doth and the Common pleas man is the better pay-maister too For hee payes at the first entrance into suite and vppon the Originall whereas the other payeth not till hee declareth which in many cases neuer is done at all In the Kings Bench the Plaintiffe hath longer time to declare then is allowed in the Common-pleas And where the defendant appeareth vppon ordinary Bayle whosoeuer will may come in and declare against him which is not vsed in the Common-pleas In the Kings Bench you shall not neede to put in special baile vnlesse it be for debt vpon Speciality So is it likewise in the Common-pleas But the Common-pleas enioynes speciall Bayle for 10. l. And the other not vnder 20. l. In the Kings Bench the Attourney for the defendant may mend or alter his Plea after it is deliuered ouer So may the Common-pleas man too But the Common-pleas man must doe it within the same Terme whereas the Kings Bench man hath a longer time For that hee is not tyed to enter by parcell and so soone as the Common-pleas man is but to doe it altogether and at much more leisure For the charge of remouing the body of any Prisoner by Habeas Corpus in the one or by Ostensum est in the other though there bee some difference in the first rise and here and there afterwards in the proceeding of the Remooue putting in Bayle and filing of it yet if wee conferre their Bills of Costs together in the conclusion we shall finde a very little difference in the whole Both pay dammage cleere that is poundage vpon euery twenty shillings in a Iudgment But the Kings Bench payes onely twelue pence in the pound and the other payeth two shillings There bee some other few differences in the formalitie but none in the substance of their mysteries And thus I leaue the Prothonotary side For the Crowne Office side It pleased some to make an especiall suite to exclude my pen from meddling in their mysterie in my former Worke. And therefore as I then sayd so I must now resolue that I doe aduisedly pretermit it and giue it backe to their owne care who are better able to performe this generall good at their pleasure when it shall please them to intend the publique And now I bend my iourney homeward and to my natiue Birth-bed London LONDON THEIR COVRTS OF COMMON LAW viz. First The Lord Mayors Court 2. The Sheriffes Courts THey doe all deale in Actions personall for the most part vnlesse on the Lord Mayors side sometimes a Reall Action falls in by chance for matter or demand of something lying within the Citie Their proceeding generally is ad exemplum of the Kings Bench onely differing in such cases as where their Customes carry their predomination The Defendant if he bee a Free-man hath foure defaults that is foure the next Court dayes of the place where the action lyeth to put in Bayle to the cause But the Forteyner hath no such priuiledge The Plaintiffe hath a day ouer to declare vnlesse it bee so that the Defendant is a Prisoner lying in Durance vppon the same suite For in such case the Plaintiffe must declare vppon the very next Court day following the Arrest And the Defendant is brought by Writ out of the prison to the Barre to pleade vnto the said Declaration There is one mayne difference betweene the Proceeding here and that aboue at VVestminster which is in the most familiar and ordinary action of the Citie viz. their Indebitatus assumpsit And that is that they deny wager of Law here vppon it which howsoeuer it bee countenanced and glossed by the Custome I am sure it takes away the Inheritance of a free-borne Subiect by the Law The like opinion I haue of an Attachment made of goods in proprijs minibus of the owner The proceeding heere generally in all cases where they lay by their Customes are to the president of the Common Law at VVestminster Onely they haue one helpe besides Errour and Erronicè emanauit after Verdict heere which is to marke the cause before my Lord Mayor where how farre that Superintendency may ouerrule I know not  l. s. d. The charge of the proceeding in the Sheriffes Courts in any ordinarie Action where the Iudgement is had by default is about 0 16 0 Where the Iudgement is had by Verdict of Iury about 1 6 8 For a Non suit in case where the Plaintiffe doth not declare about 0 8 0 For the Customes
which before Iudgement the Court will correct of it selfe fol. eod How you are to proceed when you finde any of those Errours fol. eod How if the party vtlawed can finde no Errour in Vtlary before Iudgement yet he may procure a Supersedeas and discharge the action by Pardon afterwards fol. 111. How the party vtlawed if he haue any goods taken by that Vtlary may free and haue them againe fol. 111. 112. In what case the Defendant shall be forced to enter into Bond to proue Errour fol. 112. The practice of the Court where the cause goeth with the Plaintiffe vpon a Demurrer the Dâ—…bt or matter recouered not being expressed for his reliefe by Dammage fol. eod The like proceeding in an Action of Waste if the Waste be certified in time fol. eod What extraordinarie prouision is made to giue satisfaction in case of Waste fol. eod Care is to bee had by all Plaintiffes and Demandants to heed where Essoynes lye and may be lawfully cast as also to the adiourning of Essoynes And the casting of the Ne recipiatur fol. 113. The Attourney for the Defendant is to heed the casting of Essoynes aswell fol. eod How Essoynes must be adiourned fol. eod What danger in the omitting of the Adiournment fol. 113. The danger of casting an Essoyne where it will not lye fol. eod What heed must bee had to discerne where the Inferiour may pray in ayde of the Superiour And where Vowcher lyeth fol. eod To whom the Processe must be directed for cleering the Question of Bastardie fol. eod Also to cleere and prooue Plenaritie or not Plenaritie in case of Aduowson fol. eod What Pleas Attourneys may plead fol. 114. To a Bond for paiment of money fol. 114. To a Bill of Debt fol. 114. To any other Action of Debt fol. 114. To a Bond for deliuery of Corn c. fol. 114. To a Bond for performance of Couenants vpon an Indenture Or vpon an Arbitrement fol. 115. To an Action of Trespasse fol. eod To an Action of Batterie fol. eod To an Action for Rent fol. eod To an Action of the Case vpon Assumpsit fol. eod To an Action for Slander To an Action for deteining of any thing whereof there is no Bond To an Action vpon Eiectment fol. eod What bee the Common issues vpon simple Actions fol. eod What you may plead vpon an Account fol. 116. What vpon Admistration What vpon a Demise fol. eod What is the generall issue in an Assize fol. eod How all Speciall Pleas are pleaded heere fol. eod How the Defendant is to peruse any Paper-booke of speciall pleading to which the Sergeants hand is put with the proper remedy against such Defendant if he deteine it fol. eod What aduice the Plaintiffes Attourney should haue vpon speciall Pleas and Issues vpon them fol. eod The danger of omitting such aduice fol. 117. What heed the Defendants Attourney must take in suffering a Nihil dicit against his Clyent especially vpon a Bond. fol. eod What benefit one may haue by tryall of a Title vpon an Action of Trans tantum fol. eod The difference betweene such an Action And Eiectione firme fol. eod What makes an Action at Trouer to lye fol. eod The difference betweene Trouer and Detinet fol. eod In what case it is better to suffer an Amerciament then to appeare fol. 117 118. The Inconuenience of continuing an issue too large fol. 118. What course either party may take if at the calling of the Iury they thinke them too fauourable fol. eod For what reason you may except against any of the Iury. fol. eod How many of the Iury may bee chosen for Tryers to the rest fol. eod How an exception against any of the Iury for combination with the Sheriffe or his Ministers shall be tryed fol. eod By whom and how things obiected foâ—… matter of fauour â—…o either party shall bee tryed fol. 119. The vsuall causes of Challenge to any of the Iury. fol. eod Vpon what testimony the Tryers shall finde the obiection or Challenge fol. eod What the Iury shall finde fol. eod How the whole Iury if they be challenged shall be tryed fol. eod The manner how to proceed in Tryall of an Issue fol. 120. What belongs to the Plantiffes Attourney to doe at the Tryall fol. eod What concernes the Counsaile Witnesses Iury and Bayliffe attending the Iury to doe at the Tryall 120. 121. What you are to doe if the Verdict doe passe with you fol. 121. How to sue forth a Recouerie fol. 121. What belongs to the Attourney to doe who sueth in a Recouerie in a Writ of Entry in the Post. fol. 122. Oath must be made of the true yeerely value of the Lands fol. eod What is the effect and Condition of the Recognizance which is to be entred into when you are to haue your Writ from Mr. Attourney vnder his hand fol. eod 123. What course you must take before you sue out your Writ of Entry if the Land be held in Capite fol. 123. What is to bee done after your said Writ is past through Mr. Attourneies hand fol. eod How many Sergeants you must reteine in this case aâ—… Barre fol. eod What is to be done after the Recouery is acknowledged fol. eod 124. How much you shall bee cast behinde-hand heerein by default of the Tenants personall appearance fol. 124. What course to take where the Tenants doe noâ—… appeare personally fol. 124. How the Recouerie may be ouerthrowne by the Attourneies neglect fol. eod What course hath beene formerly anâ—… in times past taken for exemplifying of the Writ of Enâ—…rie aad Seisin with the Râ—…urnes and The benefit of hauing this Writ De non molestando in a readines fol. eod Actions Transitorie and Actions Locall fol. eod The charge of the originall Writ and the meane Processe and Seale inde fol. 138. 139. The ordinary charge to sue an Vtlary in a single Writ fol. 139. 140. The charge of a Nisi prius in Guild-Hall London taken by default fol. 140. 141. The Charge of a Nisi prius in the Countrey fol. 142. Fees belonging to the Prothonâ—…tories their Clerkes fol. 143. 144. 145. Fees belonging to the Phillozers fol. 146. Fees due to the Custos Breuium fol. 147. When Originals and Plur. Cap 's may be put in here fol. eod When the Bundles of Writs of the Termes past ought to be brought in here fol. eod Fees of the Treasurie-house fol 148. 149. Fees of the Clerke of the Essoynes fol. 149. 150. The Cryers Fees fol. 150. The Charge of Reuersing of an Vtlary fol 151. Fees belonging to the Clerke of the Vâ—…laries fol 151. 152. How to get an Vtlarie to be certified fol. 152. The Charge of trauersing of an Vtlarie And the Pardon vpon the same fol. eod 135. The charges of a recouerie at the Barre fol. 154. 155. 156. A Rate of Fines vpon Recouery and Alienation by Table for the
shall returne a Cepi Corpus vpon any of them then the Plaintiffe shall haue no farther Proces against the Defendant If vpon any such Returne no Appearance shall be made on the Defendants part then the Plaintiffes Attourney must goe to the Phillzoers or the Prothonotaries and get the same Writ or the Returne thereof taken out And then giue to the Sheriffe Day to bring in the body of the Defendant or else be amerced at the discretion of the Iudges And if the Sheriffe doe not bring in his prisoner by the day giuen then the Plaintiffes Attourney is to get the Amerciament to be Estreated And to sue out a Writ of Habeas Corpus to bring in the body of the prisoner And if the Sheriffe who did so arrest the Defendant bee out of his Office before hee doe returne your said Habeas Corpus and the Defendant appeareth not yet then you are to sue foorth Distringas nuper vic The Phillozer vppon making out of the first Capias enters into the Role an Apposen So that it may appeare vpon Record which Apposen the Plaintiffe may continue for a Terme two or more if he please And their Common Processe must haue at the least fifeteene dayes betweene their Teste and Returne If Proces remaine vncontinued by diuers Termes and no exceptions be made thereof by the Defendant the same may bee continued by the Plaintiffes Attourney paying to the Phillozer or his Clarke for euery continuance foure pence per peice And if the Defendant do dwell in one County and the Suite bee commenced in another Then there must goe forth a Proclamation vnto the Sheriffe of the County where the Defendant doth dwell at the time when the Exigent is awarded And this Proclamation must beare Teste and Returne with the Exigent and both must bee returned the Defendant not ap pearing And if the Defendant doe put in Supersedeas before the returne of the Exigent then the Plaintiffe neede not care for the Returne of the Proclamation And if the Defendants Attourney come not to the Prothonotaries Clerke and take a Copie of the Declaration and make an answere to the same within nine dayes after the Returne of the Exigent Iudgment shall be awarded against the Defendant And if the Plaintiffe do not make his Declaration ready within foure dayes after the Returne of the Exigent Then the Defendant may call the Plaintiffe non Suite and recouer his charges And if the Defendant will haue a Supersedeas vppon Maine-prise It must bee sued out of the Clerke of the Treasury his Office vppon Sureties That if the Defendant make default hee shall pay the fine If the Sheriffe returne to small Issues vppon Distresse the Plaintiffe may haue Amerciament against him and haue him called into the Court to amend the Issues for the Kings aduantage If the Plaintiffe bee not ready to Reply vpon pleading He may enter Imparlance and giue day ouer vntill the next Tearme vnlesse the Defendants Attourney preuent him by giuing to him a Rule and day certaine to Ryply At the day of Imparlance The Plaintiffe is to call the Defendant and to giue him a day to plead or answere againe or to make it knowne whether hee will stand to the Plea or Answere which he made in the precedent Terme or no And if the Defendant doe neither make knowne that hee will then stand to his former answere nor answere de nouo vppon ordinarie dayes giuen vnto him Hee shall be Condemned in the Cause for hee cannot then refuse as hee might vpon an Al. bre VVhen any matter is pleaded to an Issue The Plaintiffes Attourney must haue a care to see the Issue be rightly entered into the Prothonotaries Role And thereuppon put in his VVarrant of Attourney if it bee not in before at the Exigent in manner as aforesayd But it is most requisite that the VVarrant should bee put in vppon the Exigent by the Plaintiffes Attourney for feare least the Defendant should not appeare but be returned vtlawed And the Defendant in case the Plaintiffe shal faile to put in his Warrant as aforesaid may sue error in the proceeding and assigne the want of a VVarrant which is manifest error and thereuppon the Plaintiffes attourney shall pay tenne pounds After the Issue is entered the Plaintiffe may sue forth Venire facias or else continue it for a Terme or two And vppon the Plaintiffes default by ouerlong delay the Defendants attourney may sue forth Venire fac pannell Note that you may enter the first Ven. fac returned fifteene dayes after at which day the VVrit of Nisi Prius with the Hab. Corp. is also awarded and the Triall likewise if it bee in London After verdict vppon Triall the Postea is returnable in his due time Thereupon the iudgment is entered and a Capias goeth foorth first into London because the action is laid in London This Capias is to be returned fifeteene dayes after Non est inuentus and then goeth forth Capias with Testat into the Country where the Defendant dwelleth then is execution sued out and not before Note also that if the Sheriffe at the day of the Ven. fac do returne rhe same sued then the Plaintiffes attourney may haue a Hab. Corp. theruppon to be made by the Clerke of the Iuries which hee is to see well examined when hee fetcheth the same away from thence And at the Returne of the said Hab. Corp if it be at the assizes and the Iury fill not at the calling of them the Plaintiffes attourney may craue a Decem tales et circumstantibus Ten the like of those that be standing by to fil vp the Iury. But if it be at the Common-pleas Barre He may not craue a Tales de Circumstantibus but a Tales onely or sue a Distresse with a Tales The first onely is a Decem Tales at the Barre The second an Octo Tales if the Decem did not fill Soe from Octo vnto Quinto and from Quinto to Duo Tales hee must discend till the Iury be filled all which the said processe must bee taken out of the Prothonotaries Office or the Office of the Clerke of the Iuries which bee respectiuelie entered most duely And if the Sheriffe vppon any of these sayd VVrits doe returne Tardè for want of sufficient time to warne the Iury You are to sue forth an Al. distress Note that if a Plea bee pleaded heere by the Defendant and the Plaintiffe haue therevppon replyed if if it bee a plea of a former Terme the defendant can neuer amend or with-draw his plea except it bee in Letters or Syllables But if it be in the same Terme he may For in this Court euery plea is or ought to be entred in euery Terme as it is pleaded howsoeuer it is otherwise in the Kings Bench. If the Defendant be returned sufficent in an action of Trespasse A Distresse is to be awarded And if hee be returned Nihil then the seuerall Cap and an exigent be awarded If an Vltary
Court vnto him to do it and to remooue the same By which day if the Defendant doth it not accordingly then hath hee lost the benifit of the Errour And after one VVrit of Errour so put by the Defendant shall neuer haue any more And if the Record bee accordingly certified then the next Terme following you are to assigne the Errours there Otherwise there will goe forth two VVrits of Scire fac to be deliuered to the Sheriffe of Midd. and to giue you warning to assigne the Errours which if you doe not within three or foure dayes after the Returne of the latter of the sayd two Writs the Writ of Errour will bee quasht and you shall lose the benefit thereof And if one be vtlawed vpon meane Processe and would reuerse the same by writ of Errour hee must take this course viz. Looke if there be any Writ vnreturned Or any VVrit mis-returned Or any VVrit vnfyled Whether the Proclamation bee fyled or no And whether it bee well returned Or whether a Warrant of Attourney be put in or no All these before mentioned be Errours which before Iudgement the Court will correct themselues And if you finde any of the said Errours you must goe to the Clerke and shewe him the number Role where the Exigent is entred and cause him to enter the Vtlary This being done you are then to get the Bundles where any such writ is fyled to bee brought into the Court from the Office of Custos breuium where they be kept Then you must haue one to enforme the Court therefore on your behalfe If the Errour which you pretend bee for want of a Proclamation then you are to get aswell the Record of the Terme where the Exigent is entred as the bundle of VVrits to bee brought into the Court to be reviewed And the like you are to do of the meane Processe And if it shall appeare to the Court That any of the Processe bee fyled and not returned Or there be error in the Returne Or there bee want of meane Processe or Proclamation the Court will award the the Reuerser to bee entred And if the party vtlawed can finde no Error and yet would vndoe the vtlarie if it bee vtlary before a Iudgement He is to sue out his writ of Errour and therevpon a Supersedeas Then hee must sue out his pardon of Course and vppon that Hee may haue a Scire facias directed to the Sheriffe of the County where the Originall was laid to giue warning to the plaintife to bee ready in Court to prosecute his action against the Defendant if hee haue any thing to charge him withall Hereupon if the plaintiffe doe not declare against him the Defendant within a certaine space giuen to him by the Court Then the Defendant shall bee quit of that action and the plaintiffe is to beginne his suite againe if hee will But if the partie vtlawed haue any goods or Cattle taken by colour of that Vtlary Then hee is to sue out a writ de non molestand from the Clerke of the Treasury which writ hee is to deliuer to the Sheriffe VVhereuppon the Sheriffe is to deliuer to him his goods or Cattell againe without Bond. But it is otherwise where the Defendant doth not bring his Writ de non molestand but intends to ouerthrow all by Errour for in that case hee shall bee driuen to enter into Bond for the proouing of the Errour In euery case where the cause goeth with the Plaintiffe vpon a Demurrer and the Debt or matter recouered is not expressed the Iudges of the Court may giue their finall Iudgment and grant you a Writ to enquire of dammages which writ shall bee directed and deliuered to the Sheriffe who by vertue thereof is to impannell a Iurie who after they be sworne vpon Euidence to be produced on the Plaintiffes part may giue in dammages so much as they thinke in their consciences and as the VVitnesses shall prooue vpon their Oath that he hath sustained Also in an Action of waste you are to proceede in like sort if you certefie the Iudges how the Defendant hath made the place waste and you doe it before Iudgment is by them giuen But the Iury needeth not to haue such great care of the dammages in waste committed as in other cases of enquirie in that kind For whatsoeuer the Iurie giues in dammages therein the Court will according to the Statute in that case especially prouided double the same dammages The Plaintiffes Attourney must be carefull to looke to the Clerke of the Essoynes and take heede where the Essoynes do lye and whether they be lawfully cast or no. And not onely so but the Attourney for the Plaintiffe or Demādant must farther looke to the Adiournying of the Essoynes the casting of the Nerecipiatur for the aduantage of his Client And the Attourney for the Defendant should also be as watchfull ouer the Casting of the Essoynes For that oftentimes it proues to bee a benefit to himselfe and a commodity to his Clyent Euery Essoyne must bee adiourned in time with such sufficient continuance as the nature of the Action requireth For want of Adiournement of the Essoyne there lyeth a Non-suite The casting of an Essoyne where it will not lye may be disalowed quashed and turned into a default But when it is rightly cast then it is allowed and then it is to be adiourned And you must farther take heede where the inferiour Tenant may pray in ayde of the Superiour Lord and when and in what case a Vowcher lyeth to recouer by force If Bastardy bee alleadged in generall in any case the Processe for the tryall of it is to be directed to the Bishoppe who is to certifie the same The like course is to bee held in Pleas of Aduowson whether plenaritie or not plenaritie to be so tryed and so certified likewise VVhat Pleas Attournies may plead and what not TO a Bond for pa◅ment of mony 1. Conditions performed 2. Per minas 3. Per Dures 4 Non est fact Gen. Speci To the Bill of Debt plead Per Minas Per Dures imprison Deins age Non est fact Generall Speciall To any other Actions of Debt plead Nihil debet per patriam Nil debet per Legem Deins age so it be not for Apparell To a Bond for deli uery of Corne c. plead Per Dures Per minas Non est factum Deins age Conditions performed The Common issues to Declarations grounded vpon Simple actions be Per legem or Per Patr◅am To a Bond for performance of Couenants vpon an Indenture or an Arbitrin◅ent may bee pleaded Per minas Per dures Non est fact or At large To an Action of Trespasse you may plead Non Cul. or At large if it bee not vpon trial of a Title To an Action of Battery plead Ex insultu querentis or Non Cul. To an Action for Rent plead Rien in arrere To an Action of the Case vpō Assumpsit plead Non Assumpsit
Defendant ioine with him in Commission Fees inde vt supra And if the Plaintiffe doe Reply before such time as the Defendant is examined vpon Interrogatories hee loseth the benefit of examining the Defendant in that kinde And if the Plaintiff do not reply the next day after the dayes expired which are giuen to him in warning to make his Replication The Defendant may in such case and vpon such default of the Plaintiffe moue to haue the cause dismissed for want of effectuall prosecution  l. s. d. Fee for the Entry of the Order 0 3 0 For the Rest vt supra for Demurrer When the Plaintiffe hath serued the Writ ad Reiungendum vpon the Defendant And Affedauit bee thereof made Hee may take forth his Commission to examine Witnesses This Commission is to be directed vnto such Commissioners as the Plaintiffe and Defendant shall agree vpon  l. s. d. Fee for the Affedauit made for the seruing of the Writ ad Reiungendum 0 2 4 The Warrant 0 3 10 The Writ Com. 0 7 2 If the Defendant doe refuse to ioyne with the Plaintiffe in the Cōmission Then the Plaintiffe may sue out the Commission himselfe alone on his party and direct it vnto foure Iustices of the Peace and execute it at his pleasure Otherwise the Plaintiffe may if he will examine his Witnesses here in Court When the Writ ad Reiungendum is serued vpon the Defendant he need not to enter any appearence therevpon but onely to Reioyne to the Replication Fee inde vt supra And if the Defendant doe ioyne with the Plaintiffe in Commission Then the Defendant is to pay the one halfe of the Fee of the Commission Fee inde 0 vt supra 0 If the Plaintiffe doe delay the suing forth of any Commission to examine Witnesses Then the Defendant vpon Oath made that hee was serued to reioyne may himselfe alone take forth a Commission to examine on his party Fee inde vt supra Or otherwise the Defendant for such delay of the Plaintiffe may the next Terme following moue to haue the Cause dismissed When the Commission is executed and returned The Plaintiffe or Defendant may assigne and giue to each other a day to shew cause why Publication should not bee granted in this matter c.  l. s. d. Fee for Returne of the Commission 0 0 4 The Rule for Publication 0 1 0 After Assignement to Publication the daies so assigned be expired if nothing be said to the contrarie Then Publication may be entred  l. s. d. For the entry of Publication 0 1 0 Note that nothing stayeth Publication but it must be granted vpon Order Affedauit Certificate or Consent After Publication is so had and procured as aforesaid the Cause standeth then at the highest For vntill Hearing nothing more is to bee done here  l. s. d. For the entring of the Cause then into the common Booke of Hearing 0 1 0 Lastly you shall obserue that nothing altereth the aforesaid grounded rules of this most Honorable Court but only Order Affedauit Certificate or Consent Which procured vpon some extraordinarie accidents doe sometimes change the prescribed custome of proceeding and rule of the Court. The forme of proceeding Ore tenus in the Starre-Chamber followeth IF the Delinquent hath done or spoken any thing worthy the Hearing and Censure of this honourable Court And be questioned for the same And therevpon doth confesse the fact or words and subscribeth his hand to the same Confession made in writing before the Lord Chancellour or Lord Keeper or any the Lords Iudges or the Kings Counsaile And doth when he is called to this Barre to answere it likewise confesse the same to be true and acknowledgeth his hand subscribed to the confession made as aforesaid Then and in such case the Court vseth to proceede to Sentence and Censure in the matter It hath not bin seene formerly That any but the Lord Chancellor or Lord Keeper the Iudges or the Kings Counsaile haue taken any such Examinations or Confessions so subscribed vnder the Delinquents hand as aforesaid Neuerthelesse if any other who hath authoritie in this behalfe shall take any such Examination subscription And the partie so examined and subscribing shall at the Barre confesse the matter and acknowledge the hand The Court may proceede to Sentence and Censure therevpon For the life of his Examination is the Confession and acknowledgement thereof at the Barre when the Court doth examine him as the custome is whether that which is confessed in writing be true or not And if the Lord Chancellor or Lord Keeper the Iudges the Kings Counsaile or any other shall take any such Examination and Confession Yet if the partie at the Barre shall either deny his hand thereunto subscribed or the matter therein contained to be true Then the Court doth not vse to proceede to sentence or censure him So consequently the strength of the Examination seemeth not to stand in the partie who taketh it if hee be of authoritie but in the parties Re-examining the same at the Barre and the Recognization thereof And so I conclude the practice of the Court of Starre-Chamber THE EXCHEQVER THE Exchequer hath three seuerall places of proceeding according to the three differing maner of busines belonging vnto it on the pleading side viz. The Chequer Barre The Chequer Chamber The Court of Pleas. For the Exchequer Chamber It is the English Court or place where the proceedings are held by English Bill and Answere And the proceeding thereof is very much like to that of the Chancerie as is said before and therefore I meane not to insist any further vpon it For the Court of Pleas It is the very Imitatiue of the Courts of Common Law in the Hall and therefore I would bee loth to boyle the same meate twice ouer to your Trencher but reserue my selfe for the Chequer Barre especially and the Receipt side The Processe and Proceedings of the Chequer Barre are distributed betweene the two Remembrancers of this Court viz. the Kings Remembrancer and the Lord Treasurers Remembrancer And what doth properly appertaine to the one and what to the other I haue at large set downe in my Direction for Search of Record according to the finall Doome and Order of Sir Richard Lyster Lord chiefe Baron in the time of King Henry the eighth And by the view of the particular matters and businesses therein appropriated so respectiuely you may the better iudge of the proceeding to be held vpon them the rather for that euen here at the Barre side they doe in most things follow the practice of the common Law also Therefore I shall bend my selfe to set foorth the practice of those things which are not presidented in the other Common Lawe Courts at all beeing matters onely proper to this c. with that small difference which is betweene this Court and those of the Common Lawe belowe Staires in point of Appearance at the beginning of a
and the returne of a Cap. Alias Cap. and Plur. Cap. fol. eod And what space betweene the Teste and Returne of an Exigent fol. eod How the Proclamation and Exigent must agree in Teste and Returne fol. 98. What time an Exigent hath to be returned in the Countrey and what in the Citie fol. eod When the Defendant not appearing may be returned vtlawed fol. 98. How and when your Plur. Cap. must be fyled fol. eod When and how the Plaintiffe must make your Warrant of Attourney fol. eod Where it must be deliuered fol. eod When the Defendant is to put in his Warrant of Attourney fol. eod How vpon any the Capias's returned Cepi by the Sheriffe farther Processe shall bee stayd fol. eod What course the Plaintiffe shall take to compell the Sheriffe to bring in the Defendant where hee appeares not Cepi Corpus being returned fol. 99. How to proceed against the Sheriffe in case he be out of his Office before you can get him to bring in the Prisoner fol. eod How to continue the Apposen fol. eod What time betweene Teste and returne of Common Processe fol. eod How Processe may bee continued by the Plaintiffes Attourney diuers Termes fol. eod To what County the Proclamation must bee directed And when it must bee returned fol. 100. In what case there needs no returne of the Proclamation fol. eod How after the Defendants appearance a Iudgement may be had against him for not taking a Copie of the Declaration and making answere fol. eod How the Defendant may call the Plaintiffe Non-suit for not declaring in time fol. eod Where and how a Supersedeas vpon Maineprise must be sued out fol. eod What course the Plaintiffe may take against the Sheriffe for returning too small Issues vpon Distresse fol. 101. What shift the Plaintiffe hath if hee bee not ready to reply fol. eod How the Defendant may plead a new or stand to his old Plea at the day of Imparlance fol. eod How the Defendant may then bee condemned in the cause for not auowing his former Plea or giuing of a new one fol. 101. What care the Plaintiffe must haue to see the Issue be rightly entred And his Warrant put in then at the vtmost fol. eod When it is best for the Plaintiffe to put in his Warrant fol. eod How the proceeding may bee erroneous for want of a Warrant And the Plaintiffes Attourney bee fined grieuously for the same fol. 102. When the Plaintiffe may sue forth Venire facias And how long hee may continue his issue without suing it out fol. eod How by the Plaintiffes delay the Defendant may summon and sue forth Venire facias fol. eod How you may enter the first Venire facias returned And when the Nisi prius and Habeas Corpora are to be awarded fol. eod How to proceed to Execution after Tryall and Verdict fol. eod How to proceed when the Sheriffe returnes the Venire facias sued or serued fol. eod How in case the Iury fill not at the Assizes the Plaintiffe may get it to be filled vp fol. 103. How to get the Iury to bee filled at the Common pleas Barre in case they fill not there fol. eod The order of crauing of Tales at the Barre with the taking out entry of the same fol. eod What you are to doe in case the Sheriffe doe returne Tardè vpon any your Tales fol. eod When and how the Defendant may alter or mend his Plea heere after Replication fol. eod The difference betweene this Court and the Kings Bench in Entring of their Pleas. fol. 103. 104. What is to bee done where the Defendant is returned sufficient in an Action of Trespasse fol. eod What is to bee done where hee is returned Nihil fol. 104. What in case he is returned vtlawed fol. eod How you must sue any of the Nobilitie who are of the Parliament House and how to proceed against them fol. eod How the Plaintiffe may haue his remedy and satisfaction of the Sheriffe in case where hee arrest and deteines not the Defendant vpon Capias ad satisfaciendum fol. eod How he may choose whether hee will take such course against the Sheriffe for an escape or proceed against the Defendant to Vtlary after Iudgement fol. 104 105. How this kinde of Vtlary is pardonable and how not fol. 105. How vpon a iudgement the Plaintiffe may 〈◊〉 Wâ—…t to extend halfe the Lands Goods of the Defendant with exception of some certaine things c. And what heed you must take how you aduenture to sue forth that Writ fol. eod How after Iudgement the Plaintiffe may by Writ leuy it vpon all the goods of the Defendant which he can finde fol. eod How the Plaintiffe may sue out as many Writs of Fieri facias as hee will till hee bee satisfied fol. 105. How to proceed in Writ of Rescous and Ranishment of Ward fol. eod How in a Quare eiecit infra terminum and Eiectione firme fol. eod How in Writ of Annuitie and Couenant vpon an Indenture fol. 106. The proceeding vpon a Writ of Entry fol. eod Where and when the Grand Cape lyeth The manner of proâ—…uring and proceeding vpon it with the meanes â—…o auoide it fol. eod When the Petit Cape may goe forth with the proceeding therevpon to the recouerie of the Land in question and the seizure thereof fol. eod The care to be had to see that no Essoyne bee in the meane time cast for the Tenants appearance with the danger thereof to the Demandant fol. 106. 107. What the Demandant must doe to auoid such euils in all Reall Actions fol. eod What proceeding is vpon Warrantia charta Dedroite and Surdisseisin fol. 107. How you must set your Iudgement on foote againe in case you let it sleepe aboue a yeere and a day without doing of any thing vpon it fol. eod What course is to be taken that the Plaintiffe his Executors c. may proceed to execution against the Defendant his Executors c. in case where either of them dyeth after Iudgement and before Execution fol. eod 108. Vpon whose goods the Execution must bee first awarded the Defendant being dead fol. 108. How in case of Diuastauit returned vpon your Fieri facias you may get it to be awarded vpon the goods of the Executor c. or Arrest his body for your Debt fol. eod How to sue a matter of errour fol. eod The difference of proceeding in a matter of Errour before Iudgement and matter of Errour after Iudgement fol. 109. The preiudice of the Defendant in case hee doe not get his Record to be certified in time fol. eod The danger of losing one Writ of Errour fol. eod When the Errours are to be assigned fol. eod The course whereby you shall bee compelled to assigne Errours fol. eod The danger in not assigning of Errours in due time fol. 110. How to Reuerse Vtlary vpon meane Processe by Writ of Errour fol. eod What be the particular Errours