Judges of these Courts these things are to be known First In this Court which is of the nature of a Court Baron not the Sheriff nor the Steward but as to all actions and proceedings by a Iusticies or other writ as also in other Suits which are there by plaint without writ the Freeholders Freeholders or suitors to be Judges of the County or Suitors are Iudges there But as to Outlawries the Coroners only are Iudges and the Sheriff Steward and Bayliffs are ministers and therefore the Sheriff can do no act there without the assent of the Suitors and if he do an Action of the Case lieth against Action of the Case against the Sheriff False Judgement him not a writ of false Judgement as it doth against the Suitors if they give a false Judgement and thereupon they are to be amerced whether the Suit be upon a Iusticies or not Secondly There must be two Freeholders at the least or else the Court cannot be held Thirdly In some speciall writ now out of use the Sheriff is Judge there Fourthly If the Freeholders do not appear they may be Affering amearced the amearcement affeared extreated and levyed but it must be done by two Freeholders at the least and may not be done by the Sheriffs without Freeholders Sect. V. Of the Povver and Proceedings of this Court in Generall THe power in Generall of this Court is either ex officio and of it self or by commission called a Iusticies and in Justicies both cases the Freeholders not the Sheriffs are Judges of this Court and they may by their own authority hold plea of hear and determine all lesser actions as actions of debt trespasse covenant detinue account and the like and in cases of Replevin where the debt or damage is not forty shillings or upwards and no freehold is in question and by a Iusticies they may hold plea of hear and determine all actions of what value soever and notwithstanding the freehold it self being in question And this not onely between persons and parties living within the County where the defendant lives but also between persons living elsewhere out of the County for any cause or contract ensuing within the County or any transitory things In all which cases their proceeding is much after the example of the higher Courts by entring of Plaints by the plaintiff himself or his Attorney putting in of pledges filing declarations And if the Defendant appear not by processe of summons attachment and distresse upon attachment infinite till he do appear which when he doth he is to plead and so to the triall of the cause which is commonly by wager of law but by consent of the parties it may be by Jeury as it may be also where the use of the Court is so And if judgement be given against the defendant the execution is by distresse a warrant is sent from the Judges to the Bailiff to seise the defendants goods put them in pound or sell them and bring the money in Court for the Plaintiff as the custome and course of the Court is And if the Court give judgement or do any thing contrary to Law the party grieved thereby must have his remedy by a writ of false judgement And Executors and Administrators may sue and be sued here as in other Courts But we shall open these things more particularly in the things that follow Sect. VI. Of a Iusticies A Iusticies is a writ in the nature of a commission directed to the Sheriff for the dispatch of justice in his County Court in some especiall cases wherein of his own authority he cannot deal And as to this part these things are to be known First That albeit the writ doth lie in divers cases yet at this day it is very rarely used in any case but in an action of debt or some such like action of or above forty shillings in which case the Sheriff hath not power in this Court without this commission Secondly That albeit the writ be directed to the Sheriff yet are the Suitors the Judges and their proceedings alike in this as in other actions And yet in this it is a County record and so it is not in the proceedings of all the rest Thirdly The Sheriff upon this writ may not make a precept to a Bayliff of a Franchise to have his cognizance of the cause nor may any other but the Sheriff and the high Sheriff as it is held himself hold plea upon this writ Fourthly A suit here upon Remove this writ is removeable as another suit is that is without it Fifthly The Sheriff is not bound to make any return of this writ Sect. VII Of an Attorney and Pledges ANy man may make a generall Attornees Attorney to sue for or against him in all pleas in this Court. And for pledges pledges which are such as do undertake for the Plaint that they should prosecute the suit and stand to the judgement of the Court there ought to be such in this as in other Courts of sufficient men of the county but this it seems is out of use and not necessary at this day Sect. VIII Of a Plaint THe Plaint is the first entry of the persons to and cause of the action in the Court upon which all the rest of the proceedings are grounded and is thus A. B. complains of C. D. in a plea of debt of ten shillings and so as the case is And as to this these things are to be known First No Plaint ought to be entred except in case of Replevins out of Court but in full County and sitting of the Court. And yet the course is otherwise and as it seems good enough Secondly The Sheriff or his County Clark or any other by either of their commandments or in their names may not enter any plaint in any mans name unlesse the Plaintiff be present in Court in person or else by his Attorney or deputy and yet this it seems is good enough though otherwise entred but for this cause it may be removed if it be set forth Remove and moved in another Court Thirdly Nor may any man enter a plaint in the name of a dead man of purpose to get money of the Defendant Fourthly Nor may any of the Officers of the Court enter or cause to be entred any more plaints then the plaintiffe hath cause and desireth against the defendant Fifthly There must be but one plaint for one contract trespasse or cause Sixthly The plaint that is for trespasse may not be vi armis for then a prohibition Prohibition may be had to stay the suit but leaving out these words it may be brought there for a trespasse Seventhly No plaint can be heard in this Court for charters touching Inheritance or Freehold Eighthly No plaint or suit can be entred here for debt or damages to forty shillings or upwards c. unlesse it be upon a Justicies But under forty shillings it may be for
A SURVEY of the County JUDICATURES Commonly called the County Court Hundred Court and Court Baron Wherein the nature and use of them and the way and order of keeping them is opened for the great ease and profit of all such as have occasion to keep or use them By WILLIAM SHEPPARD Esq LONDON Printed by R. DANIEL and are to be sold by Nathaniel Ekins at the signe of the Gun in S. Pauls Churchyard 1656. To the Reader and all his dear Countrymen My dear Countrymen WHiles I think of my day far spent and my night almost come when my Body must fall asleep and my Soul must to God my great Master that gave it me to give an account of my Time which I have had and Talents wherewith I have been trusted I am pressed to make use of the little time is left me to do what service I may for you And calling to mind the excellent invention of our Common Law * Coo. 2. part of his institutes fol. 311. observed by an eminent Judge of the Nation that men should not be troubled for suits of small value in the great remote Courts of the Nation but that they might be heard and determined in the Country with small charge and little or no travel or losse of time it ordained County Iudicatures the County Courts Hundred Courts and Court Barons where all Actions of Debt of the Case Detinue Covenant Trespasse and other personall Actions under fourty shillings which would be now more then twice so much were to have been heard and ended And as this Iudge hath it it was then accounted against the dignity and institution of those high Courts to hold plea of small or trifling causes Ne dignitas Curiarum illarum vilesceret ne materiam superaret opus And looking upon our present State that as it is generally conceived a third part of the many thousand actions now depending in Westminster Hall are such trifling actions that might be ended in the Country Iudicatures were these Courts duely regulated So that the Law that was instituted for the quiet and defence of man is now by corruption abused to his vexation charge and offence I cannot but say woe and alas that we are so miserably fallen and degenerated And taking notice further that there is at this time upon the spirit of our present Authority a deep sense of this and some other evils and pressures upon this Nation with a resolution as farre and as fast as it can to cure them if we our selves do not obstruct it These and some other such like considerations as these have put me on the resolution to send this rude draught amongst you that thereby I may perhaps provoke those that are concerned and have power in it to endeavour the regulation and reducement of this County Iudicature again to its pure and primitive institution And that they that are imployed in the keeping of these Courts may the better know how to keep them and they for whom they are kept the better know what to require of and expect from them that keep them I have adventured to send this little piece more amongst you And now if I can but have your good will and good word for all this it shall suffice to Your dear Countryman W. S. CHAP. I. Of the County Court THe County Court is a What the County Court is Court not of Record incident to the Sheriffs office for the hearing and determining of petty matters between party and party within the County wherein the Sheriff is onely a Register or Recorder and the Freeholders of the County are Judges The stile of this Court is GLOUC The first Court of E. C. Esquire Sheriff of the County aforesaid held at Gloucester the first day of May 1655. And the next Court The second Court c. Sect. I. Of the nature of this Court THe office of the Sheriff The Sheriffs office hath this Court incident and belonging to it and not to be severed nor granted away from it Nay the Lord Protectour by his Letters pattents cannot grant away the office of the Clark of the County Court nor the fees c. thereto belonging and if whilst the office or place of the Sheriff remaines void the Lord Protectour by his Letters Patents under the Great Seal shall grant away the said office of the Clark of the County or Shire Clark of the County or shall appoint any to occupy or use the same yet when the Lord Protectour shall afterwards make one Sheriff he shall avoid that grant for that the County Court and the entring of all the proceedings therein are incident to the office of the Sheriff the Sheriff is to appoint such Clarks under him Sheriffs Clark in his County Court for whom he will answer at his perill Sect. II. Of the time of keeping this Court. THese County Courts must The County Court to be kept monthly be holden and kept from moneth to moneth and must be no longer deferred but one moneth from Court to Court and so these Courts are to be kept every moneth upon a day certain and no otherwise and the moneths to be reckoned by eight and twenty dayes and not by the Kalender and so within the twelve Shires of Wales their Sheriffs must keep their Counties monethly The necessity of keeping this The reason of the keeping this Court monthly Court every moneth and upon a day certain is by reason of the Lord Protectors writs of Exigents which must be read there Sect. III. Of the place of keeping this Court. AS to the place wherein these Courts are to be kept these things are to be known First The Sheriff of Northumberland Sheriff of Northum by the statute made Anno 2. Ed. 6. Chapter 25. is to keep the County Court of that Shire in the Town or Castle of Alnewick and in none other place Secondly The Sheriff of Sussex Sheriff of Sussex by the statute made Anno 19. Hen. 7. chap. 24. is to keep and hold the Shire Court for that Shire one time at Chichester and the other time at the Borough of Lewes and so to be kept by turn for ever and every Shire Court holden there to the contrary and all things done therein shall be void Thirdly The Sheriff of the Sheriff of Chester County of Chester is to keep his Shire Court in the Shire-hall of the said County Fourthly The Sheriffs Shire Sheriffs of Wales Courts in Wales of the County of Brecknock shall be holden at Brecknock of Radnor at new Radnor and Prestene of Montgomery at Montgomery and Maghenleth of Denby at Wrixham and of Monmouth at Monmouth and Newport by turn one after another Fifthly For the County of Glouc. it may be kept in the city of Glouc. This Court may be kept in other Counties in any place of the County wheresoever the Sheriff and Freeholders please Sect. IIII. Of the Iudges of this Court AS to the
Action of the case him and recover his damage by it Seventhly if the things distrayned be put by him that did distrayn them in a place where the Sheriff cannot come at them to make a Replevin as a Castle or the like he may take the power of the County and after demand beat down the Castle to take them and the owner of the goods shall recover double for his losse what ever it be And if the goods be put in a Castle or driven into another County or other place where he cannot deliver them upon the Replevin or Retorno Habendo he may grant a precept in the nature of a Withernam to whom he will to take Withernam the parties own goods Or if the Sheriff command the Bayliff of the franchise to make deliverance and he return that he cannot come at them the Sheriff at the next County Court may enquire of it by inquest of office and if he find it true he may of his own authority grant a precept in the nature of a Withernam to the Bayliff to take the parties own goods The which goods the Sheriff or Bayliff may either keep or deliver to the Plaintiff to keep at his choice But the defendant is to pay for the keeping of them before he have them again And if the Sheriff coming to make a Replevin and the party that hath the distresse clayme propriety in the goods for himself or for himself and another of his Master the Sheriff cannot proceed till this question be decided by a Proprietate Probanda Proprietate probanda Which is a writ lying where the Sheriff is coming to make a Replevin by writ or without before or after Gager de deliverance and the party that hath the goods and distrayneth them claymeth them for himself or his Master for whom he destrayned as their own then the Sheriff can proceed no further in the Replevin untill the Playntiff have sued out this writ which if the writ were had out of the upper Bench or common pleas may be had thence else out of the Chancery and thereby the Sheriff may try the property and if he have no property that pretended it then the Sheriff may go on in the Replevin If he had he must surcease for in all cases of Replevin the Plaintiff ought to have the generall or speciall property of the goods at the time of the taking For a Replevin lyeth upon either property It is therefore a good plea in a Replevin that the property is to the Plaintiff and a stranger but this finding of the Sheriff by this writ is but an inquest of office and therefore if it be thereby found against the Plaintiff yet may he have a writ of Replevin to the Sheriff and if he retain the clayme of property c. yet shall it proceed in the Court of common pleas where the property shall be put in issue and finally tried But a man cannot clayme property by his Bayliff or servant because if it be found against him he shall be fined that so doth which the Lord cannot be unlesse he clayme himself Eighthly this suit after it is once brought into the Court and the defendant which is the party that took the distresse doth appear is to be determined in this Court But according to the plea ministred by that party it becomes reall or personall For where there is property claymed it is personall But if the defendant justifie the taking as in his freehold or for services or rent behind or the defendant avow for damage fesant and the Playntiff justifie by reason of common of pasture then it is reall And then there can be no further proceeding there except it be upon a justicies but the case must be removed by a writ of recordare which must be read and allowed in the Court That the Plaintiff in the Replevin may have notice of the Court wherein it is removed and of the day that he do then appear and declare there against the taker or else he will have a returno habendo And then is the defendant to make his Avowrie and set forth by what right or for what cause he took the cattels Tenthly for an Avowrie is Avowrie where one doth estrayne another for rent or other cause and the party estrayned sueth a Replevin against the taker then he must justifie and avow in his plea the lawfull taking of them and shew why he took them whether in his own right or a servant or Bayliff to another And upon this the Plaintiff doth usually joyne issue and so they go to tryall commonly by a Jury Eleventhly if after the Replevin brought the Plaintiff whose goods be taken do make default or be non suited before declaration or the like or judgement be given against him he that distrayned the beasts shall have them delivered to him again by the writ of Returno habendo Returno habendo And this writ must have this clause inferted in it That the Sheriff shall not deliver the goods without writ wherein mention shall be made of the judgement And hereupon the Plaintiff if he will may have a judiciall writ to the Sheriff to deliver the beasts to him Twelfthly where a plaint is Second deliverance removed out of the County Court or Court Baron by Pone or Recordare into the common Bench 〈◊〉 after the Plaintiff in the Replevin is nonsuited before any Avowrie made notwithstanding this nonsuit the party that distrayned may have again the same distresse and no other by this writ which is only to revive the first suit and the defendant cannot have a recaption in this case for a double distresse And this is called second deliverance after which had and tryall thereupon or that the Plaintiff be again non-suited before declaration Return Irreprevisable shall be awarded Return irreprevisable to the avowant then he may make his attorney to the intent to ground a writ to enquire of damages or he may hold the beasts as a distresse till he be satisfied and if any returno habendo go forth before this writ this is a supersedeas to it and the Sheriff may not meddle upon it 1. If after one return awarded a return shall be another time awarded there shall be no more Replevins granted And if upon this default the second time or otherwise the defendant be adjudged to have a new return the distresse shall remain Return irreplegiable Irreplegiable Where one hath sued a Replevin Gager de deliverance and yet hath not the goods delivered and the other avoweth now he may shew this in pleading that the defendant is still possessed of the goods pray that he may put in pledges for the deliverance which when they come to issue or demurrer shall be granted him or after avowrie if the defendant do not clayme propriety in them and then a writ shall go to the Sheriff to deliver them but where the avowant doth clay me propriety
in them this is not grantable It is a writ lying where a man is distrayned for any services Recaption and having that suit he is distrayned again for the same cause though the distress be for service due after the first distresse yet it lyeth not till the first suit be determined Sect. XII Of costs of suits recoverable in this Court AS to the costs of suits recoverable in this Court These things are to be known First in all suits whether judgement be given for Plaintiff or defendant such reasonable costs of suit are to be given as the Court shall set down Secondly where the Plaintiff doth not proceed or the cause doth go against him upon the triall the Court must give the defendant reasonable costs for the unjust vexation Thirdly such remedy and execution shall be made for recovering of these costs as the Plaintiff hath for recovering of the costs he doth recover in that Court against the defendant Sect. XIII Of Amercements in this Court and the streats thereof ANd to this these things are to be known 1. The Court may amerce any man for any contempt or disturbance of the Court made in the presence of the Court for in what case a man may be fined in a Leet he may be amerced here and this it seems need not be affered as all others but Afferement it is safe to do it And when any officer doth commit any default or neglect in the execution of his office and when the Plaintiff is non-suit Quia non est prosecutus Because he hath not prosecuted either at the first or after when the Jury is ready to give verdict or the Court give judgement or pro falso clamore And when judgement is given against the defendant he may be amerced And when any Bencher Iuror Plaintiff or defendant doth make default he may be amerced so also every man for his default of appearance after summons may be amerced But all these amercements upon officers for their miscarriage must be Afferement affered by the Benchers the rest by them or some others otherwise they may not be extreated they may be levied by Estreates distresse and putting in pound not by sale without a speciall custome in it and being levied shall go to the use of the Sheriff And the Sheriff must see that he leavie none of these amercements untill they be first allowed by two Iustices of the Peace Sect. XIV Of removing of suits out of this Court SUits may be removed out of this into a higher Court. And this is to be done either by a recordare or by a pone And Recordare therefore the recordare is said to be a writ out of the upper Bench or common pleas directed to the Sheriff commanding him to send a plaint that is before him without writ in his County Court into that Court from whence the recordare is sent to the end that the case may be there determined And this the Sheriff must certifie under his seal and the seal of four of the Suitors of the same Court and he is to summon the other party to be in that Court whether the plaint is to be sent by a day and a pone doth Pone nothing differ from this but that that is to remove such suits as are there before the Sheriff by writ and not by plaint and as to this these things are to be known 1. That if these be sued out by the Plaintiff in the County Court it may be had without shewing any cause at all if it be had by the defendants suit he must shew cause As first being to remove a plea in a replevin by plaint to shew that the defendant avoweth for damage fesant and the Plaintiff doth justifie for common of pasture which is a plea touching freehold and therefore should not be without writ Or that he before whom the writ depends is a favorer of him that is of the other side Secondly if any officer of the Court proceed after the removeall he may be punished for it in the Court from whence the writ to remove it came for the suit in Law is now at an end in the inferior Court Thirdly and after it is once sent away it can never be sent back again but must be tried in the Court into which it is sent Fourthly a suit is sometimes removed out of this Court into False judgement a higher Court by a writ of false judgement And this writ is defined to be where an erronious judgement is given in any inferior Court that is not a Court of record as County Hundred or Court Baron then the partie grieved by the judgement may have this writ and remove the whole Proces of the suit into the common pleas and there it shall be examined and if it be found the judgement shall be reversed and the Suitors or Judges Jurors amerced of the Court that gave the judgement amerced Sect. XV. Of the Povver and duty of the officers of the Court. AS touching the power and duty of the officers and those that act under this Court these things are to be known First the Sheriff may if he will appoint speciall Bailiffs that is others besides the common Bailiffs to execute the processe of the Court. Secondly some say a warrant from the Court by word may be good in these cases but it is not safe to trust to such a warrant but to have it in writing Thirdly the officers that have any precept to execute must do it with all care and when done or not done give an account and make a return of it especially if they take goods in execution otherwise it is dangerous for perhaps by the not return the Act of the officer may become unlawfull Fourthly in taking of goods they must be reasonable Fiftly they may enter into a close or into any house of any other mans the door being open to take the goods of any man there upon any precept Sixthly they may take the goods of any man in any place within the County in another mans house or ground as well as in his own Seventhly they are to take upon execution so much of the goods as will satisfie the execution and bring them into the next Court where they must be prised Eighthly they are not to proceed in any case after it is removed into another Court Ninthly if the Sheriff or any of his officers shall procure others to commence suits against any person and shall cause them to resort to this Court. The party attached upon any such suit may replieve his distresse so taken and remove the suit before Remove the Justices c. Before whom if the Sheriff be convicted of such procurement he shall be amerced grievously to the Lord Protector and shall answer to Amercement the partie grieved treble damages Tenthly the Sheriff his Shire Clerk or deputies shall Estreates make no estreats to leavy the said Sheriffs