Measure the Secondly delay of Execution after Judgment had and obtained IT is very well known to all Practicers I presume in this Court that in all actions brought by Bill in this Court in which after the Plaintiffs have recovered and are ready to take out Execution that a Writ of Errour may be brought thereupon by the Defendant returnable in the Court of Exchequer-Chamber and very easie at all times to be purchased but in all actions brought by original Writ and Judgments thereupon had and obtained no Writ of Errour lieth thereupon but must be returnable in the high Court of Parliament and that not so easie to be purchased the charges thereof being very great the Fees being most or all of them double over and above what those are of Writs of Errour returnable in the said Court of Exchequer-Chamber and upon the affirmation of such Judgment in Parliament there is always very great costs awarded and taxed to the Defendant in the Writ of Errour who is Plaintiff in the action for delay of his Execution occasioned by such Writ of Errour besides no Writ of Errour can be obtained in such case but when there is a Parliament in being for no Writ of Errour can or ought to be returnable ad proximum Parliamentum in regard it would be so great a prejudice and delay to the Subjects Plaintiffs in such actions the times of convening of Parliaments being so uncertain and onely lying in the King's power as Supreme it being his Royal Prerogative to Call Prorogue Adjourn and Dissolve them when he pleaseth So that for the reasons aforesaid Writs of Errour are seldom brought upon such Judgments as are recovered upon actions brought by original Writ Nay yet farther also after all this when such Judgments before obtained by Bill are affirmed upon the Writ of Errour in the Exchequer-Chamber yet may a Writ of Errour per Stat. de Anno. 27. Eliz. Cap. 8. be brought returnable as aforesaid in the said high Court of Parliament to the intollerable delay and vexation of the Plaintiffs in such actions a thing which the common Law of England in its own nature abhors and detests it being Festinum Remedium and its property such as in some reasonable time suum cuique dare and therefore it is certainly the best way so to bring actions and after such a manner especially where Titles of Land are concerned or great damages likely to be recovered that so after Judgment had Execution may not long be delayed which is for the good and interest of the Subjects who are Plaintiffs in such actions That against some sort of Persons and in Thirdly some sort of Actions there is no other way to proceed in the said Court but by Original Writ BY the Law of this Land no Peer First as to Persons thereof ought by his Body to be taken or arrested by virtue of any Writ or Process in any Civil Cause whatsoeever But although he may not be arrested yet may an Original Writ of Pone in the nature of a Summons as the Case requires issue out of the high-High-court of Chancery to cause him to appear at the return of such Writ in this Court there to answer the Plaintiff in such Writ named to his Complaint therein mentioned and if the Sheriff to whom such Writ is directed do thereupon return that he hath taken Pledges of such Peer to appear in this Court according as by the said Writ he was commanded and he do not appear accordingly Then upon such return there may be had from the Filizer of the said County a Writ of Distring directed to the said Sheriff commanding him that he distrain such Peer by all his Lands and Chattels c. in order to cause him to appear and if he do not thereupon appear and such Sheriff return issues thereupon ad valentiam c. Then the said Filizer may make forth an Alias distring and also upon return thereof a Plur. distring ad infinitum untill such Peer do appear and it is the usual course for such Sheriff to increase or double the issues upon every return but if he return but small issues the Plaintiff if he pleases may move this Court that such Sheriff may return better Issues that is to say greater Issues all which Issues must be by the Plaintiff's Attorney brought into the Filizer's Office who made out such Distring and from thence estreated into the Court of Exchequer there to be levied upon such Peer's Lands and Chattels by way of forfeiture to the King for his not appearing as aforesaid And upon a nichil habet returned by the Sheriff upon such Distring there may go out a Testat distring into another County where such Peer hath Lands or Chattels and be proceeded upon as aforesaid But if in case that such Sheriff do return likewise a nichil habet upon such Writ of Pone before-mentioned then the Attorney for the Plaintiff may have an alias or rather a Testat Pone from the said Filizer directed unto the Sheriff of that County where such Peer liveth and hath sufficient and upon a return of Pledges taken as aforesaid the said Attorney may proceed thereupon by Distring ad infinitum in form aforesaid And besides such honourable Persons as Peers who for their honour are said to be à Latere Regis and are protected by Law from attaching or arresting by their Bodies in all Civil Causes as is before said There are other Persons that in their politick capacity cannot be arrested or attached such are all Corporations and Societies of men that act all under one Common Seal of their Corporation as the Mayor Aldermen c. of any City The Dean and Chapter of W. The Master Wardens and Fellows of a College and the like and any Company incorporated in the City of London or elsewhere And likewise all Hundreders in any County which are liable to be sued upon the Statute of Huy and Cry where Robberies are committed and Felons escape such Bodies of Men being very numerous and no single Person in his natural capacity bound to answer in any Action whatsoever but yet they may be proceeded against to be made appear and answer in the same manner and way as the Peers of this Realm may by Distring ad infinitum and after Judgment had any of their Goods and Chattels may be taken in Execution and if it be in the Case of Corporations they must by their bye Laws apportion the Levari upon the rest and thereby ease him or them whose Goods are taken and if it be in the case of Hundreders then any Person or Persons grieved may complain to two of the Justices of the Peace of the County wherein such Robbery was committed whereof one to be of the Quorum who have full power by the Statute of 27 of Eliz. cap. 13. to tax and rate the said Hundred for and towards an equal contribution of the damages recovered that so the burthen of the Execution may
not lie wholly upon some few of the said Hundreders and thus much as to the Persons Now as to the Actions which lie not Secondly as to Actions in this Court but by Original Writ no Quare impedit Writs of Right Replevin and such like come into this Court but either by Original Writ primarily or else Plaints are entred in Inferiour Courts and removed hither by several Writs which are in their own nature as so many Originals and returnable coram nobis ubicunque c. as Writs of Recordare fac loquend Acced ad Cur. Certiorar Writs of Errour and the like and upon these there can be no prosecution by Bill in this Court So that if they could not be proceeded in by Writ this Court would lose and want much of the practice and business it now hath and hath long had and I wish long may have and the same or most part of it would be brought in the other Courts of Common Law at Westm And thus you see that against some sort of Persons in their single Capacities and against other sort in their politick Capacities and against some others as men inhabiting in any Hundred and in some sort of Actions there is no other way to proceed in this Court but by Original Writ That it is most agreeable to the Statute Fourthly lately made for setting forth the cause of Action in the Writ IT hath been formerly the practice in this Court by Bill of Middles or Latitat and process thereupon to arrest in trespass generally not mentioning the cause of action therein and yet obliging the Defendants to put in good Bail to the Plaintiff's Suit by marking the backs of such Writs or Process for good Bail and giving the Sheriff notice to take good Bail to such a Sum whatever the nature and cause of action was and by marking the Roll wherein such Writs and Process were entred for good Bail by drawing a Line under the Defendant's name and writing over it bon Manucapt and then the Attorney for the Defendant ought not to file a common Bail without searching such Rolls But this hath been thought very inconvenient and unreasonable by a late Parliament that Defendants should be obliged to put in Bail to the Sheriff to that of which they understood not any thing of the cause of action which made it very difficult to such Defendants to procure Bail especially if they happened to be arrested in places where they were strangers and therefore ought the rather to be able to satisfy such Persons as would be Bail for them what the matter and cause of action was for which in this way of proceedings the Defendants never knew untill they came at the return of such Writ or Process to put in good Bail above as it is usually called that is before some Judge of this Court and then received a Declaration And if they did not put in good Bail then such Bail-bonds as were given to the Sheriff for their appearance were forthwith put in suit which mischief being seen and considered of both in this Court and in the Common-Pleas was by the said Parliament remedied by an Act made in the thirteenth year of his now Majesty's Reign cap. 2. at the second Meeting of that Parliament The words of that Act amongst other matters are these For remedy and prevention of which so great growing evils and mischiefs and also for discouraging all frivolous and unjust Suits and causeless arrests for the future Be it enacted by the King 's most excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the authority of the same That from and after the twelfth day of February in the Year of our Lord one thousand six hundred sixty and one No Person or Persons who shall happen to be arrested by any Sheriff Under-sheriff Coroner Steward or Bayliff of any Franchise or Liberty or by any other Officer Minister Under-bayliff or other Person or Persons whatsoever within this Realm having or pretending to have authority or warrant in that behalf by force or colour of any Writ Bill or Process issuing or to be issuing out of his Majesty's said Courts of the King's-Bench and Common-Pleas or either of them in which said Writ Bill or Process the Note the true cause of action is to be expressed particularly certainty and true cause of action is not expressed particularly and for which the Defendant or Defendants in such Writ Bill or Process named is and are bailable by the Statute in that behalf made in the three and twentieth year of the Reign of the late King Henry the Sixth shall be forced or compelled to give Security or to enter into bond with Sureties for the appearances of such Person or Persons so arrested at the day and place in the said Writ Bill or Process specified or contained in any penalty or sum of money exceeding the sum of forty pounds of lawfull money of England to be conditioned for such appearances and that all Sheriffs and other Officers and Ministers aforesaid shall let to bail and deliver out of Prison and from their and every of their custodies respectively all and every Person and Persons whatsoever by them or any of them arrested upon any such Writ Bill or Process wherein the certainty and true cause of action is not particularly expressed upon security in the sum of forty pounds and no more given for appearance of such Person or Persons so arrested unto the said Sheriff or Officer aforesaid according to the said Statute in the said three and twentieth year of the Reign of the said late King Henry the Sixth in that behalf made and provided I have recited this part of the Act in his verbis for that it may be of use to them that have not the Act at large and that it may be seen how expresly and to a tittle it is fulfilled in the proceedings by Original Writ For it hath ever been the constant practice in such proceedings to express the true cause of action particularly in the Original Writ and in every Writ of Capias alias and plur thereupon to arrest and also to what Sum the Plaintiff layeth his damage that so the Defendant may procure Bail accordingly And if it happen as oftentimes it doth that such Defendant either is not arrested or doth not appear upon any of the said Process taken out against him but suffers himself to be so far proceeded against as to the Exigent yet still that he may know what he is sued for there is mention made at large of the express cause of action both in the Writ of Exigent and also in the Proclamation directed to the Sheriff where it is known or supposed the Defendant doth inhabit that so he may take care either by himself or his Attorney to appear thereunto and thereby prevent if he will his being outlawed By all which it appears that
19. the said Merefield entred an Issue wherein John Brewster was Attorney for the Plaintiff and now living and a Clerk to the now cheif Clerk and one Coxe for the Defendant it was in London Non assumpsit inter Hardman and Hayes Trin. Mich. prox the like Hil. 1658. several Issues one that the said Merefield entred for one Peter Naylor Attorney for the Plaintiff and Clerk then to the then and now cheif Clerk as able and knowing a man in Clerkship as any of his time fit to have made a Secondary of and after the Plea a relicta verificatione signed by the then Secondary Trin. 1659. Roll 12. 13. 14. an Issue and two Indentures Mich. prox Roll. 13. 14. 15. three Indentures entred And now we are come to the times of the happy restauration of his now most Sacred Majesty let us see therefore what hath been the practice lately for these twenty years and upwards last past It appears in Mich. 12. Caroli Secundi Rotulo 19. that an Indenture is there by Stone the Filizer entred Paschae 14. Rotulo 18. Sommers Ann. Car. Secundi Filizer of Middlesex enters a special Imparlance for Thomas Jekill Attorney for the Plaintiff and late Secondary of this Court Paschae 21. another Filizer enters the like Hil. 21. 22. another Indenture Paschae 23. Rotulo 16. Judicium in replevin cum retorn habend averia elongat Cap. in Withernam agard Hil. 25. 26. Rotulis 18. 19. defalt in case Scire facias super Vtlagar and an Indenture Trin. 26. Rotulo 19. Paschae 28. Rotulo 19. Hil. 28. 29. three several Indentures in each Term one Mich. 29. Rotulo 19. Nihil dicit in casu Hil. 29. 30. Rotulo 19. an Issue Paschae 30. Rotulo 18. 19. an Issue defalt Hil. 29. 30. Rotulo 19. an Issue In Paschae 30. Rotulo 18. 19. an Issue and defalt Hilary 30. 31. Rotulis 10. 18. 19. another Indenture nihil dicit non assumpsit Mich. 32. Rotulo 17. breve erroris sur Judicium in regno Hiberniae Judicium affirmetur intrat Rotulis 18. 19. two Indentures Paschae 33. Rotulo 19. another Indenture Trin. 33. Rotulis 18 19. several Issues and Judgments Mich. 33. Rotulis 18. 19. 20. two Indentures and a Distring awarded against a Peer Hil. 33 34. Rotulis 12. 13. 14. 15. 16. several Issues and defalts and Rotulis 17 19. two Indentures Paschae 34. Rotulo 18. an Issue Trin. 34. Rotulis 18 19. an Issue and a defalt and in Mich. 34. Rotulis 18 19. the like and in Hil. 34 35. Rotulis 12. 13. 14. 15. 16. 17. 18 19. the like as to Issues and defalts together also with two Indentures And now I do heartily beg the Reader 's pardon that I have tired his patience with so many particular proofs in this nature and truly I would not have done it but have saved my self and him much labour herein but that it lay upon me to make out this matter In which he may remember there are several Appeals of Murther Robery and Mayhm said to be entred which puts me now also in mind of appealing to him and not to him onely but unto all that shall reade this Treatise whether they think the Filizers of this Court have not had a right to enter Issues and other proceedings grounded upon Original Writs if so when where and how did they loose it was it either by Act of Parliament or by any other due course of Law and he that can tell me this erit mihi magnus Apollo And thus much if not too much I hope may suffice to prove that the Filizers have a right to enter Issues brought by Original Writ and other proceedings thereupon on their own Rolls as Filizers Some directions in the way of practice by Sixthly Original Writ in this Court AND first to proceed either to the arrest or to the Outlawry you may remember it hath been said before that this Court proceeds in its practice three several ways that is to say by Original Writ by Bill and by attachment of Privilege and in that by Writ this Court hath not used to proceed in some sort of Actions that is to say Debt Detinue Account and Covenant but in all other personal Actions it doth And as is elsewhere said The Original Writ issueth out of the high-High-court of Chancery to obtain which the Attorney for the Plaintiff must first consider the nature of his Clients cause of action and then draw up a precipe as it is commonly called of the whole matter in the nature of a Count or Declaration and therein he must be sure to set forth the Defendants true Christian Name and Sirname together with the Addition both of his Degree and Mystery as to his Profession and the place where conversant for if his Addition be omitted all the Proceedings are void by the Statute of Additions made in primo Henrici Quinti cap. 5. by which it is ordained and established That in every Original Writ of Actions Personals Appeals and Indictments and in which the Exigent shall be awarded in the names of the Defendants in such Writs Original Appeals and Indictments Additions shall be made of their Estate or Degree or Mystery and of the Towns or Hamlets or Places and Counties of the which they were or be or in which they be or were conversant And if by process upon the said Original Writs Appeals or Indictments in the which the said Additions be omitted any Utlagaries be pronounced that they be void frustrate and holden for none And that before the Utlagaries pronounced the said Writs and Indictments shall be abated by the exception of the Party wherein the same the said Additions be omitted Provided always that though the said Writs of Additions Personals be not according to the Records and Deeds by the surplusage of the Additions aforesaid that for that cause they be not abated And that the Clerks of the Chancery under whose names such Writs shall go forth written shall not leave out or make omission of the said Additions as is aforesaid upon pain to be punished and to make a Fine to the King by the Discretion of the Chancellour These are the very words of the Statute So that you see hereby that debile fundamentum fallit opus which ought to be the Attorny's care to prevent and he must also take care to draw up his Precipe so in substance as he will stand to it for after the Original is sealed there is no altering of it without new sealing it again and if it be in Trespass the form is thus Si A. B. fec c. tunc pon C. D. nuper London vel Middlesex de c. gen de placito quare vi armis Clm. Doum si in London Clm. si in Middl. ipsius A. apud c. fregit Et alia enormia ei intulit ad In Tusgr grave dampnum ipsius
to cause him to appear if he will and if he will not then upon returns of the Exigent an Outlawry goes out against him So that in many actions there are five Writs commonly sealed in this Court in one cause before the appearance of the Defendant and after appearance in each cause a Supersedeas and for non appearance an Outlawry and divers other Writs All which matters duly considered would certainly as much augment the Revenue of the Crown of England as it hath done formerly when this practice by original Writ flourished in this Court Thirdly As to the antiquity of his Office It is evident and will be so to any person that will take the pains to search the Records of this Court in the Reign of Edward the Third that there were then such Officers as Filizers in this Court For that at the bottom of the Plea Rolls of this Court are set their Names as so many several * Or chief Clerks Prothonotaries to such Writs and Issues and other proceedings as they then entred and it is possible to prove it also before that time but this being above 300 Years since may be thought sufficient and for above 200 Years past it appears by the Statute of the tenth year of the Reign of Henry the 6th Cap. 4. and the 18th of the same King Cap. 9. where in both those Statutes the Filizers and Exigenters of this Court are mentioned that there were then such Officers in this Court and to go much farther if it were necessary it is rational to presume that there were such before the Norman Conquest For that my Lord Coke in his Preface to his third Report saith That Writs of Assise and other Original Writs were returnable into the King's Courts before the Conquest and that as Justice Fitzherbert saith in his Preface to his Book called Natura Brevium that seeing they be speaking of such Writs the Rules and Principles of the Science of the Common Law they do manifestly prove that the Common Law of England had been time out of mind of man before the Conquest and was not altered or changed by the Conquerour And therefore certainly if such proceedings then were by original Writs it is no Foreign presumption to believe there were such Officers as Filizers who made out such Writs Also under the name and Office of a Filizer in this Court is comprehended the Exigenter The Clerk of the Supersedeas the Clerk of the Outlawries and the Clerk of the Jurours and therefore it will be necessary to consider all these places apart and distinct the one from the other and to observe what they do in these several Capacities And First As Filizers they have and 1. As Filizers do and of right ought to make out and enter upon all Actions brought by original Writ all Writs and Process whatsoever some whereof are these viz. all Cap. Als. Plur. Testat Cap. Distring in Trespass and trespass on the Case and in every suit qui tam. c. in every Rapt Custod in every trespass contra formam ordinationis in every ejectione firme and such like special Actions every Cap. Als. Plur. in appeal of Murther Robbery and Maihm every Resummons Habeas Corp. Distring in Attaint and Writs of Withernam Second deliverance and retorn habend and venir fac subpoena Distring Jur. and divers other such like Writs They likewise take and enter all appearances general or special wherein good bail is required upon original Writs they enter all general and special Imparlances they make Copies of writs of Attaint and they give Rules ad narrandum ad placitandum ad replicand and the like and enter Nonsuits for want of declaring and these things and the like they do as Filizers Secondly As Exigenters they make 2. As Exigenters out and enter in the actions before mentioned and such like actions all and every Writ or Writs of Exigent and Proclamation Allocat Exigent post Cap. Scir fac sur general ou special pardon le Roy and such like Writs Thirdly As Clerks of the Supersedeas 3. As Clerk of the Supersedeas they make out and enter upon the Exigent roll in the said actions and such like all Writs of Supersedeas quia improvide or otherwise all Writs de non molestando and other such like Writs both as well upon appearance of the Defendant to the Exigent as after that the Defendant is outlawed and either his Body taken by a general Cap. Utlagat or his Lands or Goods by a special Fourthly As Clerk of the Outlawries 4. As Clerk of the Outlawries they make out and enter in the said actions all the said Writs of general and special Cap. Utlagat and deliver them of Record and transcribe such special Capias and Inquisition when returned into the Exchequer and make out likewise the Cap. pro Fine Regis sur capiat and other such like Writs and if such Outlawry be reversed they enter up such reversalls Fifthly As Clerks of the Jurors They 5. As Clerk of the Jurors likewise make out and enter in the said Actions all Distring Jur. or Habeas Corpor and deliver them of Record and as is said before attend in Term-time the grand Jury for the County of Midd. or in whatsoever other County the Court of Kings-Bench shall sit They are Attorneys of this Court as soon as they are admitted Filizers and do practise if they please as Attorneys by Writ or Bill but they cannot enter any thing by Bill on the Prothonotary or chief Clerks rolls but one of his Clerks must enter for them Their Writs and Process are always filed with the Custos Brevium and not with the said Prothonotary or chief Clerks and they do many other things belonging to their said Offices too long here to insert and are therefore here spared because more of this matter may be found in the Copy of the presentment before mentioned placed at the end of this Book In the Court of Common-Pleas the Process to the Outlawry runs through divers Officers or Clerks hands but in this Court it is all in one person the Filizer which is such a sole and absolute Officer and his Office was and is much after the same manner executed as the Prothonotary's Office of Monmouth and there was no more but one such Officer in this Court to all the ends and purposes aforesaid both before and in the time of Henry the 6th nor since in which time the practice by original Writ in this Court was greater than that by Bill Let this suffice by way of Preface to shew what Writs and Process do belong to the Filizers of this Court to make out and enter It is most certain and I make no doubt but that it will be granted me that all the supreme Courts of Common-Law at Westminster through length of time have very much intrenched the one upon the other as might easily be made appear but that being nothing to the matter
in hand shall be passed over and that it is as difficult to reduce their ancient practice into its right and due course as it is to divert the water of Thames from running in its now Chanel but yet certainly it is not so hard a task for any of the said Courts to set to rights the different practice within the same according to its ancient use and Custome and thereby hinder one Officer from intrenching upon another which brings me to the first matter intended to be handled which is as follows THE FILACER'S-OFFICE IN THE Court of King's-Bench That the Practice by original Writ is First of very great antiquity in the said Court FOR the proof whereof it is necessary to observe that heretofore and now at this time also there are three several ways of proceedings in this Court that is to say by original Writ by Bill and by Attachment of privilege The First Grounded upon a Writ issuing out of the high Court of Chancery returnable in this Court The Second Grounded upon the Custome of the Court. The Third Grounded upon the grace and favour of the Court besides divers other proceedings upon Actions removed out of inferiour Courts by Writs of Recordare Certiorari Habeas Corpus and the like into this Court and although my Lord Coke in his Preface to his eighth report saith that all the four supreme Courts at Westminster be all the King's Courts and have been time out of Memory of Man so that no man knoweth which of them is most ancient yet without doubt it may be easily known what was the original practice in this Court for the said Lord Coke treating of this Court in his 4th Institutes Cap. 7. saith that if a Writ be returnable coram Justic nostris apud Westm it shall be returnable in the Common-Pleas but if it be returnable in this Court it must be thus coram nobis ubicunque fuerim in Anglia and takes no notice of any Writ returnable in this Court at a certain place and farther he saith in the same Chapter that in former times some ill disposed Clerks of this Court because they could have no original Writ out of the Chancery for Debt returnable in this Court they would sue out an original Writ in an action of trespass a mere feigned action and so proceed to the Exigent whereas in truth the cause of Action was for Debt and when the Defendant appeared c. all the former proceedings were waved and a Bill filed against the Defendant for Debt This he there saith is an unjust practice in derogation of the dignity and honour of this Court and worthy of severe punishment according to the Statute of Westm the First Cap. 29. when it is found out And now in these times although some Clerks and Attornies of this Court doe not the very self same thing yet they come very near to such irregular practice for that they do very often proceed by original Writ in such actions as they may justly proceed in as far as the Exigent and when the Defendant appears thereunto by Supersedeas then is there a Bill filed or Declaration delivered in Debt or any other action by consent of the Attornies on both sides supposing the Defendant to be in Custod Marescalli c. as if he had been arrested by a Bill of Middles or Latitat that supposes a Bill in this Court and so waive the whole former proceedings by original Writ and proceed on to Judgment by Bill a matter certainly worthy to be taken notice of by this Court as an abuse put upon the ancient proceedings by original Writ therein and not onely against a known rule or maxim in Law expresly Quod omnis brevis Judicialis sequitur suum Originale but also may prove very prejudicial to the Plaintiffs in such actions if the same should happen to be taken notice of there being nothing in Court as a foundation to warrant such proceedings by Bill and so all as it were coram non Judice And it seems that that great and learned Lawyer looked upon all Writs whatsoever returnable in this Court to be returnable coram nobis that is coram Domino Rege ubicunque tunc fuerit in Angl. this Court being moveable with the King's Person and not local as the Common-Pleas is and therefore called the Kings-Bench and that this is the natural and genuine style of this Court may be gathered from hence that several of the former Kings of England have sate personally in this Court as the said Lord Coke saith in the same Chapter and as Speed in his Chronicle fol. 595. observes that Henry the Third sate in person with his Justiciars upon the Bench at the Arraignment of Peter de Rivallis and others and that he gave Sentence against him and sent him to the Tower And also Sir Richard Baker in his Chronicle fol. 205. saith that Edward the Fourth sate in Michaelmas-Term in the Second year of his Reign three days together publickly with his Judges in this Court to acquaint himself with the orders of the Court and to observe what needed reformation in it either at Bench or at Bar. The former of these Observations together with some other matters in the like nature are reported by Mr Serjeant Rolls in the first part of his abridgment fol. 535. And I believe it to be the hearty desire and affectionate wish of every Loyal Subject especially of the long Robe that his now Majesty would be graciously pleased once in his Reign at the least to honour this his peculiar Court with his most glorious presence a sight certainly that would be in its self so transcendently excellent that it would parallel if not exceed that of his Coronation But to come more close to the matter proposed It appears as is said before if the most ancient Records may not possibly be by some against usual practice as they have lately been esteemed the weakest evidence that in the beginning of the Reign of Henry the Sixth which is now above two Hundred and Twenty years since and are the oldest Rolls now remaining in the upper Treasury of this Court and long before that time also by Records in other places and from that time untill about the beginning of Queen Elizabeth's Reign The proceedings in this Court were more by Original Writ than by Bill The several Terms and Number Rolls and the years in which they are being too numerous here to insert and would have made this Book larger than intended and therefore it is left to the Judicious Reader if he pleases for his own satisfaction at his leasure to search the same Records which are very well worthy the labour and trouble of any that desire to be acquainted with antiquity of this nature And this may be sufficient to shew that the Practice by original Writ although now much decreased from what it was at first hath been very anciently used in this Court That it prevents in a great
the proceedings in this Court by Original Writ heretofore were and now are such as are altogether agreeable to the late Statute so made as aforesaid for setting out the particular cause of action in the Writ That the Filizers of the said Court have Fifthly not onely made and entred on record Writs and Process by original but also entred Declarations Imparlances Issues Judgments and divers other proceedings thereupon and also have inrolled Indentures and all this upon their Filizers Rolls IF as is said before Records themselves will not with some be looked upon as they have lately been a disputable evidence especially when very ancient it is not to be doubted but that this assertion may be also very easily proved and why they should be thought the rather to be so because of their antiquity no more reason can be given for it that I know of than that an Act of Parliament now in force and unrepealed made two hundred years since should have less power to command obedience to it than one made but twenty years since nay certainly the antiquity of any proof should make it the better And should you here have an account as it is possible to be done but with great trouble of the several Entries that have been made by the Filizers of this Court upon their own Rolls for so they are called for distinction sake onely to differ them from the Prothonotary or chief Clerks Rolls for most truly and properly all the Rolls of this Court are the King's Rolls or Rolls of the King's-Bench and that for the space of two hundred years and upwards omitting the times before that it would but tire your patience and swell this Volume to be ten times as big as ever it was intended to be But as it is easie Pede Herculis to guess at the magnitude of his whole body so by some few that shall here be set down as plainly and as truly as they may be that they may be repaired unto if occasion you may guess at the multitude that might have been inserted and therefore some few in each King and Queen's Reign within the time aforesaid may be sufficient in all reason to prove this point And now to begin with the Reign of Henry the Sixth being as is said before the oldest Rolls that are in the upper Treasury of this Court and so to bring it down according to the search I have made to these times It appears in Paschae primo ejusdem Regis In whose An. H. 6. time the Filizers Rolls were always filed first after the Rotulo primo which hath usually been a richly guilded Roll with the King's Picture drawn in the first Letter of the word Placita sitting as it were upon the Bench in Court and it sets forth the Person before whom the place were and the time when the pleadings were held To all which the chief Justice his name is put as a Witness and then the Filizer's name that provided that Roll at the bottom of it And this ought to be filed in every Term it being a great ornament to the Rolls themselves and 't is a great neglect some-where to be charged that so many Rolls for some years past have been made up without it Nay all the other Rolls following are nonsensically titled if such a Roll be not filed before them For then follow the other Filizer's Rolls and then after them the Prothonotary or chief Clerks Rolls all with this Title upon them Adhuc de Termino c. T. c. whereas if this Rotulo primo be not filed there is no Term at all appears unto which the Adhuc can have any relation And somerimes in that King's Reign they have been filed promiscuously one among another but still the Filizer's Rolls have been filed first But to return to the proof omitting the entring of Process or Writs upon originals for that is allowed to be their due of all hands It appears in that Term omitting also for brevity sake the names of the Plaintiffs and Defendants and their Attornies and the nature of the Action in rotulis 6. 9. 23. 44. 45. 58. 65. that several Filizers of several Counties entred several Issues and their names are upon the bottom of each Roll and in Mich. 2. ejusdem the like in rotulis 10. 14. 16. 18. And in the Reign of Edward the Fourth in Mich. 4. ejusdem An. Ed. 4. Regis in Rotulis 18. 57. 60. 68. the like Entries and in Paschae 5. ejusdem Regis the Rolls not being numbred but the Filizers names at the bottom there are several Issues entred and as for the Reign of Edward the Fifth it being not An. Ed. 5. three months long and the Reign of Richard the Third not three years long An. R. 3. and very troublesome they were in this search wholly omitted In Hilary 2 Henrici 7. Rolls not numbred several An. H. 7. An. H. 8. Issues entred Mich. 3 Henrici 8. rotulis 43. 49. 54. the like both as to Issues and Judgments by nichil dicit in Paschae 23. 24. ejusdem Regis the like in both Paschae 24. 25. ejusdem and Paschae 25. 26. and Paschae 26. 27. and Paschae 27. 28. the like in all these Terms Rolls not numbred but are to be found filed at the beginning of each Term and in Hilary 36. ejusdem Regis rotulo 14. is the Entry of an Outlawry in an Appeal of Murther and Paschae 37. an Issue and Judgment after a Verdict And in Hilary 1 2 of Edward the Sixth rotulis An. Ed. 6. 2. 3. 12. aliis rotulis the like Issues in Trin. 7. ejusdem rotulis 2. 8. 11. the like usque rotulum 20. In Trin. 1 Mariae rot 10. 12. 13. 15. and divers An. Mariae other Rolls the like In Paschae 1. 2. ejusdem several Issues Trin. prox the like Mich. prox rot 6. 7. 8. and other Rolls not numbred the like and Judgments Hilary 1. 2. the like in rotulis 13. 16. and in Mich. the 26 and 27 of Queen Elizabeth rotulis An. Elizab. 1. 2. 4. 16. 18. 19. and others not numbred there are two Appeals of Murther and one of Robbery and several Issues and special Pleadings In Mich. 36. 37. the like as to Issues In Paschae 44. rotulo 10. a Quare Impedit between the Queen and the Bishop of Hereford And in Paschae 5 Jacobi Roll not numbred there is An. Jacobi an Indenture entred by Howard a Filizer upon his own Roll in Trin. 7. an Issue the Roll not numbred in Hil. 9. Mich. 12. Hil. 12. Trin. 13. Hil. 13. the like Issues and Judgments by Nil dicit and Non sum informat But all these Kings and Queens Reigns have not been gradually searched in every Year and Term for it would have been too great a labour but onely some few to shew that there were no Times in which the Filizers did discontinue entring
must needs be notorious in what County they arise the Attorney knowingly laying them out of their proper Counties unless in the cases before expressed or for such other causes as shall be allowed by the Judges of the Court and duely made to be true to be severely punished That although the Declaration be delivered seven days before the last day of the next preceding Term or after yet before Plea upon Oath made the visne may be changed upon motion in the said Transitory actions the next Term after and the Defendant to plead to the new action as he should have done in the other without delay That the visne may be changed upon Oath before though the Defendant come in by Exigent And in Styles his practical Register fol. 533. it is said that in Transitory actions the Plaintiff after the Essoin-day of the subsequent Term after the appearance shall not alter his own visne though he would pay Costs or give Imparlance which seems to imply that he may do it the same Term of the appearance with leave of the Court upon motion as aforesaid But this being a discretionary act of the Court little else shall be said but left to the pleasure of the Judges of this Court who never do it without they see some necessary reason for it How to proceed so as to have a special Capias Utlagat together with the Inquisition thereupon taken sent into the Exchequer and to get a Lease from the King of the Defendants Lands THe way of this proceeding in this Court is much different from that in the Court of Common-Pleas For there the Attorney for the Plaintiff bringing in the special Capias Vtlagat with the Inquisition thereupon taken annexed into the Outlawry Office of that Court and delivering thereof to the Clerk of the Outlawries there the said Clerk forthwith maketh a Transcript of the Writ Return and Inquisition in a large Exemplifying Character and setteth his own name to the bottom of it and then he delivereth it to the Attorney for the Plaintiff who carrieth it into the Exchequer But in this Court the practice is and long hath been to go a farther way about and what the reason is for it is not well known but conjectured to be either that of the Grandeur of this Court as is said before or else to punish the Defendant the more for adventuring to run so high a contempt against the King his Crown and Dignity as not to appear in this Court after so many several Process against him but to suffer himself to be Outlawed and this to be by a pecuniary punishment arising by the charges of getting a Lease of his Lands from the King which must all come out of his Estate at the last but not to detain you any longer the way is thus The Attorney for the Plaintiff must bring the special Capias Vtlagat and Inquisition annexed into that Filizer's Office who made it out for he as is said before is Clerk of the Outlawries as well as Filizer and he will make you a Transcript of the Writ Return and Inquisition as is before said the Clerk of the Outlawries doth in the Common-Pleas Then the said Attorney taketh back the same together with the said Transcript and then fileth the Writ and Inquisition with the Custos brevium of this Court and then goeth to the Cursitor of the County where the Lands lie mentioned in the said Inquisition and he maketh him a Writ of Certiorari to certify the said Writ Return and Inquisition so filed as aforesaid into the high Court of Chancery which Certiorari he carrieth to the said Custos brevium who alloweth the same with the Lord Cheif Justice of this Court and then the Attorney delivereth the said Transcript to the Custos brevium who affixeth it to the Certiorari and then the Custos brevium sealeth up the same and delivereth it to the Attorney under Seal who carrieth it forthwith into the Petty-Bag-Office belonging to the said high Court of Chancery where it is filed of Record Out of which Office the same is sent by a Writ of Mittimus into the Court of Exchequer into the King's Remembrancers-Office there where it is likewise filed of Record after which the said Attorney for the Plaintiff retaineth one of the Attornies of that Office who will prosecute the matter so in that Court as to gain a Lease from the King to be granted to the Plaintiff who shall thereby hold the Lands demised for the Term therein mentioned that is to say for so long time as the same shall remain in the King's hands And if after the Outlawry shall be pardoned or reversed by due course of Law and the Defendant thereby restored to all that he hath lost by that Outlawry then the Attorney for the Defendant applying himself to one of the said Attornies of the King's Remembrancer's Office aforesaid and making the same appear he will get the King's Hands taken off the Estate either by sueing out a Writ of Amoveas Manus or by Petition or motion in Court or otherwise according to the custome used in that Court Somewhat concerning the drawing of Declarations by Original Writ IT hath been formerly the practice both of this Court and the Court of Common-Pleas to repeat the cause of Action twice in the Declaration that is to say to the Writ and to the Count as may appear both by Rastal's and Coke's Books of Entries but it is now in some sort of Actions left off in the Common-Pleas and in this Court also by the former orders mentioned among others it was ordered For avoiding of long and unnecessary repetitions of the Original Writ in Actions upon the Case and Personal Actions upon Penal Statutes That Declarations in Actions of Trespass upon the Case or personal Actions of any general Statute namely Huy and Cry Monopolies or for a Suit in the Admiralty and such like other than Debt repeat not the Original Writ but onely the nature of the Action viz. A. B. was attached to answer C. D. in a Plea of Trespass upon the Case or in a Plea of Trespass and Contempt against the form of the Statute and that for the avoiding of the Common Bar and new Assignment the Declaration upon an Original Quare clausum fregit may mention the place certainly and so prevent the use and necessity of it But by these Orders it doth not appear none but long Actions being therein mentioned that Trespass and Trespass and Assault and Trespass and Ejectment being very short Declarations are included therein but left to be declared in as formerly both as to the Writ and Count and so to be laid twice as heretofore hath been used in this Court The manner of removing Actions or Plaints out of Inferiour Courts into this Court and after that how to proceed in them AS to removing of Causes by Writs of Errour Certior Habeas Corpus or the like I shall pass them over as being matters very
well known by most Practisers in this Court and shall onely say somewhat of removing Plaints out of such Inferiour Courts as County Courts or Sheriffs Courts and Court Barons or Manour Courts but more especially of County Courts and in them touching Plaints in Replevin there entred and sued without Writ out of the Chancery as it is said in Fitz. Nat. brevium fol. 170. if the Plaintiff or Defendant will remove such Plaints he ought to sue a Writ of Recordare out of the Chancery directed unto the Sheriff of that County in whose Court the Plaint is entred vide the Writ it self there at large which I here for brevity omit whereby it appeareth that the Plaintiff may remove such Plaint by such Writ of Recordare without any cause shewn in the Writ but the Defendant cannot without shewing cause for it in the Writ And the like he must doe in a Writ of Pone which removes such Plaints if such Replevin be sued by Writ out of the Chancery and both these Writs may be returnable in this Court and in the Natura brevium aforesaid you may find several Causes that may be inserted on the behalf of the Defendant and when such Cause or Plaint in Replevin is removed either by the Plaintiff or Defendant for in Replevin they are as it were both Plaintiffs in this Court the Defendant must enter his appearance with the Filizer of that County out of which the Plaint is removed and give a rule with him for the Plaintiff to declare and if the Plaintiff doth not declare by the time limitted in that rule against the Defendant or if he do declare and the Defendant avoweth or maketh Cognizance and upon the Issue tried or by defalt in the Plaintiff the Judgment be for the Defendant or Avowant then the Attorney for such Defendant may have in such case from the said Filizer a Writ of Return habend and Writ of Enquiry for damages and upon the Sheriffs return of this Writ quod averia elongat then the said Filizer will make a Capias in Withernam to take other Cattle of the Plaintiff's and if the Sheriff upon that doth return that the Plaintiff hath no Cattle that he can take in Withernam then the Filizer will make you a Capias against the Plaintiff's Body and so proceed to Outlawry And if the Plaintiff do declare that the Defendant yet hath and doth detein the Cattle c. and the Defendant appears and afterwards makes defalt the Plaintiff shall have Judgment to recover all in damages as well the value of the Cattle as his damages for taking of them and his Costs and to that end the Attorney for the Plaintiff may have a Writ of Enquiry of damages from the said Filizer the same proceedings in case it be in a Replevin for any dead Chattells c. And if a Replevin be sued by Plaint in the Court of any other Lord than in the County Court before the Sheriff as in the Court Barons or Manour Courts there it shall be also removed by a Writ of Accedas ad Cur. and the proceedings therein the same as before is said And if the Sheriff in any case return a tarde there may be an alias and pluries had and if a Replevin be within any Liberty or Franchâ—se and the Sheriff return upon the Writ of Replevin if it be by Writ that he hath commanded the Bayliff of the Franchise who hath given him no answer or that the Bayliff will make no deliverance then the Plaintiff may have a Non omittas to the Sheriff commanding him to enter into the said Liberty or Franchise and make the return and if the Sheriff doe it not then the Plaintiff may have an alias and plur non omittas and so a plur ad infinitum c. But if the Sheriff do not return the plur replevin abovementioned then the Plaintiff may have an Attachment against the Sheriff directed to the Coroners of the said County Vide the Statute de Ann. 17 Car. Secundi nunc Regis c. Cap. 7. made for a more speedy and effectual proceeding upon Distresses and Avowries for Rents in which you will find some former proceedings in Replevin much altered by that Statute Some Reasons impartially offered to shew how it hath come to pass that the Practice in this Court by Original Writ hath decreased and that by Bill increased and what hath occasioned some Entries of Issues and other proceedings to be made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls THE first and greatest cause or reason as is imagined of the increase of the one and the decrease of the other hath been and now is from the setled residence of the Kings of England at their Palace of Westminster in the County of Middlesex for in that County where they have resided it hath always heretofore been used in such Actions as were not proceeded in by Original Writ to take out a Bill or Precept rather and more properly directed to the Sheriff of that County to take the Defendant to bring him before the King at a certain day after a certain Return in the Term and then that Office of the Bills of Middlesex was an Office of great profit although but small Fees belonging to it by reason of the great number of them that were then taken out and upon a non est inventus returned there went out a Testatum which hath since that time gained the name of a Latitat into any other Foreign English County and this was grounded upon a Plaint brought before the King himself at Westminster and that it was so heretofore may appear by several Files of them now remaining in the former upper Treasury belonging to this Court a Copy of such Plaint and Precept I shall here set down as followeth viz. Philippus Byrd queritur de Johanne Middles ss Bateman de eo quod ipse decimo die Junii Annis Regnorum Domini Philippi Dominae Mariae Regis Reginae nunc primo The Plaint secundo vi armis videlicet gladiis c. Clausum ipsius Philippi apud Hendon in Com. predict fregit intravit Et alia enormia ei intulit ad dampnum ipsius Philippi Centum Solidorum contra pacem dicti Domini Regis dictae Dominae Reginae nunc c. Pleg de pros Johannes Doo Richardus Roo On the back of which Bill or Plaint it is thus written Ca ' r. Jovis post 18. sancti Martini Precept est Vic. quod attach Johannem Middles ss The Precept Bateman Ita quod sit coram Domino Rege Domina Regina apud Westm die Jovis prox post 18. sancti Martini ad respondend Philippo Byrd de placito transgr Et habeas ibi tunc hoc precept per. Bill Coverd On the back of which Precept it is thus returned Def. infra nominat nichil habet in balliva nostra per quod possit attach Respons Thomae Leigh Johannis
Machell Vic. Afterwards the Latitat followed as now it is called but then rather styled a Testatum into any other County and I find it differs not at all from the now present Latitat but onely in a few words in the latter part of this Sentence following and although few yet very remarkable Super quo in Cur. nostra coram nobis testat existit quod pred A. B. latitat discurrit in Com. tuo mala quam plurima ibidem perpetrand as may appear by the Files of Latitat's there remaining by which you see that both the Plaint and Precept thereupon do suggest a tort or wrong by a Trespass done to the Plaintiff although possibly that was not the true cause of Action and afterwards suggesting in the Latitat a malefeasance by the Defendant perpetrated in another County and these Plaints and Precepts thereupon were so numerous then and the advantage of receiving and filing of them of so great moment that they have been formerly and are now likewise always excepted out of the grant to the Custos brevium of this Court by the Lord Chief Justice thereof as reserved to himself amongst other things therein excepted in these words except factur Record de Nisi prius in Com. Middlesex Transcript certification super brev errorum reception filation de lez Queriturs attachiament in eadem Cur. conservat Record de Attinct cum Feod ad inde pertinen ' as may appear by several such grants now remaining upon Record in this Court and then always such Bill or Precept went out first into that County of Middlesex where the King was then resident to take the Defendant if he might be found therein to answer the Plaintiff in such Plaint before there went a Testatum into any other County and that which was then really done as to the taking out of such Bill or Precept of Middlesex is now onely suggested in every Latitat So that when former Kings at any time have adjourned the Terms to any remote place in any other County upon any necessitous occasion as the Plague or the like as they have often done there hath always been a Bill or Precept taken out in that County to arrest any Defendant if within that County and if not then one always suggested in any Testatum or Latitat into another County and so it was no doubt when the Term was adjourned to Reading in Berkshire in the first year of the Reign of Charles the First and so it was likewise to my own knowledge when the Term of Saint Michael Anno Dom. 1665. was adjourned by our now Sovereign Lord the King unto Oxford by reason of the great Plague that then was raging both in the Cities of London and Westminster and the Suburbs thereof For then there was a Bill or Precept of Oxford to take any Defendant there Secondly Another reason may be drawn from the constant practice and course of this Court for many years as is elsewhere said to suppose every Defendant that is sued by Bill in this Court to be in Custod Mareschalli of this Court who really is not whereby to intitle the Court to a jurisdiction of the Cause and whereas the proceedings by Original Writ are by Capias Pone or Distring and the like in order to make the Defendant appear before the King in this Court the proceedings by Bill suppose him to have appeared and that he is in actual custody of the Marshall of the Marshalsey of this Court which if every such Defendant so were the now Prison of the said Marshall would not contain them no not if it were ten times as big as it is Thirdly Another reason may be this because sometimes it happens that the Attornies for the Plaintiffs have not had sufficient instructions from their Clients how to draw their Precipes to the Cursitor not knowing the true cause of Action and therefore for want of that have taken out a Latitat de placito transgr upon which the Plaintiff might have declared formerly in any Action untill of late as is before said it was enacted that a Defendant should not be held to bail except the true cause of Action were particularly expressed in the Writ since which time there is inserted in the Latitat not onely ad respondend the Plaintiff de placito transgr but also ac etiam billae ipsius Quer. versus ipsum Def. pro Centum libris de debito secundum consuetud Cur. nostrae coram nobis exhibend Or thus pro non performation promiss assumption ipsius Defenden ad dampnum ipsius Quer. Centum Librar secundum consuetud c. and so to vary in the ac etiam according to the nature of the Action and this being found formerly and also now at this day likewise to be a more easie and quick way to arrest the Defendant because it requires not so full a setting forth of the cause of Action in the Writ of Latitat as in Writ of Capias to arrest by Original it hath gained ground in this Court And as to that other matter how it hath come to pass that some Entries of Issues and other Proceedings have been made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls and this since the practice hath been so much by Bill the reason of it may be this FOR that the Clerks to the former chief Clerks of this Court for many years past have been permitted to practise as Attornies who very anciently as is conceived did not For the Reader is desired to take notice as is elsewhere before said that there are three sorts of Persons that now have privilege allowed them in this Court as Practisers That is to say First The Filizers of this Court styled as before Clerks of our Sovereign Lord the King assigned to inroll Pleas c. that is to say by Original Writ onely they made out all Process thereupon and entred them and all Issues joined thereupon and practised as Attornies as the Presentment hereafter mentioned sets forth Secondly The Clerks of the Office or Clerks to the chief Clerk of our Sovereign Lord the King assigned to enroll Pleas c. that is to say by Bill onely and these Clerks had Seats in the Ancient King's-Bench Office in the Temple which was burnt in the late dreadfull Fire of London The said Office it self was of so great and large an extent and the Seats so many in it that it looked more like a Church than an Office and incited Strangers to offer up their Devotions there when at first they came into it it was as long taking in some small rooms at each end of it which served for the Secondary for the Clerk of the Rules for the Clerk of the Declarations and the Clerk of the Doggets as Westminster Hall is broad which saith Speed in his Chronicle fol. 446. Sect. 31. is 74 foot of Assise with a proportionable breadth containing from end to end four rows of
aforesaid Salop. Bazil Hearne at his House in Basinghall Street Somers Robert Randall at Mr. Abbington's in Coleman Street Southamp Francis Caplyn at his House in Wineoffice Court in Fleetstreet Staff Michael Martyn Suffolk James Fuller aforesaid Surrey John Trye aforesaid Sussex Richard Aylwin War James Fuller aforesaid Westmorl John Hinde at the Horns in Bell Yard Wigorn.  Wilts Samuel Porter in Star Court in Friday Street Civ Cant.  C. Cov.  C. Bristol John Ayres at Mr. Philip's House in Wandall Court in Blackfryers C. Ebor.  C. Exon.  C. Glouc. Henry Ewen C. Lincoln  C. Litchf  C. Norw  C. Wigorn.  Vil. Not. William Bennet V. Kingst super Hul. William Osborne V. South Francis Caplyn aforesaid V. Pool  V. nov Cast super Tin  And where it happens that there is no Filizer any other of the above named Filizers may make out the Process and the Teste of the chief Justice is sufficient although without any Filizer's name to the same and such Filizer may also doe and perform all other matters whatsoever subsequent or belonging thereunto that so a failure of Justice in the proceedings may be prevented And when any change shall happen in any of the aforesaid Filizers by death or otherwise or any admitted into the vacant places it may be known of the Keeper of the Sign of the Latitats in this Court who keepeth a Book of the Names of the Filizers Clerks of the Office and Attornies at large of the said Court and the time when they were admitted FINIS THE TABLE THAT the practice by Original Writ is of very great antiquity in the Court of King's-Bench Page 1. That it prevents in a great measure the delay of Execution after Judgment had and obtained 6. That against some sort of Persons and in some sort of Actions there is no other way to proceed in the said Court but by Original Writ 9. That it is most agreeable to the Statute lately made for setting forth the cause of Action in the Writ 13. That the Filizers of the said Court have not onely made and entred on Record Writs and Process by Original but also entred Declarations Imparlances Issues Judgments and divers other proceedings thereupon and also have inrolled Indentures and all this upon their Filizers Rolls 19. Some directions in the way of practice by Original Writ in this Court 55. The King's Majesty's Fines upon Original Writs 59. Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the Reversal of the Outlawry 67. How to reverse an Outlawry by Writ of Errour 74. How to proceed to the Outlawry after judgment 77. Somewhat concerning Imparlances upon Suits brought by Original Writ 79. How to plead an Outlawry either in Abatement or Bar of any Action 84. Where Suits by Original Writ ought to be laid and when the Visne may be altered 86. How to proceed so as to have a special Capias utlagat ' together with the Inquisition thereupon taken sent into the Exchequer and to get a Lease from the King of the Defendant's Lands 88. Somewhat concerning the drawing of Declarations by Original Writ 91. The manner of removing Actions or Plaints out of inferiour Courts into this Court and after that how to proceed in them 93. Some reasons impartially offered to shew how it hath come to pass that the practice in this Court by Original Writ hath decreased and that by Bill increased and what hath occasioned some Entries of Issues and other proceedings to be made as well on the chief Clerk's Rolls as on the Filizer's Rolls 97. Some Precedents of frequent use both of Writs and the Entries thereupon and also Declarations Imparlances Issues Judgments and Defaults and other proceedings in Actions brought by Original Writ and entred by the Filizers 111. Le Capias Alias Plur ' Exigent 112. Le Foreign Proclamation 113. Le Allocatus 114. Le Supersedeas quia improvide ibid. Le general Cap ' utlagat ' 115. Le special Cap ' utlagat ' ibid. Intratio separal ' process de Cap ' Alias Plur ' Exig ' Proclam ' utlagaria reversat ' superinde 116. Le special ' Bail sur reversal del utlagaria 121. Le special ' Bail sur Arrest ibid. Supersedeas sur ' reversal del utlagar ' pro defectu Proclam ' ubi bona catalla Def. capt ' fuer ' per Breve de special Cap ' utlagat ' devant le reversal 122. Aliter ex assensu Attorn ' pro Quer ' sur ' Def. imposition ' Ball ' coram un ' Justic ' Cur ' 123. Breve de Cap ' ad satisfaciend ' Exigent superinde 124. Exigent post Cap ' puis un recovery pro dampnis in Commun ' Banco affirmetur in Cur ' hic sur ' brief de Errour 125. Breve de Pone sur ' un ' brief de Recordare ibid. Intratio inde 126. Breve de Distring ' super pone praedict ibid. Distring ' envers un ' Peer 127. Testat ' Distring ' sur ' nichil retorn ' envers un ' Peer ibid. Testat ' Pone sur ' tiel retorn ' envers un ' Peer ibid. Distring ' versus un ' Corporation vel Hundred 128. Un ' special Cap ' ad arrest ' ibid. Intratio inde ibid. Testat ' Cap ' superinde 129. Intratio inde ibid. Supersedeas in abatement del brief de Exigent quia Def. in ill ' nominat ' Miles quando fuit Miles Baronettus 130. Breve de Exigi fac ' post un ' Pone Cap ' retorn ' fuer ' Def. in contempt ' Dom ' Regis 131. Breve de Certiorar ' Vic' L. pro eo quod Exigi fac ' casualit ' perdit ' est super quo Def. fuit retorn ' utlagat ' 132. Distring ' Proclam ' en un ' brief envers un ' Corporation 133. Intratio de Imparlance in ascun action per original ibid. Scire fac ' sur ' pardon utlagar ' per Statut ' 134. Retorn ' superinde 135. Retorn ' habend ' ubi Quer ' fec ' defalt ' ibid. Intratio inde 136. Retorn ' habend ' alio modo ubi Quer ' fecit defalt ' breve de inquir ' de dampnis 137. Simile inquir ' de reddit ' aretro valor ' Averior ' capt ' post suggestion ' Def. in natur ' Cognition pro quodam annual ' reddit secundum Statut ' 138. Breve de secunda deliberatione 139. Non omittas 140. Intratio inde 141. Distring ' ball ' super cepi Corpus ibid. Intratio inde 142. Intratio de languid ' in Prisona super un ' Capias 143. Habeas Corpus licet languidus ibid. Intratio de amerciament ' Vic' pro non retornand ' breve de Cap ' Alias aut Plur ' c. 144. Distring ' nuper Vic' ibid. Intratio inde 145. Non pros ' pro defectu Nar ' post comparentiam super Exigi fac ' 146. Breve de Cap ' in Withernam
Issues and other Entries on their own Rolls as hath been unjustly reported of them But now because the later Precedents may be thought the best proof the former being looked upon by some persons it may be as obsolete by reason of their antiquity these Years following of King James have been carefully and with great labour and pains searched in order year by year It appears then in Paschae 15. ejusdem Regis one Wythe a Filizer enters an Appeal of Murther and in Trin. 15. a Judgment by defalt and a Writ of Enquiry of Damages awarded Mich. 16. one Shaw a Filizer enters an Issue wherein one Edmund Dennye who was one of the Clerks to the then chief Clerk was Attorney for the Plaintiff and afterwards was one of the Jury of Attornies that made the Presentment of the Fees at the end of this Book And in that Term also Walker and Williamson two Filizers do enter two appeals of Murther In Hilary 16. the reversal of an Outlawry pro defectu Proclamationis and divers Issues Trin. 17. the like reversal of an Outlawry and divers Issues one of them in Replevin and Judgment thereupon by Percival a Filizer and several Judgments by defalt In one of which one Tetlow was Attorney for the Plaintiff and in another one Tippet and in others one Harborn and one Bunce were Attornies for the Defendants all which four last Attornies were four of them also that made the Presentment hereafter mentioned In Mich. 17. nil dic in cas In Hilary 17. Scire facias and Judgment in Replevin and several Issues In Paschae 18. Special Plea and Issue thereupon and nil dicit in Replevin upon a Writ of Second deliverance Trin. 18. several Issues and a Defalt Mich. 18. three Defalts Hil. 18. two Issues and two Defalts Trin. 19. the like Hil. 19. two nichil dicits and Writs of Enquiry awarded Paschae 20. Special Plea and Demurrer Trin. 20. several Issues Mich. prox the like and Hil. prox one Dodd a Filizer enters a writ of Right and other Filizers several other Entries of Issues and Judgments in Trin. 21. Hil. prox and Trin. 22. the like Mich. 22. one Seaman a Filizer enters the Reversal of an Outlawry for the insufficient return of an Exigent and to winde up this King's Reign in Hil. prox Edgar Filizer of London so soon as he was Sworn enters an Issue wherein one William Jumper was Attorney for the Plaintiff who was also one of those Attornies that made the said presentment And now we are come to the Reign of Charles the First of ever blessed Memory and because some as I said before look upon the latest precedents to be the best evidence I beg leave to be more prolix in this King's Reign than in the former for these were all searched likewise gradually Some Terms having no such Entries I have here omitted In Trin. 2. Mich. prox ejusdem Regis An. Car. Primi there are divers Issues and Defalts entered and also the Reversal of an Outlawry In Paschae 3. the said Edgar enters four Issues in London Hil. 3. Paschae 4. the like by other Filizers Trin. prox several Issues and Judgments and among them the said Edgar enters an Issue by Bill after an Imparlance Mich. 4. the like Issues and Judgments by others and one Jumper aforesaid Att. pro Quer. in one of them nay in Hilary 4. the said Edgar enters other two Issues by Bill a thing which the now Filizers of this Court do not in the least pretend unto but it seems he thought it was as lawfull and as much his right to enter by Bill as it was for the then cheif Clerk or Prothonotary to enter by Writ and was then an occasion of very great difference between that Filizer on the behalf of all the other Filizers and the then cheif Clerk or Prothonotary who had entred by Writ And upon good ground it is believed that the presentment of the Fees hereafter mentioned did settle the matter between them being as is supposed procured upon the Petition of the then Filizers to his then Majesty reciting the former narrative who was thereupon pleased in a short time after to grant his Commission to inspect into all the Fees of all the Offices both in this Court and all other his Courts of Common-Law in England and Wales and to settle the same but after what manner the said difference was setled between the then Filizers and the then cheif Clerk is not known but it seems it was not so setled as to take away the right of the Filizers to enter Issues on their own Rolls as by some hath been most falsely affirmed For that they did still continue on to enter by Writ but not by Bill as may appear by Paschae 5. Issue in Ejectment verdict and Judgment entred by Fisher Filizer of Dorset-shire in Trin. 5. the aforesaid Edgar entred an Issue in London and Clerk Filizer of Norf. entred two Issues Hil. 5. Gasnold Filizer of Suf. entred a cause against two Defendants wherein the one pleaded and the other suffered Judgment Paschae 6. nil dic in Ejectment by the said Edgar and an Issue wherein John Woodward a very able Clerk of the then cheif Clerk was Attorney for the Plaintiff one very well known to some of that name now in this Court and the said Clerk was the Filizer this I mention more at large and many other I might to shew that the Filizer did not enter it as he was Attorney in the cause himself but for another Attorney but if he had I think it had argued no less a right in himself to enter than if he had entred it for another Attorney and a multitude of those former Entries I have already mentioned as well as those I am yet to set down are made for other persons Attornies for the Plaintiffs as may appear by the Records themselves In Trin. 6. divers Issues and Judgments and Scir fac sur Judic in replevin Mich. 6. Trin. 7. Mich. 7. the like wherein Merefield the then Filizer of London enters an Issue for one Creme one of the Clerks of the then cheif Clerk Plaintiff who did not certainly enter it with the Filizer to have his privilege allowed him for that he might without doubt have had if he had entred it with his own Master the cheif Clerk but questionless he did enter it with the Filizer for that he thought in his Judgment he ought so to do the said Filizer having made out all the former process and also in that Term the Filizer of Lincoln enters an Issue upon a special Plea Verdict and Judgment Hilary 7. the like by Merefield and others Paschae 8. an Issue Defalt and a Demurrer in three several causes Trin. Mich. and Hil. prox the like Paschae 9. the said Merefield enters an Issue wherein Hatton Berners was Attorney for the Plaintiff and Clerk to the cheif Clerk and another wherein the aforesaid Jumper is Attorney for the Plaintiff who
with the Custos brevium if it be not in Middlesex if so then with the Lord Cheif Justice and some time before the day in Banck which is always the Essoin-day of the next Term after any Assises if the action lie in the Country or if in London or Middlesex then before the next Essoin-day after the Tryall he bringeth the Issue to the said Filizer to be entred upon his Rolls and in the aforesaid Venire facias and Distring there need not to be 15 days as in other process before Issue joyned between the Teste and return of each Writ and this appears by the Statute before mentioned made in the 13th year of his now Majestye's Reign The words of which Statute amongst other matters are these And whereas very many Suits commenced by Original Writs have been protracted and long delayed from Judgment and Execution by reason of the necessity of having fifteen days at the least between the days of the Teste and the days of Return of Writs now used in personal Actions and also in Actions of Ejectione firmoe for Lands and Tenements For remedy thereof and for the more easie expediting Trials and the better and more speedy executing of Judgments for the time to come Be it farther enacted by the Authority aforesaid That in all Actions of Debt and all other personal Actions whatsoever and also in all Actions of Ejectione firmoe for Lands or Tenements now depending or which at any time hereafter shall be depending by Original Writ in either of his Majesty's Courts aforesaid after This Court of King's-Bench being before mentioned in this Statute any Issue therein joined to be tried by a Jury and also after any Judgment had or obtained or to be had or obtained in either of the Courts aforesaid there shall not need to be fifteen days between the Teste-day and the day of Return of any Writ or Writs of Venire facias habeas Corpora Jurator or distring Jurator Writs of Fieri facias or Writs of Capias ad satisfaciend and that the want of fifteen days between the Teste-day and the day of Return of any such Writ shall not be nor shall be assigned taken or adjudged to be any matter or cause of Errour any Law Custome Statute Course or Usage to the contrary thereof in anywise notwithstanding Provided nevertheless that this A Proviso not to extend to a Capias and Exigent thereupon after Judgment or to a Capias ad satisf to make the Bail liable Act nor any thing therein contained shall not extend or be construed to extend to any Writ of Capias whereon a Writ of Exigent after Judgment is to be awarded nor to Capias ad satisfaciend against the Defendant in order to make any Bail liable but that the same continue and be as if this Act had never been made But to return to our former matter when the Attorney for the Plaintiff hath obtained a verdict and given rules and signed his Judgment he then entreth it up to the Filizer's Issueroll as aforesaid and taketh for his Fees the like Fees as by Bill But if the Defendant appear not at all but suffer himself to be returned outlawed upon the Exigent or Allocat then he bringeth the Exigent to the Filizer that made it out or else he fileth such Exigent himself with the Custos brevium of this Court and then getteth a Certificate from him that it is filed and bringeth it unto the Filizer and then he will make him out either a general or special Capias utlagat And this is all at present that may be thought necessary in this matter by way of direction Onely this let him take notice that Hilary Term is not so convenient a Term to begin to sue to the Outlawry in as other Terms are for the Defendant will not be outlawed then under four Terms although the Action be laid in London because of the short vacation that is between Easter and Trinity Term and in any other he will in three if the Original be returnable the first return of the Term. Also to observe in his Writs if he make them himself and carry them to the Filizer to be signed that as a man is always said to be utlagat outlawed So a Woman is always said to be Waviat waved that is to say derelicta left out or not regarded because Women are not by the Law obliged to be sworn in Leets to the King as Men are And now for the testes and returns of his Process he is hereby referred to a Modus return brevium placed toward the end of this Book And farther let him observe that if in an action of the Case where the cause of action is at large set out the damage be laid in the Writ of Capias to arrest to Ten pounds or above his Client ought to have good Bail but not so if the Defendant appear upon the Exigent or Allocat although it be laid 500 li. damage And if such Action be laid in London the Defendant will be sooner outlawed in respect of the Hustings there than in any County for that they are held in less time than the County Courts are holden in for there must be five Hustings returned upon the Exigents in London and five County Court days in the Counties at which the Defendant hath been called and hath not appeared Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the reversal of the Outlawry AS to the appearing upon the Arrest Appearance upon arrest if special Bail be required it must be thus The Defendants Attorney must come to the Filizer where the Action is laid and enter his special appearance that is by giving in a note to him of the Bail who they are and where they live and then the Filizer will go with him before some Judge of this Court and put in the Bail before him and then the Defendant's Attorney must give in a note of the Bail and before what Judge put in unto the Plaintiff's Attorney and if he accepts of the Bail he puts his hand to the Bail-piece that he doth so and then he fileth it with the Custos brevium of this Court and if the Plaintiff's Attorney excepteth against the Bail the Defendant must get his Bail to justify themselves before the Judge and yet if after that the Plaintiff is not satisfied with the Bail the Defendant must either put in other Bail or else justify the same upon oath in the Term-time in Court and then the Plaintiff is bound to accept them And as to the Appearance to the Exigent appearing on the Exigent there as is said before no Bail is to be given but onely the Defendant is to enter his appearance with the Filizer per Attorn suum and then taking from him a Supersedeas Quia improvide suggesting such appearance in the Writ which Writ he must deliver to the Sheriff And as to the appearing upon the reversal
Appearance after reversal of the Outlawry it is thus The first thing the Defendants Attorney must doe is to come to the Filizer of the City or County where the Action is laid and know of him when the Plur. Capias was returnable and then search the Filizer's Rolls of that Term and there he will find the Capias alias and plur Exigent and Proclamation awarded together with the return of the Exigent to the Quinto exact upon which the Defendant stands outlawed of all which he must take a Copy from the Roll and then come to the said Filizer to enter upon the said Roll by way of averment a defect in the proceedings either against the Statute of the one and thirtieth year of Queen Elizabeth for want of a Proclamation or otherwise as the case may require and then he prepareth his Bail-piece ready and bringeth the Bail into Court together with the Defendant and then causeth the bundle or file of Writs of Proclamations to be brought into Court and by motion of Counsel at the Bar alledging the want of a Proclamation and upon due search of the said File by the Secondary of the Court and none appearing to the Court to be filed the Outlawry is reversed by the Court which is always pronounced by the Seniour Judge of the Court if he be present if not by the next which reversal together with the names of such Bail who undertook that the Defendant shall appear to a new Original Writ to be brought by the Plaintiff within two Terms against the Defendant and to satisfy the Condemnation if he shall be convicted is all to be entred by the said Filizer up to the Process of Outlawry before entred for entring of which the Filizer's Fees are 4 d. the sheet And the Court of Common-Pleas have used to make such Entries as may appear by certain Orders Vide Praxis utriusque Banci fol. 108. in t alia of that Court made in the second year of Charles the First The words amongst others are these And it is farther ordered that all Reversals hereafter made shall be entred upon the same Roll where the Exigent is awarded being the most proper and fittest place for the safety and quiet of all Persons outlawed and their Executours to find the said Reversal in future times and not upon other Terms and Rolls as is now used Which also by the several Precedents of Entries of Reversals before-mentioned may appear to have been anciently the practice of this Court. And in these and the like Cases the Defendants do in the Common-Pleas appear by Attorney But in this Court the Defendant is obliged to appear in person with his Bail except this Court upon motion give leave to the Defendant to reverse per Attornatum The reason may be presumed to be this because upon all Outlawries in Criminal Causes in this Court the Defendants have been heretofore and now are obliged to appear in person to answer the contempts of the Law to the King and thereby they were immediately taken into custody for such contempts or otherwise disposed of at the discretion of the Court and in every civil Cause likewise it is a great contempt indeed of the Law for the Defendant not to appear after so many several Writs as go out against him before he is outlawed But yet a late Parliament thought the appearing in person so great a grievance to the Subject that it did receive a debate in the House of Commons upon a Bill then brought in but no Act passed thereupon for want of time as is presumed and whether hereafter it may not be a matter fit to be farther debated I shall leave to the wisedom of the great Council of this Nation when assembled in Parliament But to return it may be such Defendant hath been obliged to appear in person out of that high respect that ought to be given to the grandure of this Court the King himself as before is said being supposed sitting there And to be outlawed formerly in the Reign of King Alfred and untill a good while after the Conquest for Felony as my Lord Coke hath it in his First Institutes Cap. Villenage Sect. 197. fol. 128. b. was very dangerous for such Persons might have been put to death by any man as well as a Wolf that hatefull Beast might For utlagatus waviata Capita gerunt Lupina But then saith he no Man could have been outlawed but for Felony But you may see there how this Inhumanity was restrained and altered in the Reign of Edward the Third And now our Laws are made more tender of life though it be of such great Malefactours that so they may be punished or discharged by the hand of the Law onely which nulli facit injuriam And although then none could be outlawed but for Felony yet as he saith there that afterwards in Bracton's time and somewhat before Process of Outlawry was ordained to lie in all Actions that were Quare vi armis which Bracton calls Delicta for there the King shall have a Fine But since saith he by divers Statutes speaking in general of such Proceedings and not of any Court in particular Process of Outlawry doth lie in Account Debt Detinue Annuity Covenant Action sur le Statute de 5 Rich. 2. Action sur le Case and in divers other Common or Civil Actions But to go on he saith farther in his Chapter of continual Claim Sect. 437. That there may be other Causes of reversal besides the want of a Proclamation and that by plea for matters apparent as in respect of a Supersedeas variance or other matter apparent in the Record And yet in these Cases saith he some hold That in another Term the Defendant is driven to his Writ of Errour And farther if the Defendant be arrested by a Capias utlagat he ought not to be discharged out of custody without a Supersedeas for the same as appears by the last mentioned Statute of the 13. of the now King the like certainly is requisite in case where his Goods or Chattels are taken or else if he be taken and would reverse the Outlawry then he may have a Habeas corpus to bring him into Court to reverse such Outlawry But if all the Process to the Outlawry be well returned entred and filed then there is no way to reverse the same but by Writ of Errour which comes in the next place to be handled How to reverse an Outlawry by Writ of Errour IT hath been a received Opinion that no Writ of Errour lies returnable in this Court upon any Action brought by Original Writ in this Court but that it must be returnable in the High-court of Parliament but certainly that must be intended where Judgment is had and obtained upon such Action for every Writ of Errour supposes a Judgment of the Court given for the words in every such Writ are Si Judicium inde reddit sit but in this case where it is no
Judgment of the Court but of the Coroners of the County against the Defendant for his contempt in not appearing upon the Exigent that he be outlawed there this Court hath a power to reverse that Judgment within themselves by a Writ of Errour which may be called a Writ of Errour coram nob residen and this appears by the Register of Writs folio 133. Title-errour in these words Rex c. Dilect fidelib suis F. P. Milit. Capital Justic nostro Sociis suis Justiciariis nostris ad placita in Cur. nostra coram nob tenend assign Salutem Quia in recordo processu ac etiam in promulgatione utlagariae in T. S. nuper de K. in Com. H. Yeoman in London nuper promulgat coram nobis ut dicitur retornat Error intervenit manifestus ad grave dampnum ipsius T. sicut ex querela sua accepimus Nos error si quis fuerit modo debito corrigi eidem T. plenam celerem Justitiam fieri volentes in hac parte vobis mandamus Quod si utlagaria praedicta coram nobis retornat existit tunc visis recordo processu utlagariae praed vocat coram vobis quos in hac parte fore videritis evocand ulterius pro adnullatione utlagariae praedictae fieri facias quod de jure secundum legem consuetud Regni nostri Angliae fuerit faciend T. c. But this Writ of Errour is not to be made by the Filizer although inserted here but as all others doth belong to the Cursitor to make the which together with the Return thereof and all the Process of Outlawry thereupon must be entred on the Filizer's Rolls of that County where the Action lies and Bail must also be given as in other cases of reversal And indeed were it that such Writ of Errour could not be brought returnable in this Court but in Parliament considering their intervals what great prejudice would arise thereby to such Defendants against whom all Writs and Process are duly returned and filed which the Attorney for the Plaintiff may doe if he think it fit though it is usual to forbear filing of the Proclamation thereby to let the Defendant come in if he will to reverse the Outlawry for want of a Proclamation by motion in Court as before is set forth and so may appear to the Action And this short account may suffice as to this matter it being but very seldom used to file all the Process whereby to put the Defendant to bring a Writ of Errour to reverse such Outlawry How to proceed to the Outlawry after Judgment IT hath been made a Question whether such Process could lie in this Court or not and the reason alledged hath been for that after a Recovery of a Judgment had and obtained although upon an Action brought by Original Writ such recovery is a Debt and no Action will lie for this it being grounded upon matter of Record but an Action of Debt in which Action this Court hath not used to proceed by Original Writ But in answer thereunto in this Case the Plaintiff doth not bring his Action but onely as it were pursues the having of his Execution to which end the Attorney for the Plaintiff is to take out from the Filizer a Capias ad satisfaciendum directed to the Sheriff of that County where the Action is laid and upon a non est inventus returned and filed the Filizer of that County will make out an Exigent post Capias and as is said before in the said Statute of the thirteenth year of his now Majesty's Reign which hath made a provision there for the proceedings in such Cases that there must be fifteen days between the Teste and Return of such Cap. So that if there were nothing else to prove it but the words of that Statute that were sufficient in it self But it may easily be farther proved that several Filizers of this Court have made out the same for several Attorneys It appears by the late Filizer of London's Books that in 9 Car. primi he made out one for one Barnard an Attorney and the like in the same year for one Woodward an Attorney and in the year 1651. the like for one Walpole an Attorney and in the year 1662. the like for one Marshall an Attorney all Attornies of this Court and the now Filizer of Yorkshire hath done the like and also the now Filizer of London hath done the like and that not onely upon Judgments recovered upon Actions brought by Original Writ but also upon Judgments affirmed upon Writs of Errour brought upon Judgments given in inferiour Courts in Actions of the Case and the like Actions that are usually brought in this Court by Original Writ And this Proceeding being very rare and seldom that it runs to so far a Line a few Precedents in this nature must serve the turn and may be sufficient to prove that it is at the Election of the Plaintiff if he pleaseth to proceed as well to the Outlawry after Judgment whereby the Defendant is again warned as it were to come in and pay the Plaintiff his damages recovered as to bring any action of Debt upon the said Judgment Somewhat concerning Imparlances upon Suits brought by Original Writ IT is to be presumed the course of this Court in this particular is not altered since the year of our Lord 1654. wherein in Michaelmas Term in that year this Court made several Orders and Rules and published them in Print under the hands of the then Judges to wit Henry Rolls Richard Aske and Richard Newdigate and among them these following For asmuch as some inconveniences do some times happen to the Plaintiffs by entring their Declarations in special Actions It is therefore ordered that the Plaintiff in such special actions shall have liberty to enter Imparlances the next Term following entring the same of the first Term with an Incipitur as it hath been usual and that all other Imparlances be duely entred before any Issues Demurrers or Judgments thereupon be entred That if a Defendant appear the first Term and give no rules to declare the Defendants Attorney may the second Term be compelled to accept a Declaration with an Imparlance and the Declaration may be entred as of that Term with an Imparlance over to the next Term or in the first Term with an Incipitur as before as the case shall require That if the Plaintiff declare not the second Term though the Defendant give no Rules yet a Non-suit may be entred at the end of the second Term upon a continuance over by him by dies datus but not the third Term or after Upon a mere real action an Imparlance to be of course That in Ejectment or any personal Action if the appearance be the first return of Hilary or Trinity-Term no Imparlance without consent or special rule In causes other than London or Middlesex if the appearance be before Crastin Martini or Mensem Paschae no
to desire the prosperity of it which I do not in the least doubt of but it will enjoy under the wise and prudent management of the practice thereof in both cases by Writ and by Bill by the now most Reverend and Learned Judges sitting therein unto whose great and profound Wisedom I do most humbly submit whatsoever I have said in this small Treatise having designed nothing herein but for a common good although I doubt I have displeased some by so doing being importuned thereunto by divers Practisers of this Court Some Precedents of frequent use both of Writs and the Entries thereupon and also Declarations Imparlances Issues Judgments and Defalts and other proceedings in actions brought by Original Writ and entred by the Filizers ANd First To begin with such Writs in which you proceed to the Outlawry wherein your Capias alias plur may be made short not reciting the cause of action at large Carolus c. Vic. L. Salutem Praecipimus Le Capias vobis quod capiat A. B. nuper de c. in Com. c. gen si invent fuerit in balliva vestra eum salvo custod Ita quod habeat ' Corpus ejus coram nobis à Die c. Vbicunque tunc fuerimus in Anglia ad respondend C. D. de placito Transgr super Casum Et habeat ' ibi hoc breve T. c. E. F. Att. Vic. L. Salutem Praecipimus vobis Le Alias sicut alias vobis praeceperimus quod capiat c. ut antea usque finem brevis del Cap. Vic. L. Salutem Praecipimus vobis sicut Le Plur. plur vobis praeceperimus quod capiat c. ut antea usque Finem brevis delalias Cap. Vic. L. Salutem Praecipimus vobis Le Exigent quod Exigi faciat A. B. nuper de c. in Com. c. gen de Hust in Hust quousque secundum legem consuetud hujus regni nostri Angliae utlagetur si non comparuerit comparuerit tunc eum capiat salvo custod faciat Ita quod habeat ' Corpus ejus coram nobis à die c. ubicunque tunc fuerimus in Anglia ad respondend C. D. de placito quare cum c. Ut in le original usque ad Dampnum ipsius C. D Centum Librar ut dicit Et unde vosipsi nobis mand à die c. Le retorn del plur ult preterit quod predict A. B. non est inventus in balliva vestra Et habeat ' ibi hoc breve T. c. Vic. M. Salutem Cum vic nostris L. Le Foreign Proclamatio per breve nostrum nuper praecepimus quod exigi facerent A. B. nuper de c. in Com. c. Gen. de Hust in Hust quousque secundum legem consuetud hujus regni nostri Angliae utlagaret ' si non comparuisset Et si comparuisset tunc eum caperent salvo custod facerent Ita quod haberent Corpus ejus coram nobis à die c. idem retorn cum le exigent ubicunque tunc fuissemus in Anglia ad respond C. D. de placito quare cum c. ut in le exigent usque ad dampnum ipsius C. D. Centum librar ut dicit Ideo Tibi praecipimus quod per Statut. Anno regni Domini Elizabethae nuper Reginae Angliae Tricesimo primo inde provis ' proclamari fac prefat A. B. tribus seperalibus diebus secundum formam Statuti illius unde una Proclamation ' predictar fiat ad vel prope maximum usual Ostium Ecclesiae parochial ubi est inhabitans quod se reddat prefat vic nostris London Ita quod habeant Corpus ejus coram nobis ad prefat Terminum ad respondend prefat C. D. de predicto placito Et habeas c. Teste cum le Exigent If the Proclamation be not Foreign but into London as the Exigent was then say Eum vobis c. as in the Supersedeas following and Ideo vobis praecipimus quod per Statut ' c. usque quod se reddat vobis Ita quod habeat ' Corpus c. Et habeat ' c. Vic. L. Salutem Praecipimus vobis Le Allocatus quod allocat ill quatuor * Si in Com. Quatuor Com. Hust ad quos A. B. nuper de c. in Com. c. gen exact fuit non comparuit prout †Tu ipse vosipsi nobis à die c. le retorn del Exigent ult preterit mand ipsum A. B. ad prox Hust vestrum London ulterius exigi fac quousque secundum legem consuetud hujus regni nostri Angliae utlagetur si non comparuerit c. ut in le Exigent usque ut dicit Et habeat ' c. Teste le retorn del Exigent si soit in Terme Si non le quarto de post Vic. L. Salutem Cum vobis per breve Le Supersed quia improvide nostrum nuper praeceperimus quod exigi faceretis A. B. nuper de c. in Com. c. gen de Hust in Hust c. ut in le breife de Exigent usque ut dicit Quia tamen ante emanationem pred brevis nostri de exigend proed A. B. per E. F. Attorn suum comparuit in eadem Cur. nostra coram nobis quam plur se obtulit ad respondend ' praefat C. D. de praedicto placito Sic que breve nostrum praed inde versus eundem A. B. minus rite emanavit Ideo vobis praecipimus quod de ulterius exigend ' praed A. B. utlagand capiend ' seu ipsum in aliquo modo molestand occasione illa omnino supersedeat T. c. Sur le Teste jour del Exigent ou ascun temps devant le retorn de ceo Vic. M. Salutem Praecipimus tibi Le general Cap. utlagat quod non omittas propter aliquam libertat Com. tui quin capias A. B. nuper de c. utlagat in London die Lunae le quinto exact Anno regni nostri c. vel ult praeterit ad sect C. D. de placito c. si invent fuerit in balliva tua eum salvo custod Ita quod habeas Corpus ejus coram nobis à die c. ubicunque tunc fuerimus in Anglia ad fac rec quod Cur. nostra coram nobis consideravit in hac parte Et habeas c. Si in London propter aliquam Libertat Com. Civitat vestrae quin c. Vic. M. Salutem ut antea usque Com. Le special Cap. utlagat tui quin per Sacr ' probor legalium hominum de eodum Com. tuo diligent inquir quae bona catalla terras tenementa A. B. nuper de c. in Com. tuo gen habet seu habuit c. Ut in le gen Capias utlagat usque de placito c. prout Vic. nostri London nobis apud Westm
remaining in the hands of Christopher Hoddesdon James Tetlowe Richard Antrobus and Richard Barnett wherein some of these Fees were written whereby we are induced to believe the said Fees in the said Books or Notes contained to be anciently due and payable the Copies of which Books or Notes so to us produced according to our charge in that case we are ready to shew to his Majesty's said Commissioners together with this our Certificat And we do farther certifie that we know not of any other Books Rolls Deeds Records Orders Tables Notes or any other Writings Memorandums or Warrants which may give any farther testimony concerning the premisses except one Note or Book remaining in the hands of William Langhorn Robert Redwood William Harvey Francis Beard Laurence Gibson Christ Hoddesdon James Tetlowe Stephen Bunce Lewis Bromhall Robert London William Tompson Thomas Farrer Simon Harborn Richard Brittain Richard Barnett William Small Edmund Denny Nicholas Tippett Thomas Powell Richard Antrobus John Green John Badger Felix Wilson Robert Clark Ambrose Mudford Richard Slater William Jumper William Leach Gilbert Barrell John Dobbins These Fees following were not certified in the former Verdict but thought fit by most of the Jury to be left out as things not inquirable or comprehended within their charge To the Associate for entring a Cause in the Lord Chief Justice his Book 11 08 To the Sheriff for the Return of the Venire fac ' 00 04 For Return of the Distring ' 02 04 For the Sergeant for summoning the Jury 03 04 To the Marshal 02 00 To the Crier 01 00 To him for swearing every Witness 00 04 To the Sheriff for a Tales 02 00 To the Associate for a Tales 02 04 To him for a Default 02 04 To the Hall-keeper for the Green-cloth 01 06 If it be in the Night to him for Lights 00 06 To the Bar-keeper 01 00 To the Sergeant for keeping the Jury 01 00 To the Jurors 08 00 Innovated Fees To the Associate for taking out of a Record not tried 02 00 Which began first about twenty years past  To him that Readeth the Records and evidences and taketh the Verdict 01 00 Which hath continued about thirty years  To the Judges Foot-cloth and Horse-keeper for every Cause 01 00 Which hath been above thirty years  To the Associate for the Return of the Postea 02 00 If the Verdict pass for the Defendant or the Plaintiff be nonsuited then there are these Fees taken of the Defendant again To the Marshal 02 00 To the Crier 01 00 To the Foot-cloth keeper 01 00 To the reader of the Record 01 00 This use began about nine years past  Also for every Remanet where the Plaintiff is not in default the Associate taketh for entring the Cause again in the Lord chief Justice his Book if he will have it tried 11 08 This hath been used above twelve years Fees paid in our memories for a Nisi prius in Middlesex To the Associate for entring the cause in my Lord's Book 11 08 To the Sheriff for the Return of the Venire facias 02 00 To him for the Summons and the Distr ' 12 00 To the Judges Marshal 02 00 To the Crier 01 00 To him for swearing every Witness 00 04 To the Sheriff for a Tales 02 04 To the Associate for a Tales 02 04 To him for a Nonsuit 02 04 To the keeper of the Juries 01 00 To the Porter 01 00 To the Jury 12 00 Innovated Fees To the Associate for Return of the Postea 02 00 To him that readeth the Record and Evidence and taketh the Verdict 01 00 To the Judges Foot-cloth and Horse keeper 01 00 This hath continued about 30 years  To the Associate for taking out of a Record not tried 02 00 This began about sixteen years past  If the Verdict pass for the Defendant or the Plaintiff be Nonsuited then the Defendant must pay these Fees following again To the Marshal 02 00 To the Crier 01 00 To the Foot-cloth or Horse keeper 01 00 To the Reader of the Record 01 00 This use began about 12 years past  The Marshal's men demand and take for the keeping of the Jury at Nisi prius in Middlesex 03 06 Which is more by 2 s. 6 d. than is taken in like case in London Fees paid in our time to the Clerk that draweth up Special Verdicts in London or Middlesex For drawing it up per Sheet 01 00 For indorsing it per Sheet 00 08 For copying it per Sheet 00 04 Fees paid all our time for drawing a Special Verdict at the Bar. For drawing it per Sheet 01 00 For Copies per Sheet 00 04 Fees paid to the Clerk of the Assizes for Posteas in our memories For returning every Postea the Verdict passing for the Defendant or the Plaintiff Nonsuited 02 00 For drawing a special Verdict per Sheet 01 00 For every Copy thereof per Sheet 01 00 But now the Clerk of the Assizes taketh for returning every Postea with a general Verdict 2 s. if it be long and contain divers Issues then more than 02 00 For two Copies per Sheet severally 00 08 For ingrossing per Sheet 01 00 Fees paid to the Sheriffs during our memories For returning a Cepi Corpus 00 04 For returning a Venire fac ' in London 00 04 For returning it in any other County 02 00 For returning a Scire fac ' with a Nichil 01 00 For returning a Scire fac ' with a Scire feci 02 00 Finis Feod de Banc le Roy. THese were Attornies no doubt of the greatest knowledge in those times and most fit to be concerned in such an Inquiry after the Fees of that Court wherein they were Attornies The three first were Clerks in the Crown Office as I have been informed Hoddesdon was afterwards Secondary of the Court Small of Furnival's-Inn Denny of Clifford's-Inn Slater one of the Clerks of the Nisi prius Office in this Court Leech was the now Secondary's Master Barrell Clerk of the Rules some of these I knew and the greatest number of them that did so present as aforesaid were Clerks to the then chief Clerks and it may be some of them were well known to some of the now Judges Officers and Attornies of this Court and it is strange that they should not understand well their Master's Fees above all others and yet these Attornies have presented those Fees for entring Issues by Original to be due to the Filizers which the now chief Clerk claims to be due to him and the same Attornies that presented theirs at the same time presented the then chief Clerk's also which Fees cannot be admitted to be his due and the Filizers Fees presented denied to be their due except it must be presumed they swore right and were very honest men as to one part of the said Presentment and perjur'd and very dishonest men as to some other part of it which cannot be for Juramentum est