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-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
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
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-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
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
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
Crier and Porter As Crier For every Oath given in Court 00 04 For taking a privy Verdict 04 00 For every argument in Law 02 00 For every wager in Law 02 00 When one chuseth his Guardian 6 d. For a Bail taken at the Bar 02 00 For calling a Nonsuit 04 00 For calling the Record 01 00 For calling a Default 01 00 When a Pardon is pleaded 02 00 For every Tryal at Bar 05 00 As Porter For every privy Verdict 02 00 For summoning the Wager Men 03 00 For a Bail taken at Bar 02 00 For a Record called 00 06 For a Default called 00 06 For a pardon pleaded 02 00 For a discharge of a Rescous 00 04 For a Bail taking in the Court 00 06 Of all these Fees above mentioned claimed by the Crier and Porter these following have been paid as due during the time of our knowledge For calling a Jury 01 00 As Crier For swearing every Witness 00 04 For a wager in Law 01 00 For a Nonsuit 01 00 For a Default of Record 01 00 For a Defecit in Lege 01 00 For summoning the Wagermen 03 00 Also the Porter receiveth more of the As Porter Wagermen where the Defendant wageth his Law or is ready to wage his Law 12 00 Fees received by the Clerk of the Errours immediately after the Statute of the 27th of Elizabeth For the Lord Chief Justice his Fee for Clerk of the Errours the allowance 17 08 For the Receipt 05 00 For the Return 02 00 For the Certificate of the first Press 06 00 For writing of the first Press 02 00 For a Supersedeas 02 07 These Fees amounting in the whole to 01 l. 15 s. 03 d. were paid upon the allowance and for the Supersedeas  For the certifying of it he taketh for every Press besides the first Press 06 00 For the writing of every Press after the first 01 00 For the Roll 01 00 For marking Non pross upon the Roll 05 00 Also immediately after the making of the Statute of Anno 3 Jacobi Regis the Fees taken for the Bail were as followeth upon a Writ of Errour For the Prothonotaries for the Recognizance 02 00 For the Judge's Clerk 02 00 For making the Bail 00 04 For drawing and entring the Recognisance 04 00 Now and for the space of 30 years last past he hath taken upon the receipt of every Writ of Errour and Supersed in a gross summ 2 l. 6 s. 8 d. Also for certifying every Press besides the last 06 08 For writing every Press besides the first 02 00 For every Supersed besides the first with the Seal 09 03 These last Fees were set down by Sir John Popham late Lord Chief Justice ex relatione Edwardi Pye now Clerk of the Errours but we do not certifie it of our knowledge  Also he taketh and for the space of divers years now last past hath taken in a gross summ for every Bail 19 04 For every Writ of Errour tam in redditione Judicii quam in adjudicatione Executionis he taketh double Fees  The Fines There is an Office invented and erected Clerk of the Fines about the sixth of King James and now exercised by Henry Mordant Esquire whereby is demanded and taken upon the filing of every Declaration in Debt where the Debt is above 40 l. and not above 100 Marks 3 s. 4 d. and above 100 Marks and not above 100 l. 5 s. and so more after the same rate and also every Action upon the Case Trespass for Goods where the Damages are laid above 40 l. the like rates so that the Plaintiff or Defendant be not a Person privileged nor the Defendant in Custod Mar ' whereas before 6 Jacobi Regis in all our memories no such monies were paid or demanded The Seal Office The Officer or Patentee receiveth for Seal Office every Writ besides Cap ' utlagat ' and other Writs pro Rege and for Exemplifications and Writs of Privilege 00 07 And for every Cap ' utlagat 00 01 For Exemplifications 02 06 For all other Writs pro Rege and for Writs of Privilege nothing  Fees for Trials at the Bar taken by several Officers as followeth The Cryer for calling the Jury 02 00 Trials at Bar. For swearing every Witness 00 04 The Porter for keeping the Doors 05 00 The Crier for a Nonsuit 02 00 The Deputy-Marshal 02 00 The Tipstaves or Marshal's Men for a Verdict given before the Court riseth 08 06 If the Jury lie together all Night 17 08 The Judges Foot-cloth Men 1 s. a-piece 04 00 The Secondary receiveth for a privy Verdict 13 04 The Secondary receiveth for a Verdict in Court 02 00 The Money he receiveth for the privy Verdict he saith is thus divided viz. The Judge that taketh the Verdict 06 08 To the Secondary 02 00 And the rest among the Officers that attend 04 08 Of all the Fees before mentioned we present these following to be due To the Crier for calling the Jury 01 00 For swearing every Witness 00 04 For calling a Nonsuit 01 00 To the Deputy-Marshal 02 00 To the Porter for keeping the Dores 01 00 To the Secondary for taking the Verdict in Court 02 00 For a privy Verdict to the Secondary 13 04 Which is divided as aforesaid  And now they take no other Fees than these last mentioned  We pay into the Crown-Office for estreating every Amercement upon a Sheriff 01 00 The Clerks of the Office have formerly paid no Fees at the Trials in causes at their own suits but now they pay for their own Causes as for their Clients Also there is paid to the Secondary his Clerks by every one of the Prothonotaries Clerks every Term that he faileth to bring in his Rolls within 24 days next following after Trinity Term Michaelmas and Hilary Terms respectively and within 10 days next after Easter Term 1 s. whereas they have always formerly had time to bring them in untill the Essoin day of the next Term without Fee Also there is paid to the Secondary his Clerk for the filing of every common Bail after six days after every Term over and above the due Fee 4 d. the Table of which several payments last mentioned is remaining in the King's-Bench Office These be all the matters which for the present we remember and which we conceive to be within our charge to be inquired of and certified And we farther certifie that every one of us doth not know all and every the Fees and matters herein certified to be true or that they have been paid of our own proper knowledge but some of them some of us respectively knoweth of his own knowledge and some of them we take by relation and information of some others of us that have hereunto subscribed upon whose information and relation we believe these things to be true And there have been produced and shewed unto us certain ancient Books or Notes
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