Judges of these Courts these things are to be known First In this Court which is of the nature of a Court Baron not the Sheriff nor the Steward but as to all actions and proceedings by a Iusticies or other writ as also in other Suits which are there by plaint without writ the Freeholders Freeholders or suitors to be Judges of the County or Suitors are Iudges there But as to Outlawries the Coroners only are Iudges and the Sheriff Steward and Bayliffs are ministers and therefore the Sheriff can do no act there without the assent of the Suitors and if he do an Action of the Case lieth against Action of the Case against the Sheriff False Judgement him not a writ of false Judgement as it doth against the Suitors if they give a false Judgement and thereupon they are to be amerced whether the Suit be upon a Iusticies or not Secondly There must be two Freeholders at the least or else the Court cannot be held Thirdly In some speciall writ now out of use the Sheriff is Judge there Fourthly If the Freeholders do not appear they may be Affering amearced the amearcement affeared extreated and levyed but it must be done by two Freeholders at the least and may not be done by the Sheriffs without Freeholders Sect. V. Of the Povver and Proceedings of this Court in Generall THe power in Generall of this Court is either ex officio and of it self or by commission called a Iusticies and in Justicies both cases the Freeholders not the Sheriffs are Judges of this Court and they may by their own authority hold plea of hear and determine all lesser actions as actions of debt trespasse covenant detinue account and the like and in cases of Replevin where the debt or damage is not forty shillings or upwards and no freehold is in question and by a Iusticies they may hold plea of hear and determine all actions of what value soever and notwithstanding the freehold it self being in question And this not onely between persons and parties living within the County where the defendant lives but also between persons living elsewhere out of the County for any cause or contract ensuing within the County or any transitory things In all which cases their proceeding is much after the example of the higher Courts by entring of Plaints by the plaintiff himself or his Attorney putting in of pledges filing declarations And if the Defendant appear not by processe of summons attachment and distresse upon attachment infinite till he do appear which when he doth he is to plead and so to the triall of the cause which is commonly by wager of law but by consent of the parties it may be by Jeury as it may be also where the use of the Court is so And if judgement be given against the defendant the execution is by distresse a warrant is sent from the Judges to the Bailiff to seise the defendants goods put them in pound or sell them and bring the money in Court for the Plaintiff as the custome and course of the Court is And if the Court give judgement or do any thing contrary to Law the party grieved thereby must have his remedy by a writ of false judgement And Executors and Administrators may sue and be sued here as in other Courts But we shall open these things more particularly in the things that follow Sect. VI. Of a Iusticies A Iusticies is a writ in the nature of a commission directed to the Sheriff for the dispatch of justice in his County Court in some especiall cases wherein of his own authority he cannot deal And as to this part these things are to be known First That albeit the writ doth lie in divers cases yet at this day it is very rarely used in any case but in an action of debt or some such like action of or above forty shillings in which case the Sheriff hath not power in this Court without this commission Secondly That albeit the writ be directed to the Sheriff yet are the Suitors the Judges and their proceedings alike in this as in other actions And yet in this it is a County record and so it is not in the proceedings of all the rest Thirdly The Sheriff upon this writ may not make a precept to a Bayliff of a Franchise to have his cognizance of the cause nor may any other but the Sheriff and the high Sheriff as it is held himself hold plea upon this writ Fourthly A suit here upon Remove this writ is removeable as another suit is that is without it Fifthly The Sheriff is not bound to make any return of this writ Sect. VII Of an Attorney and Pledges ANy man may make a generall Attornees Attorney to sue for or against him in all pleas in this Court. And for pledges pledges which are such as do undertake for the Plaint that they should prosecute the suit and stand to the judgement of the Court there ought to be such in this as in other Courts of sufficient men of the county but this it seems is out of use and not necessary at this day Sect. VIII Of a Plaint THe Plaint is the first entry of the persons to and cause of the action in the Court upon which all the rest of the proceedings are grounded and is thus A. B. complains of C. D. in a plea of debt of ten shillings and so as the case is And as to this these things are to be known First No Plaint ought to be entred except in case of Replevins out of Court but in full County and sitting of the Court. And yet the course is otherwise and as it seems good enough Secondly The Sheriff or his County Clark or any other by either of their commandments or in their names may not enter any plaint in any mans name unlesse the Plaintiff be present in Court in person or else by his Attorney or deputy and yet this it seems is good enough though otherwise entred but for this cause it may be removed if it be set forth Remove and moved in another Court Thirdly Nor may any man enter a plaint in the name of a dead man of purpose to get money of the Defendant Fourthly Nor may any of the Officers of the Court enter or cause to be entred any more plaints then the plaintiffe hath cause and desireth against the defendant Fifthly There must be but one plaint for one contract trespasse or cause Sixthly The plaint that is for trespasse may not be vi armis for then a prohibition Prohibition may be had to stay the suit but leaving out these words it may be brought there for a trespasse Seventhly No plaint can be heard in this Court for charters touching Inheritance or Freehold Eighthly No plaint or suit can be entred here for debt or damages to forty shillings or upwards c. unlesse it be upon a Justicies But under forty shillings it may be for
you cause to be levied and that you have the same mony at the next Court to answer the same to the said A. B. and that you have there also this precept c. And this precept is given where the defendant is condemned by default verdict or otherwise to levie the debt or damages of the goods of the defendant which being taken are to be prised and sould to satisfie the Plaintiff but the goods in this case may not be delivered over to the Plaintiff himself And as to all these Processe Officers and the execution thereof these things are to be known First that the Bailiffs or other officers of the Court upon these Processe or precepts must take care duly to execute them and to make return what they doe upon them Secondly they may upon these Processe take any mans goods or cattell in any place in the County upon his own or another mans ground Thirdly they may enter into any house or close if the door be open to do execution of the goods of the partie the goods being there Fourthly if any default be in the Bailiff or other officer in Amercement the execution of his precept or making return of it when it is executed or the like he may be amerced for it by the Court. And in some cases the partie grieved by it may have his action of the case against him Fiftly the goods they seize Attachment or take must be reasonable and not excessive Sixthly after Processe by Attachments or distresses once Or distresses granted the Sheriff ex officio may grant new Processe of the same nature And so after judgement entred he may grant out execution of course if the Court do not stay it But otherwise these officers are not to doe any thing without the Benchers except in case of necessity as granting of Replevins Replevins this is done of course Sect. X. Of the proceedings from the time of the defendants being summoned or attached to the end of the Suit THe proceedings in these cases is much after the fashion of the proceedings in the higher Courts as in these particulars that follow First when the defendant is to come in sometimes he may Essoyne be excused by an Essoyne for the defendant when he cannot appear at the time appointed by the Court for reasonable cause he shall have a further day and his default shall be saved and as to this essoyne these things are to be known 1. That the ordinary causes for which this is allowed are 1. That either the defendant is in the service of the Lord Protector or is beyond the sea or is sick or the water is so high that he cannot come or the like 2. He that casteth an essoyne ought to come at the beginning of the Court when Proclamation is made 3. If one be essoyned one Court the other may be essoyned the next Court. 4. No essoyne is to be allowed by either partie without cause shewed which may be without oath 5. No essoyne is to be allowed in these cases following 1. Where the partie himself is seen in Court 2. Where the partie hath an attorney in the same plea present in Court 3. Where the partie made default at the last Court before 4. Where the partie doth come in by distresse Secondly where the defendant Declaration doth appear the Plaintiff must see his Declaration be filed or the Plaintiff may be nonsuit otherwise unlesse the Court give further day to him also he must see to it that it be made perfect or the defendant Demurrer may demurre to it and put the Plaintiff to make a new Declaration and yet before the defendant have answered the Amendment Plaintiff may by order of the Court have any thing amended that is amisse in the Declaration Thirdly the defendant when Imparlance he appears and the Declaration is filed shall of course have an Imparlance for one Court that is upon his desire he shall have further day given him to answer till the next Court and this by order of the Court or agreement of the parties may be again continued to another Court Fourthly continuances must Continuances be made of cases in this Court from Court to Court as they are in the Courts at Westminster from terme to terme to keep the suits in being Fifthly the defendant after a perfect Declaration put in must Pleading give his answer or plead to it and for this these things are to be known 1. He must plead in the time appointed by the rules of the Court otherwise judgement will be given against him for his default by nihil dicit 1. because he saith nothing 2. His plea must be legall full and perfect or else it will be to the advantage of the Plaintiff for a bad or insufficient plea is in Law as no plea. Sixthly the ordinary pleas here to action of debt are as in the Courts at Westminster as the case is as for example if the suit be on a deed It is not his deed that it was made by threatning or imprisonment That he tendred the mony at the day and is still ready to pay it A release or acquitance by deed and such like Or if it be on a Contract without a deed payment or obligation made for the debt an arbitrement c. That he doth not owe the mony and such like And if the suit be against an executor or administrator the ordinary plea is that he was never executor or that he hath fully administred or the like Or if the suit be grounded on a deed or on a Contract without a deed that he was within age when he did make the deed or Contract or if it be against a woman that she was covert 1. had a husband when she made the deed or Contract or such like If the suit be grounded on an arbitrement that there was no arbitrement Legally made or that he hath performed the award If it be on a Replevin for trespasse by damage fesant that the beasts came in by the default of the inclosure of the Plaintiff or that he hath title of common there or the like And if it be on a distresse for rent That there is no rent behind or the like If it be on an action of detinue the ordinary pleas are That he doth not deteine the thing sued for a release or a guift to him by the Plaintiff of the thing sued for or that he did tender the thing sued for before the action brought or that he is ready to deliver the thing and hath brought it in Court or that the Plaintiff did deliver it to him as a pledge for twenty shillings which he hath not paid or that the thing sued for was delivered to him by the Plaintiff and another and not by the Plaintiff alone And such like Or if it be an Action of the Action of the case upon an assumpsit Case upon an assumpsit the ordinary
in them this is not grantable It is a writ lying where a man is distrayned for any services Recaption and having that suit he is distrayned again for the same cause though the distress be for service due after the first distresse yet it lyeth not till the first suit be determined Sect. XII Of costs of suits recoverable in this Court AS to the costs of suits recoverable in this Court These things are to be known First in all suits whether judgement be given for Plaintiff or defendant such reasonable costs of suit are to be given as the Court shall set down Secondly where the Plaintiff doth not proceed or the cause doth go against him upon the triall the Court must give the defendant reasonable costs for the unjust vexation Thirdly such remedy and execution shall be made for recovering of these costs as the Plaintiff hath for recovering of the costs he doth recover in that Court against the defendant Sect. XIII Of Amercements in this Court and the streats thereof ANd to this these things are to be known 1. The Court may amerce any man for any contempt or disturbance of the Court made in the presence of the Court for in what case a man may be fined in a Leet he may be amerced here and this it seems need not be affered as all others but Afferement it is safe to do it And when any officer doth commit any default or neglect in the execution of his office and when the Plaintiff is non-suit Quia non est prosecutus Because he hath not prosecuted either at the first or after when the Jury is ready to give verdict or the Court give judgement or pro falso clamore And when judgement is given against the defendant he may be amerced And when any Bencher Iuror Plaintiff or defendant doth make default he may be amerced so also every man for his default of appearance after summons may be amerced But all these amercements upon officers for their miscarriage must be Afferement affered by the Benchers the rest by them or some others otherwise they may not be extreated they may be levied by Estreates distresse and putting in pound not by sale without a speciall custome in it and being levied shall go to the use of the Sheriff And the Sheriff must see that he leavie none of these amercements untill they be first allowed by two Iustices of the Peace Sect. XIV Of removing of suits out of this Court SUits may be removed out of this into a higher Court. And this is to be done either by a recordare or by a pone And Recordare therefore the recordare is said to be a writ out of the upper Bench or common pleas directed to the Sheriff commanding him to send a plaint that is before him without writ in his County Court into that Court from whence the recordare is sent to the end that the case may be there determined And this the Sheriff must certifie under his seal and the seal of four of the Suitors of the same Court and he is to summon the other party to be in that Court whether the plaint is to be sent by a day and a pone doth Pone nothing differ from this but that that is to remove such suits as are there before the Sheriff by writ and not by plaint and as to this these things are to be known 1. That if these be sued out by the Plaintiff in the County Court it may be had without shewing any cause at all if it be had by the defendants suit he must shew cause As first being to remove a plea in a replevin by plaint to shew that the defendant avoweth for damage fesant and the Plaintiff doth justifie for common of pasture which is a plea touching freehold and therefore should not be without writ Or that he before whom the writ depends is a favorer of him that is of the other side Secondly if any officer of the Court proceed after the removeall he may be punished for it in the Court from whence the writ to remove it came for the suit in Law is now at an end in the inferior Court Thirdly and after it is once sent away it can never be sent back again but must be tried in the Court into which it is sent Fourthly a suit is sometimes removed out of this Court into False judgement a higher Court by a writ of false judgement And this writ is defined to be where an erronious judgement is given in any inferior Court that is not a Court of record as County Hundred or Court Baron then the partie grieved by the judgement may have this writ and remove the whole Proces of the suit into the common pleas and there it shall be examined and if it be found the judgement shall be reversed and the Suitors or Judges Jurors amerced of the Court that gave the judgement amerced Sect. XV. Of the Povver and duty of the officers of the Court. AS touching the power and duty of the officers and those that act under this Court these things are to be known First the Sheriff may if he will appoint speciall Bailiffs that is others besides the common Bailiffs to execute the processe of the Court. Secondly some say a warrant from the Court by word may be good in these cases but it is not safe to trust to such a warrant but to have it in writing Thirdly the officers that have any precept to execute must do it with all care and when done or not done give an account and make a return of it especially if they take goods in execution otherwise it is dangerous for perhaps by the not return the Act of the officer may become unlawfull Fourthly in taking of goods they must be reasonable Fiftly they may enter into a close or into any house of any other mans the door being open to take the goods of any man there upon any precept Sixthly they may take the goods of any man in any place within the County in another mans house or ground as well as in his own Seventhly they are to take upon execution so much of the goods as will satisfie the execution and bring them into the next Court where they must be prised Eighthly they are not to proceed in any case after it is removed into another Court Ninthly if the Sheriff or any of his officers shall procure others to commence suits against any person and shall cause them to resort to this Court. The party attached upon any such suit may replieve his distresse so taken and remove the suit before Remove the Justices c. Before whom if the Sheriff be convicted of such procurement he shall be amerced grievously to the Lord Protector and shall answer to Amercement the partie grieved treble damages Tenthly the Sheriff his Shire Clerk or deputies shall Estreates make no estreats to leavy the said Sheriffs
Action of the case him and recover his damage by it Seventhly if the things distrayned be put by him that did distrayn them in a place where the Sheriff cannot come at them to make a Replevin as a Castle or the like he may take the power of the County and after demand beat down the Castle to take them and the owner of the goods shall recover double for his losse what ever it be And if the goods be put in a Castle or driven into another County or other place where he cannot deliver them upon the Replevin or Retorno Habendo he may grant a precept in the nature of a Withernam to whom he will to take Withernam the parties own goods Or if the Sheriff command the Bayliff of the franchise to make deliverance and he return that he cannot come at them the Sheriff at the next County Court may enquire of it by inquest of office and if he find it true he may of his own authority grant a precept in the nature of a Withernam to the Bayliff to take the parties own goods The which goods the Sheriff or Bayliff may either keep or deliver to the Plaintiff to keep at his choice But the defendant is to pay for the keeping of them before he have them again And if the Sheriff coming to make a Replevin and the party that hath the distresse clayme propriety in the goods for himself or for himself and another of his Master the Sheriff cannot proceed till this question be decided by a Proprietate Probanda Proprietate probanda Which is a writ lying where the Sheriff is coming to make a Replevin by writ or without before or after Gager de deliverance and the party that hath the goods and distrayneth them claymeth them for himself or his Master for whom he destrayned as their own then the Sheriff can proceed no further in the Replevin untill the Playntiff have sued out this writ which if the writ were had out of the upper Bench or common pleas may be had thence else out of the Chancery and thereby the Sheriff may try the property and if he have no property that pretended it then the Sheriff may go on in the Replevin If he had he must surcease for in all cases of Replevin the Plaintiff ought to have the generall or speciall property of the goods at the time of the taking For a Replevin lyeth upon either property It is therefore a good plea in a Replevin that the property is to the Plaintiff and a stranger but this finding of the Sheriff by this writ is but an inquest of office and therefore if it be thereby found against the Plaintiff yet may he have a writ of Replevin to the Sheriff and if he retain the clayme of property c. yet shall it proceed in the Court of common pleas where the property shall be put in issue and finally tried But a man cannot clayme property by his Bayliff or servant because if it be found against him he shall be fined that so doth which the Lord cannot be unlesse he clayme himself Eighthly this suit after it is once brought into the Court and the defendant which is the party that took the distresse doth appear is to be determined in this Court But according to the plea ministred by that party it becomes reall or personall For where there is property claymed it is personall But if the defendant justifie the taking as in his freehold or for services or rent behind or the defendant avow for damage fesant and the Playntiff justifie by reason of common of pasture then it is reall And then there can be no further proceeding there except it be upon a justicies but the case must be removed by a writ of recordare which must be read and allowed in the Court That the Plaintiff in the Replevin may have notice of the Court wherein it is removed and of the day that he do then appear and declare there against the taker or else he will have a returno habendo And then is the defendant to make his Avowrie and set forth by what right or for what cause he took the cattels Tenthly for an Avowrie is Avowrie where one doth estrayne another for rent or other cause and the party estrayned sueth a Replevin against the taker then he must justifie and avow in his plea the lawfull taking of them and shew why he took them whether in his own right or a servant or Bayliff to another And upon this the Plaintiff doth usually joyne issue and so they go to tryall commonly by a Jury Eleventhly if after the Replevin brought the Plaintiff whose goods be taken do make default or be non suited before declaration or the like or judgement be given against him he that distrayned the beasts shall have them delivered to him again by the writ of Returno habendo Returno habendo And this writ must have this clause inferted in it That the Sheriff shall not deliver the goods without writ wherein mention shall be made of the judgement And hereupon the Plaintiff if he will may have a judiciall writ to the Sheriff to deliver the beasts to him Twelfthly where a plaint is Second deliverance removed out of the County Court or Court Baron by Pone or Recordare into the common Bench 〈◊〉 after the Plaintiff in the Replevin is nonsuited before any Avowrie made notwithstanding this nonsuit the party that distrayned may have again the same distresse and no other by this writ which is only to revive the first suit and the defendant cannot have a recaption in this case for a double distresse And this is called second deliverance after which had and tryall thereupon or that the Plaintiff be again non-suited before declaration Return Irreprevisable shall be awarded Return irreprevisable to the avowant then he may make his attorney to the intent to ground a writ to enquire of damages or he may hold the beasts as a distresse till he be satisfied and if any returno habendo go forth before this writ this is a supersedeas to it and the Sheriff may not meddle upon it 1. If after one return awarded a return shall be another time awarded there shall be no more Replevins granted And if upon this default the second time or otherwise the defendant be adjudged to have a new return the distresse shall remain Return irreplegiable Irreplegiable Where one hath sued a Replevin Gager de deliverance and yet hath not the goods delivered and the other avoweth now he may shew this in pleading that the defendant is still possessed of the goods pray that he may put in pledges for the deliverance which when they come to issue or demurrer shall be granted him or after avowrie if the defendant do not clayme propriety in them and then a writ shall go to the Sheriff to deliver them but where the avowant doth clay me propriety