Scire facias 00-02-00 Tolt 00-01-02 Precept upon an accedas ad curiam 00-02-04 Supersedeas 00-02-04 Procedendo 00-02-00 Warrant of Attorney upon every Distringas 00-00-02 Warrant of Attorney upon a Iusticies 00-00-04 Entring Essoynes for every name 00-00-04 Entring Imparlance 00-01-00 Copying the Declaration 00-01-00 Allowing the answer 00-01-00 Copying the answer 00-01-00 Allowing the Replication 00-01-00 And for copying the Replication and allowing the Rejoynder c. and so of the rest 00-02-00 Entring a Rule 00-00-04 Entring a Default by Nihil dicit 00-00-04 Entring a Non-suit 00-00-04 Dividing a Plaint for every name 00-00-04 Entring Judgment 00-02-00 Transcript upon a Plaint 00-01-08 Transcript upon a Writ of Iusticies 00-03-04 Allowing a Recordare 00-04-00 Allowing a Pone 00-04-10 Allowing a Writ of False Iudgment 00-06-08 Fees to the Attorney FOr drawing every Declaration 00-01-00 Drawing every answer 00-01-00 Drawing the Replication 00-01-00 Drawing Rejoynder 00-01-00 Drawing Sur-rejoynder 00-01-00 For every Court day wherein he proceeds in the Action allowed as his Fee 00-02-00 Fees to the Bayliff for executing of Processe FOr executing a Distringas of the Plaintiff 00-00-04 and of the Defendant 00 00-08 A Duces tecum of the Plaintiff 00 00-04 And of the Defendant 00-00-08 A Iusticies of the Plaintiff 00-01-00 and of the Defendant 00-02-00 A Replevin of the Plaintiff 00-02-00 A Venire facias 00-02-00 If tried for the Habeas corpora 00-02-00 A Fieri facias 00-02-00 A Scire facias 00-02-00 The Order of the Judges of Assize at York the 24. day of July 1654. concerning Essoins illegally returned into this Court. WHereas of late Judgements have been surreptitiously obtained in this Court by reason of Essoins unduly brought into the Court by Bailiffs or their Deputies and others after attachment of goods for appearance which pretended Essoins being afterwards disavowed by the defendant have occasioned sundry complaints and suits when the defendants goods were taken in execution for preventing whereof it is ordered upon advice and consultation had with the Judges of Assize at Y this day that henceforth no common Essoin shal be entred and allowed by the Court to save a default unlesse it be warranted in writing under the proper hand-writing or under the hand seal or mark of the defendant thereby specially authorizing the party being the Essoiner to cast such Essoin for him and in his name for the truth of which subscription or sealing the same Essoin is to be sworn in open Court and no Essoin is to be admitted or received from henceforth being not affirmed and sworn unto and so entred upon the back of the warrant of attachment which is to remain upon the file amongst the Rolls or proceedings of the Courr and if any other person not being a Bailiff shall be the Essoiner he is to bring the like warrant from the Defendant in writing as is aforesaid and be sworn for the truth thereof which is to remain in Court as aforesaid And no jugdement shall be given where there is no other appearance but an essoin Unlesse the Essoin shall appear to be warranted as aforesaid To swear to warrant Essoyns in this Court is contrary to the Statute of Marlbridge cap. 19. which saith De essoniis autem provisum est quod in Com. c. nullus habeat necesse jurare pro Essonio suo warrantizand Of the nature and Return of those Writs that do remove actions out of this Court into superiour Courts WRits removing suits out of this Court may be without shewing cause in the writ if the remove be by the Plaintiff but not without shewing good cause if it be by the Defendant As that the suit is for Charters of land or for inheritance or for freehold of Land or any titles of Land or actions touching life or actions to cause one to render an accompt or trespass vi armis all which are not within the cognizance of the Court. Or that he before whom the action depends is a favourer of him that is on the other side or that the Defendant avoweth for damage feasant and the Plaintiff doth justifie for common of pasture which is a plea touching Freehold and thrrefore the prosecution in this Court ceaseth First of a Recordare facias loquelam A Recordare is a writ issuing out of the Chancery directed to the Sheriff commanding him to send a plaint that is before him in his County Court without writ of Iusticies into the Court of Vpper Bench or Common Pleas to the end that the cause may be there determined And the Shiriff is hereupon to summon the other party to be in that Court into which the Plaint is to be sent at a day certain And of all this he is to make a certificate under his own Seal and the Seals of four Suitors of the same Court By vertue of this Writ to me directed at my County of Y. held at the Castle of Y. within written such a day and year to be Recorded I caused the Plea of which within is made mention which appears in a Schedule to this Writ annexed and that Record I have before the Iustices within written at the day and place within contained under my Seal and the Seals of W. H. E. R. c. four good and legall Knights of the same County of them who at the Record present were and to the parties within written that day I have prefixed that then they be there in that Plea as just it may be to prosecute as within to me is commanded The residue of the Execution of this Writ appears in a certain Schedule to this Writ annexed At my County Court held at the Castle of Y. in the County aforesaid such day and year before I. R. M. L. I. S. and S. D. four Suitors of the said Court amongst other matters is contained R. S. complaineth against B. W. of a Plea of debt or as the case requires I. B. Esq Sheriff pledg of prosec I. S. I. D. In testimony of c. By vertue of this Writ to be recorded I have caused the Plea which is in my County without Writ of Oliver Lord Protector c. betwixt A. B. and C. D. concerning the Beasts of him the said A. B. taken and unjustly detained as it is said and that Record I have before the Justices within written at the day and place within contained under my seal and the seals of E. B. S. D. R. B and I. L. four legall Knights of my County of those who at the Record present were as it appeareth in a certain Schedule to this Writ annexed according to the Exigency of this Writ At my County held c as before By vertue of this Writ in form within written I came to the Court within written and in that full Court to be recorded caused the plea within written and that Record as it appeareth in a Schedule to this Writ annexed I have before the Justices within written at
County of Y. there held c. the aforesaid I. H. and the rest of the Defendants within named the fifth time exacted were at which day the aforesaid I. H. appeared and rendred himselfe to the prison of his Highness c. of the Castle of Y. whose body before the Iustices within written at the day and place within contained ready I have as within to me is commanded but the rest of the Defendants within named appeared not therefore c. as above And besides I. S. who hath rendred himself to the prison of c. of the Castle of Y. whose body before the Justices within written at the day and place within contained ready I have as this Writ exacteth and requireth And besides I. C. who dead is will not appear therefore by Judgement c. and the aforesaid T. C. waved is in presence of T. C. and F. W. Coronors of c. of the County aforesaid At the County c. 1. 2. 3. 4. exacted he was and hath appeared and rendred himself to the prison of c. of the Castle of Y. where so sick he is that fore fear of death him before the Justices within written at the day and place within contained have I cannot The Return of the Writ of Proclamation BY vertue of this Writ to me directed at my County of Y. held at the castle of Y. within written on Monday c. the year c. within written the first time to be proclaimed I caused And at my County of Y. held at the Castle of Y. aforesaid in the said County of Y. on Monday c. the year c. within written the second time to be proclaimed I caused as also at the general Sessions of the peace held at Skipton for the West riding of the said County within written on Tuesday viz. the 12. day of Sept. aforesaid the year c. within written publickly to be proclaimed I caused that I. C. and all other the Defendants within named themselves to render to the within named Sheriffs of London so that the same Sheriffs have their bodies before the Justices within written at the day and place within contained as this Writ exacteth and requireth The manner of proceeding upon the Writs of Recordare Pone Writ of False Judgment c. in the Common Pleas after removall out of the County Court YOu must repair to the County Clerk or his Deputy and demand a Return of the Writ of Recordare or Pone If upon the return the Defendant appear then must you declare and when your Declaration is drawn enter it upon a roll in one of the Prothonotaries offices and see that it be docqueted together with the number of the roll If the Writ be returnable in the begining of a term especially in issuable terms the Desendant is to answer the same term unless the Desendant hath Emparlance to plead until the following term Rules to answer must be entred in the Remembrance in the Prothonotaries Office entring in the Margent or over the head of the Rule that if the Defendant do not plead within some few dayes let Judgement be entred And if no plea be brought in within the time then may you sign Judgement with the Prothonotary in default of answer If the Defendant appear not upon the return of the Writ then may the Plaintiff have a Procedendo to carry the cause back again into the County Court If the Plaintiffs Attorney declare not against the Desendant upon his appearance within a reasonable time of the Term then may the Defendants Attorney enter a Rule in the Bill of Pleas against the Plaintiff to declare and if he declare not then may he enter a Non prosec and sign it with the Prothonotary and costs given for the unjust vexation If the Defendant plead generall issue then must the Attorney for the Defendant set his hand to the Doquet book of the Plaintiffs Attorney who draws up the plea and makes a Copy of the issue and delivers it to the Defendants Attorney and then they usually give notice of triall If the Defendant plead specially he is to bring it to the Plaintiffs Attorney under a Serjeants hand and if the Plaintiff reply specially it must likewise be under the Serjeants hand the like upon a Demurrer to a Declaration and Rejoynder in Demurrer If your triall be by Nisi prius at the Assizes in the Countrey and the Jury appeare not full upon the Pannel then may you require a Decem tales de circumstantibus viz. ten of the standers by to fill up the Jury or more or lesse as is requisite which Tales must be mentioned upon the return of the Postea and the Judgment upon it in the Issue Roll. Having entred your Declaration with the Issue joyned in the Prothonotaries Office then make out a Venire facias upon your Issue and get signed with the Prothonotary and seal it then get it returned by the Sheriff of the County where the action is laid and upon the return of it sue forth an Habeas corpora and deliver the same to the Sheriff to summon the Jury and get it returned before the Assizes In suing forth your Nisi prius ingrosse your Record according to the copy of the Issue made up and the entry of it upon the Roll in the Prothonotaries Office and examine it if it be upon an Issue joyned the same Term whose hand must be to it then carry the same to the Clerk of the Treasury to signe and make up the Record If the Issue was entred of a Term past then must you deliver the paper Book of the Issue to the Clerk of the Treasury to examine the same by the Roll and to make up the Record which must be signed by him then must it be sealed with the Lord chief Iustice of the Court and then deliver it together with the Hab Corp Iur. returned by the Sheriff to the Clark of the Ass for that County where it is to be tried paying the Judges Then retain Councel and have your witnesses ready for the trial The triall being had and verdict passing for your Client the next Term you are to call of the Clerk of the Assizes for a return of the Postea and thereupon the Prothonotor will assesse costs and cause Judgement to be entred upon which you may have Execution by Capias ad satisfaciendum Fieri facias or Elegit c. according as you desire and as the nature of the action brought doth allow or require Note that a Capias ad satisfac is only against the body who must be imprisoned until satisfaction be made and if the Defendant cannot be found the Plaintiff cannot have another Execution 20 E. 2. for he may chufe at the first whether he will have a Capias or an Elegit but if he take the Capias he shall not have the Elegit afterwards nec è converso 15. H. 7. 15. The Writ of Fieri
facias is onely against the goods as Leases for years or moveable goods as Corn Houshold stuffe Cattle Apparrel Money Plate c. and it ought to be sued out within the year after the Judgement Co. 3. 13. After a Fi. fa. a man may have an Elegit but on the contrary after the Elegit he cannot have a Fi. fa. because the Elegit is of a higher nature then the Fieri facias An Elegit is a Writ whereby the Plaintiff is to have Execution of the half of all the Defendants lands and chattels except Oxen and beasts of the Plough till the debt and damages be wholly levied and paid to him and during the term he is tenant by Elegit Terms of the Law The Proceedings upon the Writ of False Judgement YOu must call of the County Clerk for a return of the Writ together with the whole Record of all the proceedings from the original and beginning of the cause in the County Court The Writ being returned you must assign Errors and take Copies thereof and thereupon sue forth a Scire facias to the Plaintiff in the Action to hear Errors To which the Plaintiff may appear and plead the common plea which is that The action nor proceedings in the County Court are in nothing erroneous Then must the Desendant endeavor to get a Rule or day given for the arguing of the same Errors But if the Defendant doth delay and doth not call for a return of the writ nor proceed then the Plaintiff may sue forth another Scire facias against the Defendant to shew cause why he should not have Execution upon the Judgement had in the County Court And if at the Return of the second Scire Facias Errors be not assigned then Judgment is confirmed in that Court into which the Writ is returnable If Errors be found and allowed to be sufficient and good then is the said Judgment to be reversed and made void But if Errors be not found good then is the Judgment in the County Court affirmed and further costs for delay of Execution allowed to the Plaintiff who may presently sue forth Execution out of that Court into which the Writ was returned against the Defendant Note that if the Judgment be reversed and made void yet notwithstanding it takes not away the Plaintiffs cause of action for he may commence a new action against the Desendant for the same cause The same proceedings are upon an Accedeas ad Curiam See the Record upon it The manner and form of drawing up Records upon a Writ of False Judgment and Accedeas ad Curiam THe Sheriff is commanded that if A. B. shall secure the same Sheriff to prosecute his plaint then in his full County he cause to be recorded the plaint which was in the same County by writ of his Highnesse the Lord Protector c. between W. B. and the same A. B. in a certain Trespasse upon the case to the same W. B. by the same A. B. done c. And whereupon the same A. B. did complain that False Judgment was done to him in the same County and that he should have here at this day that is to say Octab. pur under his Seal and by four lawfull Knights of the same County who should be present at the Record and that he should have here the Summoners the names of the four Knights this Writ and another Writ And now here at this day came aswell the same A. B. by Simon Dunn his Attorney as the said W. B. summoned c. by Phit Prince his Attorney And the Sheriff to wit Geo. Mar. Esquire now returneth that the same A. B. had found to the same Sheriff Pledges to prosecute his said Writ to wit Iohn Doo and Ric Roo And that he by vertue of that Writ to him directed at his County held at the Castle of York in the County asoresaid the 10. day of May in the year of our Lord 1657. made the same plaint to be recorded which was in the same County between the same A. B. and W. B. and the Record of the same plaint before the Justices here at this day under his seal and the seals of H. M. and four lawfull Knights of the same County hath ready of those who were present at the Record And that he summoned the same W. B. that he should be here at this day to hear the Record by R. S. and F. L. as by the same Writ to him it was commanded c. which said Record followeth in these words OLIVER Lord Protector c. To the Sheriff of York greeting W. B. hath requested that A. B. of C. in your County husbandman although the same W. B. be our true and faithfull subject and as our true and faithfull subject from the time of his nativity hitherto hath carried and behaved himselfe and of good name and same among many of our saithfull subjects was noted called and reputed notwithstanding the same A. B. not ignorant of the premisses the same W. B. unjustly to vex and him of his goods name fame and opinion whereof from his nativity to deprive conspurgate And the same W. B. into perturbation vexation and infamy amongst his neighbours and many other saithfull subjects and people of this Commonwealth to induce plain salse and scandalous words of the same W. B. at C. in the presence of many faithfull subjects and people of this Commonwealth said published and pronounced in these English words following to wit W. B. the same W. B. meaning hath stoln my horse By speaking publishing and pronouncing which same words the same W. B. not only in his good name and same is hurt but also in his doings and businesses with honest persons with whom the same W. B. in buying selling and lawfull bargaining before used is much prejudiced and made worse to the no little damage and losse of the same W. B. c. And therefore we command you that you hear the said Plaint and afterwards cause the same to be with-drawn that we hear no more clamour thereof for defect of Justice Witnesse c. Pleas held at the Castle of York in the County of York upon Monday the second day of June in the year of our Lord 1657. AT this Court W. B. complaineth of A. B. in a plea of Trespasse upon the case W. B. by P. P. his Attorney complaineth of A. B. in a plea of Trespasse upon the case for that to wit that whereas the same W. B. is a good true and faithfull subject of this Common-wealth of England from the time of his nativity hitherto hath carried and behaved himself and of good name same credit and reputation honestly with good and grave men as well his neighbours as other saithfull subjects of the said Cōmonwealth was had noted called and reputed without any falshood thest perjury selony deceit or stain of any other fault or hurtfull crime unspotted and untouched by the whole time aforesaid carried
is aliorum negotiorum gestor for qui per alium facit per seipsum facere videtar likewise these Statutes following do institute Attorneys in the County Court viz. 6 E. 1. cap. 8. 20 H. 3. cap. 10. c. F. N. B. 156. I could instance many more but I hope these are sufficient to stop the black mouth of a scurrilous Antagonist In their practice they ought to be honest and just according to their office and oath not exciting men to Suits especially such as are forrain and illegall nor for little offences and small debts nor voluntarily argenti gratia delay their Clyents nor demand any sums of mony for the prosecution of the Action otherwise then is allowed by the Court. Of Bayliffs A Bayliff is a Servant or Minister of the Law and by consequence a Servant to the party at whose Suit he is to distraine the goods of any one Therefore he ought to be true faithfull and vigilant in levying of Distresses he ought not to be exoculated with common rurall bribes as too many of them are His office is thus described by Fleta Balivus esse debet in verbo verax in opere diligens fidelis ac pro diserto appruatore cognitus plegiatus clericus qui de communioribus legibus pro tanto officio sufficienter se cognoscat Et qui sit ita justus quod ob vindictam seu cupiditatem non querat versus aliquos c. He is to be contented with his wages and fees allowed him which are certain and known and as I have described particularly being usually paid if he take more then he ought or commit any error in the Execution of his Office contrary to the tenure of his Precept then is he to forfeit forty shillings and to be convicted thereof by the examinations of the Justices of Peace or any of them 14 E. 3. cap. 9. And the Sheriff ought not by his oath to have any Bayliff but such as he will answer for and such as be true and sufficient men in the County and make each Bayliff take an oath for the true execution of his office but such things are now not taken notice of And by the Statute of 27 Eliz. cap. no Bayliff or other person ought to take a Distresse nor to execute any Processe untill he be sworn but now common experience and practice at this day bears testimony to the contrary Alfred once King of England hanged Judge Arnold for saving a Bayliff from death who had robbed the people by Distresse and for extorting of Fees If the like Law were executed upon some of our grand Malefactors it would make the Remainder more honest What Actions may be brought in this Court HAving precipitated my self thus far before I enter upon the Proceedings of the Court I will demonstrate the grounds and cause of Proceedings and that is Actions which is the form of a Suit given by Law to recover a mans right or actio nihil aliud est quam jus prosequendi in judicio quod sibi debetur Therefore what Actions will hold in this Court take as followes All Actions of debt either upon an account made by the parties for wages after a hire sums of mony owing or due from one man to another whether by writings or otherwise it is grounded sometimes by writing as an Obligation Bill Covenant or other especialty sometimes without writing as an Arbitrament Rent mony lent Parol Contracts or the like All Actions of Detinue Trover and Conversion deceit upon a Warranty a Delivery Nusance Case for scandalous words case upon Assumpsits and other Actions of the case as for a Dog killing Cattell abusing a Distresse spoyling my Goods c. Actions of Trespass Assault and Battery c. All these Actions would afford very much matter to treat of at large but least this Treatise should swell beyond its limits I will refer you to the reading Fitzherberts Natura brevium which doth learnedly treat of the nature of all Actions that lye in any Court of Judicature Within what time Actions must be brought ALL Actions of debt grounded upon any lending or contract as Book-debt without especialty and for Rents in arrear all Actions of Trespasse quare clausum fregit Actions of Trespasse Trover Detinue and Replevin for taking away Goods and Chattels Actions of account all Actions of the case except Actions for Slander which shall be sued must be commenced and brought within six years after the cause of such Action or Suit accrued if the Plaintiff be then of full age discovert compos mentis at Liberty out of Prison and in England otherwise within such time after he becomes so and not after All Actions of Trespasse for Assault Menace Battery wounding and imprisonment within four years after the cause of Action and not after All Actions of the case for scandalous words within two years next after the words spoken and not after Who may bring Actions and who not IDiots mad men or such as have lucida intervalla such as are deaf and dumbe or any other man woman or child except persons disabled by Law being wronged may bring the proper Action appointed for remedy in that case and all or any of these wronging others may be sued And if an Idiot sue or be sued he must doe it in person An Infant must sue by Prochein amy and being sued must defend by Guardian A Feme covert cannot sue but with her Husband An outlawed person is disabled to sue any Action against any man in any Court of Law or Equity yet as Executor he may sue because it is not in his own right but in trust for another but any man may sue him by Coo. Sup. Litt. 128. A man that is attainted in a Praemunire may not sue in any Action Idem 129. And a man that is a convict recusant is disabled so long as he so continues No Barretor can maintain any Action in this Court nor have Judgment unlesse it be required by all the Suitors West 1. cap. 3. But note all these disabilities remain during the continuation of the same impediment Of Pledges in this Court PLedges are absolute except it be for Forrainers or such as live out of the County or out of the Jurisdiction of the Court or such as are unmarried that have no goods distrainable and it is if these be Plaintiffs but if the Defendant should non-suit the Plaintiff and have Judgment against the Plaintiff and his Pledges I never yet saw the forme of the Judiciall Precept that ever issued out to levy the costs upon the Pledges goods Of the Proceedings in the Court BEcause I would not have the Country and young Practisers ignorant of the Proceedings in the Court which is the life of practice I thought it necessary to make an Abridgment of the terms of Law now used in the Proceedings And first of Appearance because it is the first thing done after goods attached The first thing the
Defendant in any Action or Suit is to do is to appear and shew himself in person or by an Attorny in the Court to answer the Action and defend the Suit He may also appear by an Essoin which is an excusation coming from the French word Exoine it doth delay the cause a Court day longer the common Essoin is de male vener and if he do not appear the next Court then it passeth by default Judgment entred and Execution issues out against his Goods and Chattels But after the Defendant hath once appeared in the Court by an Attorny there shall be no Essoin allowed But if he appear neither by an Attorny nor by Essoin then further Processe issues out against his Goods and Chattels viz. The Precept of Duces tecum and attachment and Distresse upon attachment infinite untill he do appear After the Processe executed the next Court the Plaintiff is to appear and file his Declaration to shew his cause of Action or matter of complaint in which must be shewn who complaineth and against whom for what matter how and in what manner the Action grew between the parties and at what time and place the wrong was done and in conclusion he must aver and profer to prove his Suit and shew the damage he hath sustained by the wrong done unto him Speciall care ought to be had that it be drawn in manner and form yet by the Statute of 36 E. 3. cap. 15. A Declaration shall be good if it have matter of substance though the terms he not apt however to avoid doubts and that the Attornies may not depend altogether upon uncertainties let them be diligent in taking right and full instructions from their Clyents and inform themselves of every puntilio which may be materially incident to the case that so they may know what manner of Action is most proper to be brought on the behalf of their Clyents In some cases manner and form is chiefly to be looked at but in other some not altogether so materiall As if an Action of debt be brought of the sale of a Horse for five pounds where the bargain was for two horses the Defendant pleads that he oweth him nothing in manner and form the Jury ought to find for the Defendant for that that the bargaine was for two horses for five pounds fo manner and form there is materiall and parcell of the charge and so it is in every case where the Action varies from the bargain or speciall matter But if an Action of the case be brought by the Husband alone upon an Assumpsit to him by R. the Desendant saith he did not assume in manner and form and the Plaintiff gives in evidence of an Assumpsit made to his wife and his agreement to it afterwards this is good and manner and form is not materiall If an Action be brought before there is any cause of Action the Declaration is insufficient But if a Trespasse was done the fourth day of May and the Plaintiff declareth the same to be done the fifth or the first day of May when no trespasse was committed yet if upon evidence it salleth out that the Trespasse was done before the action brought it sufficeth 19 H. 6. 47. 5 E. 4 5. 21 E. 4. 66. And Littleton saith That the Jury may finde the Defendant guilty at another day then the Plaintiff supposeth for the Law of England respecteth more the effect and substance of the matter then every nicity of forme and circumstance Apices juris non sunt jura Note that in actions of debt upon Emisset for Wares for Money or other things lent upon an In simul computassent actions of Trespasse Battery or upon the case c. you are not tyed to lay the certaine day but you may lay it any time after the cause of action accrued If an action upon the case be brought upon an Assumpsit the Plaintiff must declare upon the whole promise made and not upon part of it else the Declaration is not good Mich. 22. Car. b. r. If there be words in a Declaration which have no signification the words shall be adjudged to be void words and shall not hurt the Declaration but the Declaration shall be taken as if those words were left out of the Declaration Hill 23. Car. B. R. Pasc 24. Car. B. r. A Declaration ought not to shew a thing by implication it must be set forth expressely If the Plaintiff do alter his Declaration after the Defendant hath pleaded to it the Defendant may alter his Plea For by the amendment of it it may be so altered in matter that it may require a different answer from what was sormerly pleaded and in that case if he should not amend his Plea he might be triced sor want of a good Plea Prac. reg fo 235. A Declaration is sometimes called a Count as Count in debt Kitch 281. Count in Trespasse Brit. cap. 26. Count in an Action of Trespasse upon the case for a slander Kitch 251. But a Count is more properly used in Reall than Personall Actions And a Declaration more applyed to Personall than Reall F N. B. 18. a. 60. D. N. 71. a. 191. c. 217. a. If after Processe executed the Plaintiff do not appear and file his Declaration and the Defendant doth appear upon such default the Plaintiff is non-suited and the Defendant may have Judgment and Execution for his costs In every case where the Plaintiff may have costs against the Defendant there if the Plaintiff be non-suit or a Verdict passe against him the Desendant shall have his costs as in Trespasse Debt Covenant by Specialty or upon Contract Detinue Accounts Actions upon the case or upon the Statute for personall wrongs 23 H. 8. cap. 15. Administrators nor Executors shall not pay any costs neither upon Non-suit or Verdict because their Actions are brought upon Debts or Contracts not made between them and the Defendants But if they bring Actions for things done to themselves as for the taking away of goods from them c. and they be Non suit or Verdict passe against them in this case they shall pay costs After the Plaintiff hath appeared and Declaration filed upon the appearance of the Defendant Emparlance is to be entered Emparlance is when the Defendant being to answer the Suit or Action of the Plaintiff desireth some time of respite to advise himself the better what he shall answer being nothing else but a Continuance of a cause till a further day Now to demonstrate what the word Continuance signifieth it is after a Suit is begun and the Plaintiff hath declared he must continue his Suit from Court day to Court day or else the adverse party may take advantage of it and this is called a Continuance being but onely a proroguing of a Suit from time to time to keep it in being And this is by the Act or order of the Court and
some times by the agreement of the Attorneys of both parties The Rule or dies datus is when further day is given to the Plaintiff to put in his Declaration or to the Defendant to put in his answer the time given is usually fourteen dayes or more or lesse according to the order of the Court and the agreement of their Attorneys The next Court after the filing of the Declaration and Emparlance given the Defendant is to put in his answer which he pleadeth and saith in bar to avoid the Action of the Plaintiff either by consession and avoidage or denying the materiall parts thereof It must be legall full and perfect for a bad or insufficient plea is in Law as no Plea If Issue be not joyned upon the answer then the Plaintiff is to file his Replication to the answer of the Defendant which must affirme and pursue his Declaration Then the Defendant must put in his Rejoynder to the Plaintiffs Replication which must pursue and confirme his answer for every Rejoynder ought to have these two properties specially that is it ought to be a sufficient answer to the Replication and also to follow and enforce the matter of the Bar. If the parties be not at issue by reason of some new matter disclosed in the Defendants Rejoynder that requireth answer then may the Plaintiff Sur-rejoyn to the said Rejoynder if there be cause but it salleth out very seldome This Sur-rejoynder is a second defence of the Plaintiffs Declaration opposite to the Defendants Rejoynder Demurrer cometh of the Latine word Demorari to abide and therefore he who demurreth in Law is said he that abideth in Law moratur or demoratur in Lege when so ever the Counsell of the party is of opinion that the Declaration or Plea of the adverse party is insufficient in Law then he demurreth or abideth in Law and referreth the same to the Judgment of the Court. Now there is no Demurrer in Law but when it is joyned and therefore when a Demurrer is offered by the one party as is aforesaid the adverse party joyneth with him and thereupon the Demurrer is said to be joyned and then the case is by Councell of both sides argued When the Declaration Answer Replication c. are defective in respect of some circumstance of time or place c. it may be remedied by consent of the Court or parties or by a motion to the Steward Non sum informatus is a formall answer of course made by an Attorney whereby he is deemed to leave his Clyent undefended and Judgment passeth for the adverse party It is a failing to put in answer to the Declaration of the Plaintiff in any Action by the day assigned which if a man do Judgment shall passe against him because he saith nothing to the contrary To an Action of Debt upon Specialty Not his Deed To an Action of Debt for mony lent c. He owes nothing by the Country To a Bond for performance of Covenants upon an Indenture or Arbitrament Not his Deed or not guilty To an Action of case upon an Assumpsit He did not assume To an Action of Trespasse Not guilty To an Action of Assault and Battery and Slander Not guilty To a Contract without Deed the Plea is Payment or an Obligation made for the debt c. To an Obligation the Plea is Payment c. but to plead payment to an Obligation without Acquittance is no Plea For an Obligation or other matter in writing may not be discharged by any agreement by word but by writing unumquodque dissolvitur eo modo quo colligatur But to plea d payment to an Obligation with Condition though no Acquittance by writing it is good for the Condition is in nature of a Defeasance to the Obligation To an Action of debt He owes nothing by the Country or by the Law or Paid If the Action be brought against an Executor or Administrator the ordinary Plea is that he never was Executor or hath fully Administred c. If the Suit be upon a Deed or Contract without Deed That he was within age when he made the Deed or Contract If it be against a woman That she was Covert that is to say had a Husband when she made the Deed or Contract If upon an Arbitrament That there was no Arbitrament legally made or That he hath performed the Award If upon an Action of Trespasse Damage feasant That the Beasts came in by the default of the inclosure of the Plaintiff or That he hath little of Common there c If upon an Action brought for Rent That there is no rent in arrear c. To an Action of Detinue That he doth not detain the thing sued for A release or gift to him by the Plaintiff or That he did tender the thing sued for before Action brought That the De-fendant did deliver it to him as Pledge for ten shillings which he hath not paid c. To an Action of the case for Slander Not guilty or Justifie the words Cafe upon a Warranty That he did not warrant Upon a Bond or Bill plead Conditions performed by Threats Duresse Imprisonment c. Upon a Demise Not demised To Trespass Not guilty an Arbitrament Tender of amends before the Action brought c. If diverse men do a Trespasse and one makes a good accord this will discharge and be a Bar to all the rest Co. 9. 79. If Freehold be pleaded the Court in that case can proceed no further There are divers Pleas to Actions of Trespass some of one nature and some of another as justification c. If the Defendant have matter of Justification or excuse to plead he must be sure to plead it specially for if he plead the generall Issue viz. Not guilty it will be found against him But now by the late Act made the 23 of October 1650. The Defendant may plead the generall Issue of Not guilty or such like generall Plea and give the speciall matter in Evidence Where the Defendant is not constrained to plead a speciall Plea he may plead the generall Issue proper for the Action brought and give the speciall matter in Evidence For every Plea must be so framed that it may give a full answer to the matter set forth in the Declaration to wit all such as are materially to be answered unto If one be sued upon an Obligation he cannot be compelled to plead before he have Oyer of the Condition of the Obligation If an Action of Debt be brought for Rent upon an Indenture of Demise for years the Defendant may plead payment without shewing the Deeds for the Lease shall be intended to be in being at the time of the Action brought Trin. 24. Car. B. R. If an Obligation of an hundred pounds be made with Condition for payment of fifty pounds at a day and at the
day of June in the year of our Lord 1656. By the Sheriff If the Defendant do not appear the next Court after the Distringas executed then farther Processe issueth against him viz. a Duces tecum to cause him to appear If not upon the first Duces tecum he appear you may have an Alias Duces tecum and a Plures Duces tecum ad infinitum untill he appear and no other remedy here The form is thus Duces tecum Y. ss I. B. Esq Sheriff c. to all c. greeting I command you and every one of you joyntly and severally that you bring with you and have at the Castle of Y. at my next County Court all those goods and Chattels of R. B. which late by vertue of another Precept of mine to you first directed you distrained at the Suit of S. D. and that you farther distrain the said R. B. by his other Goods and Chattels in the said County so that he be at the Castle of Y. at my next County Court to be holden on Munday the c to answer to the said S. D. in a Plea of debt And have you then and there this Precept Given under the Seal of my office the twentieth day of July in the year c. If you have your Distringas or Duces tecum speciall Then the form is thus Speciall Y. ss I. B. Esq Sheriff of the County aforesaid to all my Bayliffs and their Deputies in and through the County aforesaid more especially to R. S. and T. W. my Bayliffs in this behalf specially deputed greeting c. Â then proceed as in the former Of the Writ of Justices THis Writ issueth out of the Chancery directed to the Sheriff giving him power to hold Plea in this Court in Actions for forty shillings or above and though it be directed to the Sheriff yet are the Suitors Judges It is called a Justices because it is a Commission and no originall to the Sheriff to do a man Justice and Right and though it be quod Justices B. yet the Sheriff is not Judge therein but the Suitors and a Writ of false Judgment lyeth upon their erroneous Judgment and it requires no return unlesse the Action be removed by a Writ of Recordare and then the Writ must be returned together with the Record The form of the Precept upon the Writ is as followeth Yo. ss G. M. Esq Sheriff of the said County to all and singular my Bayliffs within the said County and to their Deputies greeting By vertue of a Writ of Justicies of Oliver Lord Protector c. to me directed I command you and every one of you joyntly and severally that you or some of you do Justice to I. C. so that he be and appear at my next County Court to be holden at the Castle of Y. on Munday c. to answer unto E. L. in an Action of debt and that you or some of you certifie your doings herein Sealed with the Seal of my office the two and twentieth day of August in the year of our Lord 1657. By the Sheriff A Replevin IF any goods be taken wrongfully as before I have more at large declared then the party grieved may have a Replevin which must be made after this manner Yo. ss G. M. Esq Sheriff c. to all and every my Bayliffs c. greeting Because G. A. hath comed before me and given sufficient security to prosecute his Suit and make return of his goods if return thereof shall be adjudged Therefore by vertue of my Office I command you and every of you that you or some of you Replevie deliver to the aforesaid G. A. two kine which H. H. hath taken and unjustly detained against the said G. A. and his Pledges and also that you summon and take safe Pledges of the said H. H. so that he be and appear at the Castle of Y. at the next County Court there to be holden upon Munday c. to answer the aforesaid G. A. in an Action for the taking and unjust detaining of his said goods and that you or some of you then and there make return of your doings together with this Precept Given under the Seal of my Office c. And if the Cattell be not delivered by vertue of the said Replevin then the Plaintiff may have an Alias Replevin with these words vel causam mihi signifie with which Replevin must be made after this manner Yo. ss Alias Replevin G. M. Esq c. to all and singular my Bayliffs c. greeting Because G. A. hath comed before me and given sufficient security to prosecute his Suit and make return of his goods if return thereof shall be adjudged Therefore by vertue of my Office I command you and every of you as formerly I have commanded you that you or some of you Replevie and deliver to the said G. A. two Kine without delay you cause to be replevied or the cause to me you signifie wherefore my Mandates to you therefore directed execute you would not or might not which H. H. hath taken and unjustly detained c. as before in the other Replevin And if the Cattell be not delivered upon this Replevin nor shew sufficient cause why he did not then the Party may have a Plures Replevin vel causam mihi signific which must be made verbatim as the Alias Replevin was made and if return be made upon any of these Replevins quod averia elongat sunt ad loca sibi ignot ita quod averia ill ' praef G. A. non potuit deliberar then the Plaintiff may have a Withernam which must be made in this manner Yo. ss Withernam G. M. Esq c. to all c. greeting Because G. A. hath com'd before me c. as in the former I command you and every of you as diverse times I have commanded you that you or some of you replevie and deliver to the said G. A. two Kine which H. H. hath taken and unjustly detained and doth unjustly detain as it is said and that you upon diverse of my Precepts for Replevie to be made to you directed we have certified that the same two Kine elongated are to places unknown so that view of the same have you could not therefore I charge and also command that you take in Withernam Chattells to the value of the said two Kine of the Chattels of the said H. H. to be delivered to the said G. A. for the two Kine aforesaid elongated and also that you summon and take safe Pledges of the said H. H. so that he be and appear c. as before in the Replevin Yo. ss Alias capias in Withernam G. M. Esq c. to all c. greeting Because you have at my County Court held at the Castle of Y. on Munday c. the year c. to me returned that by vertue of my Warrant to you many times directed you came to the Pound of H. H. to the place where the
declared and this he is ready to verifie whereupon he prayes Judgement of the said Writ of Justicies and that the said Writ of Justicies be quashed c. Plea in Abatement for that the Plaintiff hath one name in the Writ and another in the Declaration ANd the said A. by I. R. his Attorney comes and prayes Judgment of the Writ of Justicies aforesaid because he saith that he is the same person against whom the said B hath brought his Writ aforesaid by the name of B. D. otherwise E. Yeoman and that the said B. is named John otherwise Henry and by the same name of B. D. otherwise E. the day of obtaining of the Writ of Iusticies of the said B. and alwayes afterterwards hitherto he hath been known and called and by the same name of B. D. otherwise against the said A. in his Declaration aforesaid now hath declared without that that the said B. is named or called Iohn otherwise Henry or by the same name of B. D. otherwise E. hath been at any time known or called and this he is ready to verifie whereupon he prayes Judgment of the writ of Iusticies aforesaid c. The Defendant justifies for horse-meat not satisfied in answer to a Declaration in Trover for the same horse ANd the said A. saith that he the same time in which the said horse in the Declaration aforesaid specified is supposed to come to his hands and by two years then next elapsed and ever afterwards and yet is a common Inn-keeper and holdeth a certain Inn called the George in the Parish and Town of Harwood in he said County of Y. and that one C. D. the twelfth day of August in the year aforesaid at the Parish and Town of the said H. came to the Common Inne of the said A. bringing with him the said horse into the said Inne which said horse the said C. D. the same twelfth day of August abovesaid untill the twenty fourth day of Iune in the year c. abovesaid in the Inne of the said A. remained at meat and that the said meat of the said A. eaten and consumed within the same Inne by the same horse between the said 12. day of August in the said year of c. and the said 24. day of Iune in the yeare aforesaid was worth eight pounds ten shillings of lawfull money of England And that no person within that time paid the said A. for the said meat neither compounded nor agreed with the said A. for the same whereupon certain L M. NO and others lawfull and honest persons the neighbors of the said A. and inhabiting and remaining within the said parish of H. in the County aforesaid at the request of the said A. afterwards to wit the 24. day of Iune abovesaid at the said Town and Parish of H. reasonably appraised the said horse at six pounds ten shillings and no more whereupon the said A. afterwards to wit the said 24. day of Iune in the year abovesaid at the aforesaid Town and Parish of H. retained that horse in his hands towards the satisfaction of the said A. for his meat aforesaid then and there did convert and dispose as it was lawfull for him to do with it without that that the said horse came to the hands of the said A. in the aforesaid County of L. or any other place without the said Town and Parish of H. in the said County of Y. as the said C D. above against him complaineth and this he is ready to verifie whereupon he prayeth Judgment if the Plaintiff his Action c. The Defendant pleads leave and liberty granted to him by the Plaintiff to enter and feed his Cattel ANd the said A. as to the aforesaid Trespasse as to the breaking of the Close aforesaid and the eating c. with his cattel c. and the treading c. with his feet above supposed to be done saith that the same B. before the same time in which c. to wit the 22. day of May in the year c. at Skipton aforesaid in the County aforesaid and within the liberty and jurisdiction of this Court gave liberty to the said A. into the tenements aforesaid with the appurtenances of new assigned to enter and put in his Cattel aforesaid the grasse in the tenements aforesaid with the appurtenances of new assigned then there growing to eat up By vertue of which said liberty the same Defendant the same time in which c. into the tenements aforesaid with the appurtenances in which c. entered and his Cattel aforesaid to eat the grasse there put And the same Cattle the same time in which c. by vertue of the liberty aforesaid the grasse aforesaid in the tenements aforesaid with the appurtenances did eat tread down and consume which said breaking of the Close aforesaid and eating treading down and consuming of the grasse aforesaid with the Cattel aforesaid in the tenements aforesaid with the appurtenances above newly assigned and the treading and consuming of the other grasse aforesaid in the same tenements with the feet walking by vertue of the liberty aforesaid and for the cause aforesaid in form as aforesaid done is the same breaking of the Close c. And this c. The Plaintiff replies de injuria propria and traverseth the liberty And the Desendant justifies he gave the liberty and issue thereupon The Defendant justifies in Replevin the taking of the Cattel for Rent in arrear ANd the said A B. by S D. his Attorney cometh and defendeth the force and injury when c. and doth well avouch the taking of the said Cattel in the said place in which c. And justly c. because he saith that the said place in which c. is and from the time of the said taking and before was four acres of Land in M. aforesaid and saith that long before the time of the said taking before supposed to be done and at the same time the said A B. was seized in his Demesne as of fee of one Messuage one Garden and four acres of Land and one acre of Wood with the appurtenances in M. aforesaid whereof the said place in which c. is And at the said time in which c. was parcel and so being thereof seized that same Messuage Garden Land and Wood with the appurtenances long before the time of the taking aforesaid that is to say at the Feast of the annunciation of our blessed Virgin Mary in the year c. at M. aforesaid demised unto the aforesaid C D. to have to him from the same Feast as long as it should please him the said A B. yielding therefore yearly unto the said A B. as long as the said C D. should have and ocupy the said Messuage Garden Land and Wood 30 s. at the Feast of St. Michael the Archangel and the annunciation of our blessed Virgin Mary by equal portions yearly to be paid by vertue of which demise the
extended then it is otherwise and yet Quaere if the debt be forty pounds and nothing extended but a Lease for three yeares at five pounds a yeare or the like for then to that which remaineth the Elegit failes Hobert Rep. fo 58. If a Judgement be obtained against a man who thereupon sells his Land in whose hands soever the Land is it shall be lyable to satisfie that Judgement and to that end shall issue out a Scire Facias against the Terr-tenants If two Writs of Elegit be delivered to the Sheriffe hoth at one time the Sheriffe is to exend the moiety of all the Lands and shall give the moiety to the more ancient debt and then he ought to extend a moity of the other moiety and deliver it to the other for he cannot deliver a moiety of all the lands to one and the other moiety to the other See Attorneys Academy 109. Severall Elegits may issue into severall Counties where the Land lies If a man doth pray to have an Elegit to have the moiety of the Defendants Lands in Execution and the Sheriffe returned that he had no Lands whereupon he prayed a Capias to arrest the party but the Court would not grant it but if the Conusee c. would tarry till Lands did come to the Defendant or goods then c. But now he could not have a Capias nor a Fieri Facias And the causes that the entery in the Roll is that he hath chosen his Execution of the moiety of his Lands the which he must stand to because it is an Execution in the superlative Mich. 30 E. 3. 24. Capias ad Satisfaciendum what it is IT is a Writ by the Statute after Judgement lying where a man recovereth in an Action personall as Debt or Damages or Detinue and he against whom the Debt is recovered and hath no Lands or Tenements nor sufficient goods whereof the debt may be levyed In this case he that recovereth shall have this Writ to the Sheriffe commanding him that he take the body of him against whom the debt is recovered and he shall be imprisoned untill satisfaction be made to the recoverer And the Sheriffe must keepe him in salva et arcta custodia unlesse he intend to pay the debt himselfe For if a Prisoner be taken upon an Execution and shall afterwards let him goe at liberty before the Debt be satisfied c. The Creditor may have either an Action of Debt or an Action upon the Case against the Sheriffe and so recover his debt Fitz. 93. a. c. A man shall not have a Capias ad satisfaciend but where Capias lyeth in the Originall 11 H. 9. 18. vide Co 3. part Sir William Herbets Case 8 H. 6. 9. 22 Ed. 4. 22. Upon this Writ the Sheriffe can take nothing but the body of the Defendant for the Writ is to do no more but to take his body and to detaine him in prison till he hath satisfied the debt Co. 5. 8. When a man is in the custody of the Sheriffe by processe of Law and afterwards another Writ is delivered to him to arrest him who is in his custody presently he is in his custody by force of the second Writ by judgement of Law although he doe not actually arrest him for to what purpose shall he arrest him who is and was before in his custody Et lex non praecipit inutilia quia inutilis labor stultus And the words of the Capias ad satisfac are not onely quod capiat c. but quod salvo custodiat c. Ita quod habcat corpus c. So that although he cannot take him who he hath in his keeping yet he may safely keep him and therewith agreeeth 7 H. 4. 30. If two men be bound joyntly and severally in an Obligation the one is sued condemned and taken in Execution yet the other may not goe scot-free for hee may be likewise sued and taken in Execution untill the Plaintiffe be satisfied of his entire debt Coo. 5. 86. But if the Creditor be satisfied by the first that was in Execution the other may plead this satisfaction and be discharged 29 H. 8. tit Execut. b. 132. A woman recovering damages in a Writ of Dower she cannot have Execution of these damages recovered by a Capias ad satisfaciendum because the Capias was not in the Originall 11 H. 7. fol. 5. 2 H. 7. fol. 7. If a man be condemned in an Action of Debt and the Sheriffe hath him in Execution by a Capias ad satisfac by arresting him although the Sheriff do not return the Writ an Action of false Imprisonment is not to be brought against the Sheriffe for not making return of the Writ for the writ of Capias ad satisfca is not as other Capias that is So that you have his body before c. For in every Capias ad satisfoc the Judgement is given before and it is but to take Execution of the partie in which no answer nor return availeth Pasch 21 H. 7. fo 13. If one be in Execution by his body and the party doth release unto him all actions suits and debts he shall not have an Elegit nor a Capias because the duty is extinct 26 H. 6. Execution 7. Capias pro Fine Capias Vtlegatum Capias ad Valentiam THere are other three Writs of Capias after Judgement viz. 1 Capias pro Fine 2 Capias Vtlegatum 3 Capias ad Valentiam 1. The Capias pro Fine is where one being fined by Judgement unto the Protector upon some offence committed against a Statute doth not discharge it according to the Judgement by this is his body taken and imprisoned till he pay the Fine F. N. B. 76. Coo. 11. 42. 8. 60. If the Plaintiffe sue an Elegit after the Defendant is taken for the Protectors Fine he shall goe at large for such Execution doth discharge the body 7 H 6. 6. and 7. So if he sue by Fieri facias 18 E. 3. Execution 54. Yet upon Nihil returned he may have a Capias c. If the Defendant be taken upon a Capias pro Fine in Trespass and the Plaintiff prays that he may remain in prison for his Execution the Plaintiff not satisfied shall have an Execution afterwards So if one pray an Elegit of Lands and nothing is returned but a Rent he shall have an Elegit of the same 47 E. 3. Execution 41. See F. N. B. 246. Stat. 32 Hen. 8. Cap. 5. 2 Cap. Vtleg is a writ of Exec. after judgment of the Coroner of the county into which the Exigent Promation issued which lyeth against him that is outlawed by the which the Sheriffe upon the receipt thereof apprehendeth the party outlawed for not appearing upon the Exigent and keepeth him in salva custodia viz. in safe custody If a Capias utlegatum issueth
the heire of the Lands and Tenements of the said A. Co. 3 15. Usually the omission of words make the return invalid as where the returne was The residue of this Writ appeares in a certaine schedule c. For the residue of the Execution of this Writ this is insufficient and vitious 19 H. 6. Fitz. Ret. 14. For by 3 H. 7. 11. a. Brook Ret. 88. the returne of the Sherif ought to be certaine to every intent and he is obliged to take knowledge of the Law in making his returne And therefore in a Scire facias to L. B. Master of the Free Grammer-school of Skipton c. and to the Scholars of the same c. he returned That he made knowne to the Master c. And did not say that he made known to L. B. Master c. And likewise he omitted Scholars which return was insufficient and void See Coo. 8. 127. 128. 10. E. 4. 15. The Sherif upon a Capias returned that he arrested the Defendant at S. and would have carried him to the Goal and that A. B. rescued him which return was holden invalid because he did not shew at what place A B. made the rescue for it shall not be intended the place where the arrest was ret 97. By the opinion of Iennie 3 E. 4. If a Writ be returned thus The answer of the Sheriff of C. and sheweth not the Sherifs name it is no good return 9 E. 4. 19. Br. 54 and by the 11 H. 7. 10. a. b. the name of the County ought to be entred in the margent or over the head of the return In a Scire facias the Sherif returneth I have made known to A. B. in manner and form as this Writ exacteth and requires and said not To the within named A. B. c. and yet this was holden per curiam to be good for note these words as this writ exacteth c. doth amount to the within named or the within mentioned or written See 2 H. 4. 13. and 3 H. 4. 9. Br. 28. Fitz. 44. Habere facias seisinam Upon a grant and render at the Plures the Sheriff did returne mandavi ballivo who did nothing because the parties to the Fine had nothing and the Writ of covenant was not sued in the Liberty nor came to him to be executed upon which a non omittas was awarded 8 E. 3. 12. upon the like writ the Sherif returned that he could do nothing by reason of the resistance of A B. others and he was amerced twenty marks because he did not take posse comitatus and an alias awarded and also a Writ to attach A. B. who was taken and pleaded not guilty and prayed a Writ against the Sheriffe to answer his false return Hil. 19 E. 2. Execution 147. Waste was assigned in W. the returne must not be That he came unto W. but that he came to the place wasted 27 H. 8. Br 2. The Sherif returned That by vertue of a Precept c. he took the body of A. B. c. and exception was taken because the return was not by vertue of a Writ c. yet it was holden to be a sufficient return for the Sherif may take one in Westminster Hall by the mandate of the Justices without any Writ The Sherif returned I have not found the party c. for he is not to be found and the party thereupon outlawed assigned this for Error and not to be amended Fitz 19. The Sheriff returned that he hath commanded the Bayliff of Slaincliff in the third person for I have commanded the Bailiff c. in the first person and was amerced for it 21. Ass 17. If a Sherif do not return a Capias in Processe the arrest is tortious and an action of false imprisonment lieth against him by him that was arrested and likewise the Plaintif shall have an action against him Littleton 18. E. 4. 9. Br. Trespass 339. Br. false imprisonment 5. 7. 12. But if a Capias ad satisfaciendum be not returned it is sufficient if the execution be duly executed and the Plaintif satisfied yet if he levy the money or debt but neither returneth the Writ nor payeth the money to the Plaintif he is chargeable to the Plaintif in an action of accompt c. and to the Defendant in an action of trespass Co. 5. 90. And the Plaintif may have his Execution renewed against the Defendant and the Defendant is left to his action against the Sherif Where a man hath liberty to return Writs as in the Honour of Pontefract in Yorkshire c. and to execute them c. if there the Sherif or his Officer shall enter the Liberty and execute any processe there the Lord of the Liberty shall have an action of the case against him Fitz. 95. b. In a Scire facias to execute a Judgment or Fine the Sherif must return the names of the Summoners 3 H. 7. 8. Br. Ret. 86. Upon the return of a Jury he is to return issues upon every person impannelled and returned by him ibidem Upon a Replevin the Sherif returned that the cattel were in such a strong place that he could not make deliverance for which return he was amerced because he might have taken Posse comitatus and so made deliverance Br. 119. or if he should return a resistance the like 13. E. 3. c. 39. In a Scire facias against the Husband and Wife the Sherif returneth that they are divorced and therefore amercied for Persons that are divorced may have garnishment quaere vide 1 H. 6. 2. Br. 63. Upon a Fieri fac against Executors the Sheriff returneth that they had sold the goods of the party deceased before the Writ purchased c. for which he was amerced for he should have taken other goods of the Executors to the value thereof c. 14 H. 4. 12. Br. 41. Upon a Fieri fac against Executors the Sheriff returned nulla bona c. and upon this return an entry was made in the Roll because that testatum est that the Executors had sold divers goods of the Testator and converted the money to their own use a Writ was awarded to the Sherif to enquire by the oaths of good men of his Bailiwick what goods which were the Testators the day of his death were wasted by the Executors by force of which Writ the Sherif had an Inquisition by which it was found that divers goods of the Testator to the value of the debt recovered were wasted by the Executors And this was returned in Court upon which the Plaintif sued a Scire facias against the Defendant to shew cause wherefore execution should not be awarded against the defendant of his own proper goods And upon two Nihils the Court awarded Execution Co. 5. 32. An Outlawry returned in London in these words At the Hustings holden in Guild Hall in the City of London such a day A.
to the prescription this shall be good by way of confirmation As a Court-Baron is incident to a Mannor so a Court of Pypowders is incident to a Fare and by the Grant of the Fare this doth passe and with this accords 19 H. 8. Brooks case fol. 2. placito 7. and Brook tit incidents placito 34. and not to be fevered from them neither by grant nor by reservation 2 3 Phil. and Mar. Dyer fol. 133 pla 80. the Plaintiffe in a Court of Pypowder doth count of a contract made in the last Fare before where no plaint was then begun nor any judgment of Amerciament of the Defendant then given and this was held a good Error in both by all the Justices of both Benches Mich. 42. and 43 Eliz. B. R. Co. 10 fo 73. in the case of the Marshalsea where Hall braught a Writ of Error against Jones to reverse a Judgment given against him in the Court of Pypowders of the Market in the City of Glocester for that that Hall had published slanderous words of him viz. Mr. Jones and his Clerk have by colour of his office extorted and gotten 300 l. per annum by unlawfull meanes for many years together above their ordinary fees for proving of Testaments and granting of Administrations the which judgement was reversed for two Errors viz. 1. Because words did not concern any matter touching the Market and therefore the Court had no jurisdiction of it but if one slander any with Trades and Merchandizeth in the Market in any thing which concernes his Trade there an action for this well lieth 2. It appeares in the Count that the words were spoken before the Market and not during the time of the Market for as this Court hath no jurisdiction but in matters concerning the Market so the same Court hath no jurisdiction for matters concerning the Market unlesse they were acted and done during the time of the Market Bracton lib. 5. fo 335. a. De brevi de recto 1. de diversitate divisione summonitionis It is there said per quindecim dies ante diem quo comparere debeat summonitio ought to be Et talis summonitio dici debeat legitima Si minus spatium contineat possit illigitimam judicari nisi ob causam legitimam minus tempus statuatur ut propter personas qui celerem habere debeant justitiam sicut sunt Mercatores quibus exhibetur justitia Pepoudrous by the Statute of 17 E. 4. capite 2. And in this Court no Steward or other Minister shall hold plea upon any action at the suit of any person unlesse the Plaintiffe or his Attorney in presence of the Defendant do sweare that the contract in the Declaration c. was had and made during the time of the Fare and within the jurisdiction of the Fare but this oath so taken shall not conclude the Defendant for pleading in abatement of the action and to the jurisdiction of the Court this by the Statute of 1 R. 3. cap. 6. is made perpetual in this principal case here the Defendant in the Court at Rochester was condemned in an action of debt for 300 l. upon a Bond and Contract formerly made and entered into and for this cause the judgment was erroneous Note that in this Court the Steward is Judge because there are no Suitors there neither can the Steward delegate a Deputy 6 E. 4. fol. 3. 7 E. 4. fol. 23. A TABLE OF THE PRINCIPALL MATTERS contained in the BOOKE A A Merciament in the County Court 6 How they are forfeited in Court-Leet and what shall be causes to amerce c. 313 Of Amerciament 314 Attorneys in the County Court 10 how qualified 11 Actions within what time they must be brought 12 Who may bring Actions and who not 13 Appearance what it is 14 Answer what 17 Accompts of the Sheriff with a particular of some usual charges or fees paid by him at the rendring of them up 224 225 Appeals 295 The Sheriff shal have Counter-rolls of Appeals c. 297 Accessaries who 326 Alehouse keepers 332 Assize of bread 333 B BAyliffs in the County Court 11 how qualified ibid. Burglary what 324 Bond taken by the Sheriffe upon a Fieri facias for the payment of money in Court not within the Stat. of 9 E. 4. 50. 185 Burning of houses or Barns 326 Bail what it is 212 Any person making a warrant c. without original processe upon examination c. shall be committed without bail 214 Such as are in Execution c. not to be bailed ibid. None to be bailed that are prohibited by the Statute of West 1. cap. 15. he cannot bail any suspect of felony as formerly ibid. The Sheriff cannot refuse to baile one bailable upon tender of sufficient sureties ibid. Traytors or Felons not bailable 215 In the Vpper Bench the baile not chargeable till default assigned in the principal c. ibid. The new rules concerning speciall bail ibid. and 216 Bridges decayes 328 Boundaries 330 Bloodshed 331 Barretors ibid. Brewers 333 Butchers 334 Breaking of Pownds 338 Beadel why so called 347 Bastard may not inherit 351 C COunty Court when instituted 3 Now the Sheriffs Court ibid. By whom first exercised ibid. What action may be brought in it 4 5 6 12 The time when it is to be holden 5 Where it is to be kept 6 What actions will not lie in it ibid. Proceedings in it 14 The manner of keeping the Court 23 24 25 Processe of the Court Original 37 Judicial 43 County Clerk how to be qualified 7 He cannot practise as an Attorney 8 Can act nothing without the Suitors 9 His care in deputing Bailiffs 9 How he must enter plaints ibid. How he is punishable ibid. Count what it is 16 Continuance what 17 Challenge of Jurors What are good causes 21 Capias ad satisfac where it lies 71 174 Cap. lies not after an Elegit and Why 179 Note where it lies after an Elegit 178 What it is 179 One taken upon it must be kept in salva arcta custodia ibid. This Writ lies where a Capias lies in the originall ibid. Nothing but the body can be taken by this Writ 180 A man in the custody of the Sheriffe and a second writ is delivered to him he shall be in his custody upon it although not actually arrested ibid. Two bound in an obligation joyntly and severally both may be sued and taken in Execution ibid. This Writ lies not for damages in a Writ of Dower ibid. No return is required upon it ibid. Capias pro Fine what it is 181 An Elegit sued after one is taken for the Protectors fine he shall go at large ibid. No one taken upon it in trespasse c. ibid. Capias ut legatum what it is and where it lies 181 182 Capias ut legat inquiras de bonis catallis What it is 182 Capias ad valentiam what it is and Where it lies ibid. Coroners
no such promise within six yeares ibid. Never Executor 134 Fully administred and Replication ibid. Not guilty 135 Bar by which in age ibid. Payment upon a Bill and a Release produced ibid. Free-hold 136 No action to cause one to render an accompt will lie in this Court ibid. In arrest of Judgment ibid. Conditions performed and Replication 137 138 Rejoynder ibid. Detain he doth not ibid. Bar by a generall acquittance and replication ibid. Justification of scandalous words 139 Tender of amends in Replevin ibid. Part of the debt paid the residue tendered before suit and refused and Replication 140 141 Not his Deed 141 By threats and Replication ibid. and 142 By hardnesse of imprisonment and Replication ibid. The assault made by the Plaintiff and Replication 143 The Defendant pleadeth the Plaintiff within age to bring his Action and should have brought it by Guardian and not by Attorney 144 To a trespasse in walking not guilty and as to the residue of the trespas tender of amends and Replication and Rejoynder 144 145 Misnomer in Baptism pleaded in abatement of the writ of Justicies 146 Plea in abatement for that the Plaintiff hath one name in the writ and another in the Declaration ibid. The Defendant justifies for horse meat not satisfied in answer to a Declaration in trover for the same horse 147 The Defendant plead leaves and liberty granted to him by the Plaintiff to enter and feed his cattle 148 The Defendant justifies in replevin the taking of the cattle for rent in arrear 149 The Defendant saith that the goods were taken as a pawn or pledge for money lent 150 Replication that he took them injuria sua propria without such a cause 151 Concord in assault and battery ibid. Replication No such concord or agreement made 152 The Defendant saith that as to the taking of the Oxe that he tooke it by the name of an Herriot ibid. Justification in trespasse for want of reparation of the hedges by the Plaintiffe 153 The Defendant justifies upon a Replevin the taking of the Cattel doing damage-feasant 154 Misnomer in the writ of Justicies ibid. Non cepit to a Replevin 155 Poverty ibid. Demurrer ibid. Joyning in Demurrer 156 Presentment in a Leet of petty Treason 342 Presentment of felony for burning a house 343 Presentment of a Felon ibid. Presentment of an Accessary ibid. Presentments in Court-Baron 375 The finding of the death of a Tenant and of a Surrender made to the use of his will with an admission of the Tenant according to the will ibid. The finding of the death of a Tenant 376 Pains found and set upon tenants for want of suit of Court ibid. 377 The presentment of a Surrender made out of Court into tenants hands with the admission of the tenant accordingly 377 The finding of a Surrender made into tenants hands to the use of a mans will 378 The finding of the death of a tenant and of the lands and that the youngest son is next heir according to the custom c. with his admission ibid. The finding of a sale made of Freehold lands with a distresse to the Bayliffe to distrain for want of taking it up 379 The acknowledgement in the Court of a Legacy paid ibid. A presentment of a Surrender made out of Court with the admission of the tenant 380 A presentment made in Court of an agreement made between the Son and his mother touching her Dower and the mothers release of her Dower 381 A pain set for an incroachment ibid. A pain set for the amending of the same ibid. A presentment for an offence done and a charge to the Jury to enquire and further day given for giving their Verdict 382 R REplevin 39 132 alias Repl. 40 Plures Repl. ibid. Return of a Tolt 43 Return of a Recordare fac Lo. 58 59 of a Pone 59 60 of a writ of False judgment 61 62 63 of an Accedeas ad curiam 65 66 of a Writ for the Election of a Coroner after the death of another 66 of an Exigent 66 67 68 of a Proclamation 69 of a Non est inventus 197 of a Cepi corpus in the Common Pleas ibid. of a Cepi corpus in the Vpper-Bench ibid. of a Cepi corpus and Non est inventus ibid. of a Cepi corpus and Languidus in prisona 198 of a Mandavi Ballivo libertatatis where the Bayliff makes no returne of the Sheriffs warrant or where he makes an insufficient return 198 and also where he returneth to the Sheriffe he hath taken the body and the like in case the Bayliffe returneth a Languidus in prisona or as he shall certified the Sheriff by his returne ibid. of a Scire facias where a Scire facias is returned ibid. of a Nihil to a Scire facias ibid. of Scire facias for one and Nihil for the other 199 of an Attachment and Proclamation in Chancery ibid. A Nihil returned of a Venire facias upon an Indictment presentment or information and summons returned of the like ibid. The Return of a Distringas nuper vic or Balliv ibid. of a Venire facias jur 200 of a Distringas or Hab. corp Jur. ibid. of an Exigent where one bringeth a Supersed one rendereth himselfe the other appeareth not ibid. of a Proclamation 201 of an Allocat ibid. of a Tarde ibid. of a Hab. corp where the Defendant was taken by a former Sheriff 202 of a Pone ibid. of a Scire fac for the release of Prisoners ibid. of Nihil to a Scire fac against the heir and ter-tenants ibid. of a Summons in Dower ibid. of a Cap. in manus in Dower 203 of a Summons upon an originall against an heir ibid. of a Habere facias possessionem Cap. where judgement is signed with costs ibid. of a Liberate out of Chancery 204 of an Acced ad cur ibid. of a Re. fa. lo. ibid. averia elongat and Cepi corp for damages 205 of a Rescous ibid. of a Devastavit 228 of a Nulla bona Devastavit by inquisition ibid. of a Fieri fac 229 of a Fieri fac where part of the debt is levied and for the residue a Nulla bona 230 another of a Fi. fa. ibid. of a writ where the Sheriffe dieth after execution thereof and so returned prout indorsat by the present Sheriffe ibid. of an Elegit where lands are in the Kings hands 231 of an Extent in the Exchequer 232 of a Scire fac against the heir and ter-tenants where notice is given 234 of a summons in Dower 235 Records upon a writ of False judgement and Accedeas ad curiam 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 Recognizance of a Coroner to binde witnesse to appear at the next assizes 290 Release of Lands made in a Court Baron 388 S SCire facias post diem annum 47 against an Executor after Judgement against the Testator ibid. after marriage 48 Subpoena or a Warrant to
a book and not the wyre-drawn flourishes of an obsequious Epistle that causeth your approbation so that this must stand or fall by the weight or levity you shall finde in it Now as this Tract is chiefly intended for the commodity of the Countrey and as it is their sole object to place their invectives point-blanck against Law and Lawyers and if I vindicate them I shall rather seem to detract from then add to their fame it having been the sole subject of many learned pens yet I hope it 's no presumption if I add one Lawrel more to the learned's Crown The Lawes constituted by learned men antiquity own'd receiv'd as from the command of the gods accounting onely those men fit to converse with the gods Thus Minos the Cretan is said to converse with Jupiter and in his presence to compile those Laws he after gave to the people and Lycurgus the Lacaedemonian to have command from the Oracle at Delphos and Numa to consult with the Goddess Aegeria that the Lawes might be more cordially admitted and obeyd as made by the gods themselves Nay in a kind by a civil non obstante excepting them so learned from being obliged by Law as other men of less magnitude were as appears in that carriage of Architas the Pythagorean his Citizens to him whom they would choose seven times their head Governor though the Law prohibited any other that office and honour above a year Have a retro-spect to the Journals of Antiquity view the Diaries of time and you shal find men learned in the Lawes noble advantages to their Countrey their Champions to defend them their Oracles to advise them and their Orators to plead for them And now as to the Laws themselves which may be truly term'd the Walls and Palizadoes of Governments and Nations yea the strongest sinews of humane society for take away the potency of Laws who is it that can say This is mine or that he is within the Bulworks of incolumity according to that eloquent Aphorism of Demosthenes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Leges esse animam civitatis ut etiam corpus cum anima orbatum est concidit Ita civitas sine legibus consistere non potest So the true end of all Laws is to ordain and settle in order and government amongst us the jurisdiction whereof we are rather obliged to obey then dispute Though Thales compared laws to spiders webs But such are ever to be spun in a corrupt state ours are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 speaking laws that dare tax a Delinquent be he never so potent For the Law is grounded upon the rules axioms of reason therefore have an ingeminate denomination the absence of the one is the deformity of the other being in a kind convertibilia and inseparable That common Reason we have ingraffed in our natures is a law directing what we are to do prohibiting the contrary according to that of Cicero Eadem ratio cum est in hominis mente confirmata et confecta lex est For Law is nothing but reason dilated and applied upon several occasions and accidents The comprehension of reason is of publick enormities and necessities for which they be severally at several times constituted being infinite so that the disease in our knowledg many times hath the priority of the remedy And thus the reverence and duty we owe to lawes is nothing else but obedience to reason which is the begetter correcter preserver of the very laws themselves Those therefore who will not obey them are more propinque to the nature of bruits and salvages then men indued withreason It is law reason that do knit the true Gordian knot that binds and cements us to unity and peace amongst our selves and dissipateth all such violent and illegal courses as otherwise unbridled liberty would insinuate preserving every man in his right and preventing others who if they thought their actions might passe with impunity would not measure their course by the rule of Aequum Justum but by the square of their private commodity and affections and so being not circumscribed within reasonable Bounds or Land-marks their reason becomes invisible whereas when they finde that Justice hath a predominant power they are deterred from proceeding in those Acts that otherwise their owne wills and inclinations would give them leave to effect And these were the causes that prompted prudent Antiquity to institute these Courts of Judicature in each County and their severall Precincts and likewise was the cause instigated me to compile this Miscellanie of Courts which in it selfe is methodical facile and perspicuous to benefit the meanest capacity yet satisfie the highest I have now nothing more but to Apologize with Isocrates who with this rule prepares me to endure the supercilious censures various opinions of men 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And that I hope your candid ingenuities Juvenili mea aetate considerata will promise me your connivance at those Errors that shall occur and that you will mitissimo aspectu smile upon this Cradle brat whose little desert though it cannot expect the perusall yet its humility in prostrating it selfe before you may merit your acceptance whereby he shall be encouraged to higher designs whose highest ambition is to be Your friend to serve you W. G. From Furnivals Inne April 20. 1659. Ad amicum eruditissimum G. Greenwood in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 suum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 DVm stupendam ingenii tui foecunditatem lanuginosa conclusam atate suspicio in mentem subit imberbem Apollinem in te suum transfudisse genium ut testaretur tibi minus pili quam eruditionis accrevisse Minerva non multo pridem è Ioviali tuo cerebro prodiens Affectus amoris titulo vulgo insignita inventionem ovantem plane ostendit luxuriantis calami veneres dulcescentes suas exhibent pulchritudines nec formosa facetiarum rosa caret Aculeis lascivientes digitos stimulantibus In desudato hoc 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 tuo limatum triumphat judicium antiquissimarum Curiarum leges methodos à prudentissimis sui aevi inventas excogitatas ad immensum decus elucubrasti quae tenebricosae vetustatis ruderibus jacebant occulta in lucem dedisti Magis familiaria sive indigesta seu disseminata politiori disposuisti ordine in unum velut perfectionis corpus congessisti In debitum hujus libri non excurram elogium quaelibet pagina suis turget laudibus tuamque ultra Herculis Columnas diffundit famam Magni futuri nominis eximia sunt haec praeludia nec de expectatione tantis suffulta speciminibus dubitandum foelicissimam cerebri tui ubertatem largiori rivo in publicas utilitates manaturam ego interim impositis ori digitis silebo mirabor Tui amantissimus J. P. THE COUNTY-COURT OF THE ORIGINALL OF Shires Sheriffs and the first institution of this COURT BEFORE we anatomise the practice of this Court we thought it convenient to deduce it from
its Originall or Prototype Quia origo rerum attendendaâ— And first of the Shire Shire is a Saxon word scyra and hath its etymology from shiran id est partiri to divide as Mr. Lambert saith in his explication of Saxon words Verb. Centur. And Mr. Cambden in his Britania reporteth that Alfred a Saxon King of England was the first that divided this Common wealth into Shires those Shires into Ridings and those Ridings into Weapentakes or Hundreds c. Likewise as Sir Henry Spelman in his Glossarie saith Sunt qui Comitatum distinct ones sub Berengariis Othonibus vel sub Carolo magno apud exteros accidisse opinautur quod de plurimis forte verum fuerit nounullae autem antiquius deprehenduntur Rem apud nos perspicuam facit Ingulphus si sane fides Rex Alfridus alias Aluredus Aethelfridus qui regnum iniit Anne 871 totius inquit Angliae pagos provincias in Comitatus primus omnium commutavit Comitatus in centurias hundredas in decennas id est tithingas divisit Which strenous authorities are sufficiently valid to prove the originall of Shires and their divisions The Republick being thus disunited or dissected into Shires every Shire is intirely governed by one Officer called a Sheriffe or Shire-reeve Vicecomes compounded of these two Saxon words scyr viz. Satrapia a Shire and reue viz. Praefectus a Governour of the Shire Mr. Cambden thus describes his Office Singulis vero annis nobilis aliquis ex incolis proficitur quem Vicecomitem quasi vicarium comitis nostra lingua Sheriff viz. Comitatus praepositum vocamus qui etiam comitatus vel provinciae Quaestor recte dici potest But in Seldeni Jani fol. 53. 54. you have two Governours of the Shire assigned where he saith Praefectus provinciarum qui antea vice-domini ad Ingulphum reversus est Aluredum in duo officia divisit 1. in Judices quos nunc justiciarios vocamus in Vicecomites qui ad huc idem nomen retinent Facessat ergo Polidoras urbinas qui primos a Normanno petit Vicecomites which we now call Vicount a Vice-comite which cometh from our Conquerors the Normans as Sheriffe from our Ancestors the Saxons Also Sir Henry Spelman in his Glossarie saith Quinem autem tunc essent magistratus quos Ingulphus hic vocat Justiciarios Vicecomites non plà ne assequor Reor Aldermanni provinciarum Grevii Saxonice Ealdormen gerefas De Grevii saith he tamen munere nec habeo definitum discrepare enim videtur a Vicecomite quod hic tum adhuc comitis esset vicarius ille regis officialis unde in Anglo-Saxonum legibus atque ipsius Aluredi Cyninger gereþan id est Grevius regis vel ut Latine saeâ—ius reditur Praepositus regis appellatus est And that he is Governour of the County the words of his Patent import as much viz. Commissimus tibi custodiam comitatus So that he is an Officer of great antiquity trust and authority having formerly from the King as now from his Highnesse the Lord Protector the custody tuition and command of the whole County Co. l. 4. 33. Mittons case The aforesayd Alfred at the division of the Kingdome into Shires or Counties instituted this Court called the County Court and established Jurisdiction in it granting power and authority to the Sheriffe to heare and determine such matters as by just cause of appellation either for Law or Equity should be brought unto him This Court as it is recorded by Mr. Selden in his Treatise of Tythes was joyntly exercised by the Bishop of the Diocesse and by the Sheriffe or Alderman of the sciregemot or Hundred or County Court where the one sate to give Godes fight the other for puruldre right that is the one to judge according to the Lawes of the Kingdome the other to direct according to Divinity And Sir Henry Spelman in his Glossary saith Comitatum simul regebant pariterque in foro considentes judicia publica exercebant hic secundum jus humanum ille vero divinum LL. Canuti MS. ca. 44. Habeatur ter in anno Burgesmotus i. Civitatis conventus Schiresmotus i. pagi vel comitatus conventus bis nisi Saepius opus sit intersit Episcopus Aldermannus doceat ibi Dei rectum seculi uterque scil Pro suo munere Idem Ladgari LL. ca. 5. sed pro Aldermannus illic comes extat ut supra demonstravimus utrumque recte Nam in comitatu simus considisse reor Comittem relpub partes tueretur Episcopum qui Ecclesiae Aldermannum qui Legem diceret exponeret But at the Norman Conquest this kinde of holding Ecclesiasticall Pleas in the Hundred of County Court was taken away as may appeare by this Mandate of William the Conqueror recorded in Seld. Jani lib. 2. fol. 76. Willielmus Dei gratia Rex Anglorum Comitibus Vicecomitibus omnibus Francigenis Anglis qui in Episcopatu Remigii terras habent salutem Sciatis vos omnes caeteri mei fideles qui in Anglia manent quod Episcopales leges quae non bene nec secundum sanctorum Canonum praecepta usque ad mea tempora in regno Anglorum fuerunt communi consilio Archiep. meorum caeterorum Episcoporum Abatum omnium principum Regni mei emendandas judicavi Propterea mando regia authoritate praecipio ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in hundredo placita teneat nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum hundredum sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat All actions whatsoever were brought in this Court before the Sheriff as it is reported by Mr. Lambert in his Archeion in that particle of the Lawes of Edgar to our matter in hand Viz. Let no man seeke to the King in matter of variance unlesse he cannot finde right at home But if it be too heavy for him then let him seeke to the King to have it lightned The very like whereof in effect is to be seene in the Lawes of Canutus the Dane sometimes King of this Realme out of which Lawes may be collected foure things First That every man had meanes and was authorized to sue and commence their Actions in this Court in their owne Shire or County Secondly That no man ought to sue out of the County or to remove or draw his plea from thence without good cause both which things do plainely appear in the letter of this Law Thirdly That the King himself had a high Court of Justice wherein it seemeth that he sate in person as these words do demonstrate Let him not seek to
Justices Wray and Anderson and after many arguments concerning the validity of that Grant and conference had with all the other Justices It was resolved by all the Justices Nullo contradicente aut reluctante that the sayd Letters Patents were voyd and their reasons were That the Office of Sheriff was an ancient Office before the Conquest and of great trust and authority for the King committeth unto him Custodium Comitatus And although the King may determine the Office ad beneplacitum yet he cannot determine this in part as for one Town or Hundred nor abridge him in any incidents to his Office for the Office is entire and ought to continue so without any fraction or diminution unlesse by Parliament and the County Court and the entring of all Proceedings therein are incident to the Sheriffs Office c. And though it was granted when the Office of Sheriff was void yet the new Sheriff shall avoid it as Scroges case in the time of Vacation in the Office of Chief Justice of the Common Bench Queen Mary granted the Office of the Exigenter of London resolved that the next chief Justice shall avoid it for it was incident to his Office Also in all Writs directed to the Sheriff concerning the County Court the King sayes in comitatu tuo and in return of Exigents made by him he sayes ad comitatum meum tent c. and the stile of the Court proves it and by the Statute of 33 H. 8. the Sheriff of Denbigh shall keep his Shire Court at c. In a false Judgment it is said in pleno com tuo recordari facias c. and in a Precept of Tolt it is said summoneas c. quod sit ad comitatum meum and it should be very inconvenient that another should have the custody of the Enteries and Rolls of Court which may be imbezzelled and the Sheriff responsible for them And it was resolved that the custody of all the Goales within every County appertains to the Sheriff by right and are annexed and incident by Law to the Sheriffs Office vide an 14 E. 3. cap. 10. But note that his late Highnesse in the year 1653. granted the Office of Clark-ship for the County of York to one Master R. H. though dissonant to common Law yet consentaneous to a gladiatorie power like those in Livie in armis jus ferre omnia fortium virorum esse that all Lawes are engraven on the hilt of a victorious Sword to whose Mandamus both Statute and common Law must submit He cannot execute the Office of a County Clark and practice as an Attorny both at one time it being prohibited by the Statute of 1 H. 5. 4. being a cause of encreasing Suits and a hinderance in dispatch of Clyents causes He cannot act any thing without the assent of the Suitors if he do an Action of Trespasse lyeth against the Sheriff He must be carefull in deputing honest able and sufficient men as Bayliffs for the executing of the Precepts issuing out of the Court. He ought to enter no Plaints except in case of Replevins out of Court but in full County sedente curia yet the case is otherwise at this day and as it seems good enough verifying the Diverbe communis error facit jus He must make sufficient Precepts after the Plaints entred but not before against the Defendants directed to his Bayliffs to attach or warn the Defendants to appear at the next County Court and answer the Plaintiff The County Clark and Plaintiff upon complaint of the party grieved may be examined by one Justice of Peace concerning the taking or entring of Plaints in the County Court and book against the Statute If thereby the Justice find any fault or offence committed that shall stand for a sufficient conviction and attainder without any further inquirie or examination And the said Justice must certifie the examination within a quarter of a year into the Exchequer by the Statute of 11 H. 7. cap. 15. If a Writ of discharge of the ancient Sheriff be delivered to the County Clark sitting in the County Court the authority of the said Sheriff although absent shall presently cease At the adjourning of every Court he must appoint a day certain for the next Court to the intent the Country may know at what time they may resort thither to hear the Lord Protectors Writs of Exigent and Proclamations read The Office of a Coroner in this Court A Coroner is one of the principall Officers of this Court being chosen in it by a Writ de Coronatore elegendo directed to the Sheriff by the Freeholders or Suitors in open and full Court and is published there and after the Sheriff is to returne and certifie into the Chancery the election of every such Coroner and their names likewise the County Clark in Court must administer to the Coroner his oath for the due execution of his Office The Coroner being thus elected and sworn he is to sit there with the Sheriff every County Court to give Judgment upon Outlawries which Judgment shall be given and pronounced by him in the fifth County and there the Sheriff is to returne the Outlawry with the Exigent But by this Judgment no goods are forfeited before the Outlawry appear upon Record neither shall such an Outlawry disable the party Exigents and Proclamations are to be proclaimed five County dayes one after another and once in the open Sessions and once at the Parish Church doore where he doth or did lately dwell that he appear or else that he shall be outlawed And if Proclamation be made five County dayes and at the fifth County day the Defendant appear not then the Coroner shall give Judgment that he shall be out of the Protection of the Lord Protector and out of the ayd of the Law F. N. B. 163. But before I conclude let me give you in brief why a man is said to be outlawed and a woman waived viz. A man is said to be outlawed because he was sworn to the Law and now for his contumacy he is put from the Law and said outlawed as it were extra legem positus but a woman is not so but she is waived and not outlawed because she was never sworn to the Law Of Attorneys in this Court IT was once objected to me that no Attorney could legally practice in this Court and that every man ought to prosecute his own cause himself Epitomie of the Statute of Westminster 2. cap. 10. That every man which oweth Suit to the County Court may make a generall Attorny to prosecute and follow his Suits in all Pleas And likewise in the Statute of Merton cap. 10. Quod quilibet liber homo qui sectam debet ad Com. c. libere possit facere Atturn suum ad sectas illas pro eo faciendas and an Attorny may doe every thing in the name and as the act of him who gave him the authority as if he did it himself he
and truly try this Issue between party and party according to your Evidence so help you God And as they are sworn enter by every mans name Jur. viz. juratus est he is sworn Being all sworn bid them stand together to hear their Evidence Then swear the Witnesses The Evidence that you are to give to this Inquest touching the matter in variance shall be the truth the whole truth and nothing but the truth so help you God Then let the Jury depart from the Bar to agree upon their Verdict At their return command the Bayliff to call every one by their names and count them Then aske them if they be all agreed on their Verdict Jur. yea Who shall say for you Jur. The foreman Then call the Plaintiff A. B. appear or thou loseth thy Plaint three times Then aske the Jury if they will stand to their Verdict Jur. yea Whether do you find for the Plaintiff or for the Defendant Jur. for the Plaintiff What damages Jur. 2 d. What costs of Suit Jur. 2 d. Harken to your Verdict this you say you find for the Plaintiff and assesse damages 2 d. and costs of Suit 2 d. so say you all Jur. yea Then bid the Plaintiff pay the Jury If the Verdict find matter incertainly or ambiguously it is insufficient and no Judgment ought to be given thereupon as if an Executor plead plene administravit viz. fully Administred of all the goods and Chattels which were of the Testator and issue is joyned thereupon and the Jury find that the Defendant hath goods within his hands to be administred but find not of what value this is incertain and therefore insufficient A Verdict that findeth part of the issue findeth nothing for the residue this is insufficient for the whole because they have not tryed the whole Issue wherewith they were charged But if the Jury give a Verdict of the whole Issue and of more c. That which is more is Surplusage and shall not stay Judgment for utile per inutile non vitiatur but necessary incidents required by the Law the Jury may find The Court being ended adjourn the Court to another day to be kept commanding the Bayliff to make Proclamation O yes c. and say All manner of persons that have any more to do at this Court let them come forth and they shal be heard otherwise they and every one else may depart for this time and keep their houre here on Munday the fourth day of August next by nine a clock in the morning c. Now the Court being done and the Defendant condemned by Verdict then Judgment being entred a Fieri facias shall be awarded to make Levy of his goods and thereupon the Defendants goods shall be taken praised and sold to satisfie the party Plaintiff and if the Defendant hath no goods whereupon Levy may be made then the Plaintiff rests without remedy in this Court Of Distresse COnsidering the many lacrymable wrongs the Country hath sustained by those Locusts that litigious generation of men a clamorous company qui ex injuria vivunt Seminaries of discord worse then any polars by the high way side monstra hominum rabulas forenses irreligious harpies scraping griping catchpoles Bayliffs and corrupt practisers and how much the ignorant people are abused and deceived yea many times as the sad experience of many will inform us ruined and utterly undone by them they being the sole causes of those ignominious aspersions cast upon the Court The advantage that it would produce to the Common-wealth is in-explainable if the Statute of 1. of H. 5. cap. 4. were observed that is that Sheriffs Bayliffs one year not to be in that Office in three years after because by their continuall being in that Office they grow so crafty and cunning that they are able to deceive the Sheriff and ruine the whole Country Therefore that the Country may not be altogether ignorant of their seeming authorized Actions I will declare what and when they may distrain and what and when they may not But first to declare what a Distresse is A Distresse is either said to be reall that is when Land is distrained upon a grand cape or petit cape of which we have nothing to say here or it is said to be personall where moveable things are distrained and this is that we are to speak unto Therefore a Distresse is where one doth take and distrain the Beasts Cattell and other things of another man in some ground or place for debt rent or other duty behind or for some wrong or damage done The Sheriff nor his officers cannot break a mans house in the night time to execute any Processe or to do any ministeriall act for the Law giveth no colour to break a mans house by night None can be distrained that are out of the Jurisdiction of the Court Marl. cap. 2. No Distresse can be made in the night but for Damage feasant The Bayliff may attach a man by his goods citing him to appear and answer such a day at such a mans Suit in such a Court and for such a cause Or he may onely give the Defendant warning in the presence of two others to appear such a day in such a Court at such a mans Suit it is sufficient And if an Attachment be made it must be of such goods of the Defendants own proper goods as are movables viz. by meer Chattels personalls which may be forseited by Outlawry and not immovables A Bayliff cannot sever horses joyned to a Cart. Sheep may not be distraind if there be a sufficient Distresse besides No man shall drive a Distresse out of the County where it was taken A Distresse may not be impounded in severall places upon pain of five pounds and trebble damages A man cannot work goods distrained nor convert them to his own use The goods of any man may be taken in any place within the County in another mans house or ground as well as his own If a Bayliff distrain or attach the horse of a master where the Plaint is against the servant Trespasse lyes for the Master against the Bayliff for the Bayliff ought to take notice at his perill whose goods he distrains or attaches 13 H. 4. fo 2. 14 H. 4. 24. 11 H. 4. 90. Dr. and St. 139. After Distresse or Attachment made if the Bayliff doth not return his Precept the next Court Trespass lyes against the Bayliff for the Defendant and an Action of the case lyes against him for the Plaintiff for not returning of the Precept 10 E. 4. fo 18. 3 H. 7. fo 3. By Choke If one take Beasts in the name of a Distresse he ought to put them in an open Pound for that he who is distrained may give to them sustenance but if he distraine dead Chattels he may put them where he will but if they spoyl in his default he must answer for them 19 E. 4. fo 2. b. If goods distrained
granting out Replevins to have a Replevin directed to the Bayliffs to Replevie them and the party must be bound in an Obligation to the Sheriff to prosecute his Action against him or them that did take the Cattell and to make return of the same Cattell to the Distrainer if he by Justification or Avowry do recover And if he pursue it not or if it be found or judged against him then he that took the Distresse shall have again the Distresse and that is called the return of the Beasts and he shall have in such case a Writ from above de Returno habendo This Replevin may be returned out of the County into the Common Pleas by a Writ of Recordare If the goods cannot be taken by the first Replevin then issueth forth an Alias then a Plures then a Toties quoties and if none of these will do then a Withernam The suing of a Withernam is after this manner If the Bayliff return at the next County upon the Toties quoties that he cannot Replevie the Cattell because they are esloyned or that he cannot have view of the Cattell then the Sheriff ought to make inquirie if it be true which is returned and if it be so sound out he shall make a Precept to the Bayliff in the nature of a Withernam to take as many Cattell of the other party And if the Bayliff upon the Withernam thus awarded return that the other party hath not any thing c. he shall have an Alias and Plures and so ad infinitum and hath no other remedy in this Court Note that Cattell taken in Withernam ad valentiam that is to the value of the Cattell that were first distrained and so detained that the Sheriff cannot execute the Replevin brought for them is to be understood not of the number of the Cattell first distrained but according to their full worth and value For otherwise he that bringeth the Replevin and Withernam will he deprived of his satisfaction he ought to have in case the Distresse were not lawfully taken But now to return again to the Replevin if the thing distrained be put by the Distrainer in a place where the Sheriff cannot come at them to make a Replevie he may take Posse comitatus viz. the power of the County and after demand of the Chattels he may beat down the door or place where they are to take them and the Owner of the goods shall recover double for his losse what ever it be The Sheriff upon complaint made to him upon taking of Cattell may command his Bayliff by word to make a Replevin of them and it is as good as though he had made his Precept to the Bayliff Fitz. 6. 9. He that hath the Replevin must have either a generall or speciall property in the thing as of goods pledged or the like and it must be in him at the time of the taking or otherwise he cannot have or maintain the Replevin for them Diverse mens Cattell being taken they may not joyn in one Replevin but must have severall Replevins A Replevin ought to be certain in setting forth the number and kinds of the Cattell distrained otherwise it is not good because if it be not certain the Sheriff cannot tell how to make deliverance of the Cattell because he knows not particularly what the Cattell are that were distrained Trin. 23. Car. B. R. If a man taketh and impoundeth goods a Replevin may be of more Cattell than were impounded for if a man distrain Cows or Ewes c. and they have in that Pound Calves or Lambs the Plaintiff shall have a Replevin for them all and by Lit. it was adjudged Mich. 8. E. 3. That if a man distraineth and impoundeth a Sow great with pigs in the Pound the Owner shall have a Replevin for the Sow and the Pigs If Cattell be distrained and a Replevin is sued the Defendant doth avow for taking of them Damage-feasant or for Rents Customs and Services and are at issue and after the Plaintiff is non-suit or otherwise barred he shall lose his costs and damages by the stat of 7 H. 6. cap. 5. but by the stat 21 H. 8. it is clear Pasch 14. Mar. Dyer 141. If a man by his Deed grant a Rent with clause of Distresse and grant further that he shall keep the goods distrained against Gages and Pledges untill the rent be paid yet shall the Sheriff replevie the goods distrained for it is against the nature of such a Distresse to be irrepleviable and by such an intention the current of Replevins should be overthrown to the hindrance of the Common wealth 31 E. 3. Gage deliver 5. Co. Inst 1. fo 145. b. If in this case the taker of the Cattell justifie the taking as in his Freehold then this Court can proceed no further therein but the cause must be removed by a Writ out of the Chancery called a Recordare facias loquelam directed to the Sheriff returnable the next term following either into the Court of upper Bench or Common Pleas to which the party pleaseth but they are more properly belonging to the Court of Common Pleas and this Writ must be openly read and allowed in the same Court to the end that notice may be given thereof to the Plaintiff in the Replevin that he may appear at the day of the return thereof and declare against the taker of his Cattell otherwise the taker will have a retur habend aver and put him to sue forth the second deliverance which is a great disadvantage to the Plaintiff If a Replevin be sued out and the Defendant doth avow for taking of them Damage-feasant or for rents customs or services and are at issue and after the Plaintiff is Non-suit or otherwise barred he shall lose his costs and damages Stat. 7 H. 6. cap. 5. 21 H. 8. Pasc 4. Maria Dyer 141. Of the Processe of this Court THe Process of this Court are either originall issuing out before Judgment Or Judiciall issuing out after Judgment Originall is a Distringas or County Warrant c. Judiciall Process is onely a Fieri facias or Execution directed to the Bayliff to levy the debt or damages and cost of Suit recovered of the goods of the Desendant or of the Plaintiff if he be non-suited The Originall Processe viz. Distringas or County Warrant is a Precept issuing out for a debt under forty shillings It s form is as followeth Y. ss I. B. Esq Sheriff of the said County to all and singular my Bayliffs within the said County and their Deputies greeting Commanding you and every of you that you distrain R. B. by his goods and chattels within the said County so that he be and appear at the next County Court to be holden at the Castle of Y. on munday the 10 of J. to answer unto S. D. in an Action of debt And that you then and there certifie your doings herein Sealed with the Seal of my Office the sixteenth
chattels which late were W. W. deceased at the time of his death and now remaining in the hands of I. W. Executor of the Testament of the said W. W. and not administred of as well a certain debt of 40 l. which T. L. in my County Court by vertue of a Writ of Justicies recovered against him as also 20 s. which to the said T. L. in the same Court was adjudged for his costs and damages which he sustained by reason of the detaining of the said debt If the said I. W. Executor of the Testament of the said W. W. have so much goods or chattels in his hand which were the said W. W. at the time of his death sufficient to satisfie the debt and damages aforesaid If he have not so much goods or chattels in his hands which were the said W. W. at the time of his death sufficient to satisfie the said T. L. of the debt and damages aforesaid That then you or some of you levy of the proper goods and chattels of the said I. W. the damages and costs aforesaid so that I may have the said mony at my next County Court to be holden at the Castle of Y. c. to render to the said T. L. the debt and damages aforesaid whereof he is convict And this given under the Seal of my Office the c. I. B. Esq c. to all and singular my Bayliffs c. greeting I command you and every of you that of the goods and chattels of T. O. you levy 20 s. which S. D. in the County Court according to a Statute provided in that case were adjudged for his costs and damages which he sustained in his own defence in a certain Plea of debt which the said S. D. against the said T O. of late brought because the said T. O. did not prosecute his Suit but was thereupon non-suited and convicted so that I may have the mony at my next County Court at the Castle of Y. holden on Munday c. next to satisfie the aforesaid S. D. of his costs and damages aforesaid And this c. Given under the Seal of my Office the c. I. B. Esq c. to all c. greeting I command you that of the goods and chattels of T. C. you levy 40 s. which to P. P. in my County Court were adjudged for his damages which he sustained in his own defence in a Plea of debt by the said W. against him the said P. P. lately brought whereof the said P. P. was quieted and by Verdict of his Country whereof the said T. C. was convict have you the mony at my next County Court to be holden at the Castle of Y. on Munday c. to satisfie the said P. P. of his damages aforesaid And this c. given under the seal of my office c. I. B. Esq c. to all c. greeting I command you and every of you joyntly and severally that of the goods and chattels which late were of E. S. Esq who dyed intestate as it is said and now in the hands of R. M. Gent. and A. his wife Administratrix of the goods and chattels which were the said E. S. at the time of his death remaining to be administred you cause to be made as well a certain debt of 4 l. which I. W. hath recovered against the said E. S. in my County Court as 30 s. which to him the said I. W. in my same Court were adjudged for his costs and damages which he had by occasion of detaining of the same debt by vertue of a Writ of Justices so that I may have the said mony at my next County Court to be holden at the Castle of Y. c. to render the aforesaid I. W. of the debt and damages aforesaid whereof the aforesaid E. S. was convict And whereupon it was considered in my same Court that the aforesaid I. W. should have Execution against the aforesaid R. M. c. of the debt and damages aforesaid of the goods and chattels aforesaid by his the said R. M. his default And this given under the seal of my office the c. I. B. Esq c. to all singular my Bayliffs c. greeting I command you and every one of you joyntly and severally especiall to F. P. Bayliff of the Liberty of S. and his Deputies who hath the goods taken upon an Execution issuing out of this Court that those twenty weather Sheep of which each you cause to be apprised at eight shillings of the goods of I. C. Esq which you took and remain in your hands unsold for want of buyers as you your self returned to my Court you expose to sale and the mony thereof which in the whole amounts to eight pounds you have at my next County Court at the Castle of Y. holden on Munday the tenth day of May next to render to W. G. which to him the said W. G. in my Court were adjudged for his damages which he had by occasion of a certain Trespasse to him committed by the aforesaid I. C brought whereof he is convict And this given under the Seal of my Office the 18 day of October in the year of our Lord 1657. By the Sheriff Of a Scire Facias IF a Fieri facias do not issue out within a year and a day after Judgment entered it cannot be had till there be a Scire facias first sued out to summon the Defendant to shew cause why Execution should not be done and if now he neglect to answer or cannot be found to be summoned then a second Judgment shall be given that that Execution be done of the first Judgment If Judgment be given against a Testator albeit it be within a year after Judgment had yet there must first issue out a Scire facias against the Executor or Administrator before Execution to shew cause why it should not be had Or if a man recover against a Feme-sole and she become covert viz. take a Husband within the year and the day then he that shall recover must have a Scire facias against the Husband Scire facias post diem annum I. B. Esq Sheriff c. greeting Whereas W. F. of late in the Court of the aforesaid County by Judgment in the said Court of the County aforesaid held at the Castle of X on Munday the tenth day of February 1654. before the Suitors of the said Court recovered against G. L. as well a certain debt of thirty two shillings which the said W. F. in the same Court recovered against him as thirteen shillings and ten pence which to the said W. F. in the same Court were adjudged for his damages which he sustained by the occasion of the detaining of the debt of which he is convicted for as by the proceedings from thence in the same Court residing notwithstanding the manifest Execution of the aforesaid Judgment remains to be done as by
as S. V. hath appeared by his Attorney in this Court to answer W. N. of an Action of debt These are therefore to will and require you immediatly upon the sight hereof to deliver or cause to be delivered unto the said S. V. Two kine of the goods of him the said S. V. which you have distrained and do keep by vertue of my Warrant from this Court directed at the Suit of the said W. N. Fail you not hereof as you will answer the contrary Given under the Seal of my Office c. A Precept upon a Proclamation I. B. Esq Sheriff c. to the Bayliff of the Hundred of B. and to his Deputies greeting By vertue of a Proclamation upon Exigent to me directed I command you and every of you that you or some of you make two severall Proclamations The one to be made at the generall quarter Sessions of the Peace to be holden for the North-riding of the County of Y. And the other to be made at the Parish Church door after divine service where the severall persons under-written live and that they and every one of them yeeld their bodies to me the Sheriff of the said County where the Exigent lyeth to answer the person at whose Suit the Exigent is against them And hereof fail not at your perill Given under the Seal of my Office the two and twentieth day of August in the year of our Lord 1658. At the Election of the Coroner he is to be sworn in Court by the County Clark for the due Execution of his Office In this manner You shall swear that you well and truly shall serve his Highnesse the Lord Protector and the Common-wealth in the Office of a Coroner and as one of his Highnesse Coroners of the County of Y. and therein you shall truly diligently do and accomplish all and every thing and things appertaining to your Office after the best of your cunning wit and power both for the profit and good of the Inhabitants within the said County taking such Fees as you ought to take by the Laws and Statutes of this Common-wealth and not otherwise so help you God The Oath of an Attorney in this Court YOu shall do no falshood nor consent to any to be done in the Court and if you know of any to be done you shall give knowledge thereof to the Steward or county Clerk that the same may be reformed you shall delay no man for lucre or malice you shall increase no fees but shall be content with the old fees accustomed you shall suffer no forreign or illegal suits to hurt any man nor plead or cause to be pleaded any forreign plea but such as shall stand with the order of the law and your conscience you shall seal all such processe as you shall sue out of this Court with the seal thereof you shall not procure to be sued any false suit nor give aid nor consent to the same And lastly you shall use your selfe in the office of an Attorney within this Court according to your learning and discretion So help you God A Warrant of Attorney To S. D. one of the Attorneys of the County Court for the County of Y. c. I A. B. do hereby desire you and do give you full power license and authority to appear for me and for c. in your said Court on Monday c. in an action of debt for c. at the suit of E. D. upon an obligation conditioned for the payment of c. in which said obligation I stand bound as principal And this shall be your sufficient warrant in that behalfe In witnesse c. Bond for appearance It hath been formerly used to take a bond of the defendant for his appearance in this Court the form of the condition is thus THe condition c. That if the above bounden E T. do appear at the next County Court to be holden at the Castle of Y. on monday the first day of Ianuary next to answer H. B. in a plea of debt and do also stand to such order as the Court in that behalfe shall set down and adjudge according to law That then this present obligation to be void c. A sale of Goods to the Plaintiff levied upon a Fieri facias by the Sheriffs Bailiffe KNow all men by these presents That I G. B. of Skipton in Craven Bailiffe of the Liberty or Weapentake of Slaincliffe in the County of Y. By vertue of a precept of Fieri facias from the Sheriff to me directed have levied of the goods and chattels of c. the sum of c. paâ—t of a debt due to c. levied by vertue of the precept to his use In full satisfaction of which said sum of c I do by vertue of the precept or warrant to me directed as aforesaid assigne sell and set over unto the said c. all the goods and chattels in the apprisement hereto annexed nominated at the rate of c. To have c. the said goods and chattels to him his heirs executors and administrators as his or their own proper goods and chattels as fully and absolutely as I the said G. B. might could or ought to do by force and vertue of the said precept and apprisement or otherwise howsoever In witnesse whereof I have hereunto set my hand and seal the sixteenth day of August in the yeare of our Lord 1658. A Deputation for a Bailiff of an hundred I. B. Esquire Sheriffe of the County of Y. to all Christian people to whom these presents doth or may concern greeting Know ye that I the said Sheriff have deputed constituted and appointed R. D. of A. in c. my lawfull Bailiff and Deputy within the Hundred of B. in the North-riding in the County of Y. aforesaid to have and execute the said Office of Bailiff within the said Hundred or elswhere within the said County of Y. as occasion shal require it during my pleasure onely and no longer and to receive and take to my use all Fees as well for Distresse Attachment and Perquisites of Courts and other profits due and accustomed whatsoever to the said Bayliwick belonging or in any wise appertaining And whatsoever my said Bayliff shall lawfully execute and do in his said Office I do hereby warrant ratifie and confirme as my own act and deed In witnesse whereof I have hereunto set the Seal of my Office the seventeenth day of August 1658. The Fees The Fees to the County Clark  l. s d. FOr every Distringas 00-00-08 Every speciall Distringas 00-01-08 Duces tecum 00-00 08 A speciall Duces tecum 00-01-08 The Writ of Justicies 00-02-06 The Precept upon the Writ of Justicies 00-02-04 A speciall Precept upon the Writ of Justic 00-04-04 A Replevin 00-02-04 A speciall Replevin 00-05-04 The Bond upon the Replevin 00-01-00 Subpoena for Witnesses 00-00-08 Venire facias 00-02-00 Habeas corpora 00-02-00 Fieri facias 00-02-00 Capias in Withernam 00-05-04
the day and place within contained and to the parties within written that day have prefixed that then they be there in that Plea as just it may be to proceed as within to me is commanded A. B. complaines of C. D. in a Plea of taking of the Beasts of him the said A. B. in testimony of which matter E. B. S. D. I. W. and I. R. four legall men of those who at the Record present were in full Court at the Castle of Y. in the County aforesaid the tenth day of Aug in the year c. to the same Record their Seals severally have put the day and year abovesaid Note that though the Plea be discontinued in the County yet the Plaintiff or Defendant may remove the Plaint into the Common Pleas or Upper Bench by a Recordare c. and it shall be good and he shall declare upon the same And the Court shall hold Plea upon the fame Plaint for if the Plaint be continued in the County and issue joyned upon it yet nothing shall be removed but only the Plaint and in the Common Pleas the Plaintiff may declare anew c. Likewise if the Recordare bear date before the Plaint was entred in the County it is good enough and the Record is well removed The nature of a Pone A Pone doth nothing differ from a Recordare but that a Pone is allwayes to remove such Suits as are before the Sheriff by Writ of Iusticies and not by Plaint onely but the Recordare is to remove the Suit that is by Plaint onely without Writ F. N. B. 70. 11. By vertue of this Writ to me directed I have put before the Justices c. of the Common Bench at Westminster the Plea which is in my County by Writ of his Highness the Lord Protector of Iusticies betwixt A. B. and C. D. of a Plea of debt as it is said as it appeareth in a certain Schedule to this Writ annexed c. At my County Court held at the Castle of Y. in the County aforesaid upon Munday the twelfth day of August in the year of our Lord 1658. c. A. B. complaineth of C. D. of a Plea of debt in testimony of which matter R. L. S. R. T. O. and S. D. four legall men of those who at the Record present were in full Court their seals severally have put the day and year abovesaid A. B. complaineth of C. D. of a plea of debt 20 l. That if a plea be removed by Pone at the suit of the Defendant or Plaintiff and afterwards they proceed in this Court in the plea and give judgement and award execution c. then the Defendant or he against whom the judgement was given and execution awarded shall have an attachment against the Sheriff directed to the Coroner to answer as well his Highness the Lord Protector for the contempt as the party his damages c. Of the Writ of Prohibition THe Writ of Prohibition is of the same nature of a Recordare and a Pone but not in use Of the Consultation or Procedendo THese two Writs are both of one nature though the Writ of Consultation be obsolete and the writ of Procedendo stept up into its place it lieth where a cause hath been formerly removed by Pone or Recordare from this Court into the Vpper Bench or Common Pleas and for want of sufficient cause of removeall is sent back again Fitz. old Natura brevium 50. The nature of a Writ of False Judgement A Writ of salfe Iudgement lieth where an erroneous Judgement is given in this Court being no Court of Record then the party grieved by the Judgment may have this Writ and remove all processe of the suit into the Common Bench and there it shall be examined if it be found erroneous the Judgement shall be reversed and the suiters of the Court who gave the Judgement amerced Note that a Writ of false Judgement lieth not but in a Court where there are Suitors for if there be no Suitors there the Record cannot be certified by them F. N. B. 43. H. By vertue of this Writ to me directed to be Recorded I have caused the Plea which is in my County together with the proceedings and the Judgement betwixt the parties beneath and to the same parties day have prefixed to be before the Justices within written at the day place within contained as the Writ exacts and requires which plea with the proceedings and judgment appeareth in a certain Schedule to this Writ annexed A Plaint by Writ in the County Court holden at the Castle of Y. in the County aforesaid on Monday the 23. day of August the year c. before the Suitors of the same Court in the time of I. B. Esquire Sheriff of the County aforesaid according to the Customs and Priviledges of the same Court time whereof the memory of man is not to the contrary have been used and approved in the same At this Court came A. B. in his proper person and brought here into Court a Writ of his Highnesse the Lord Protector of Iusticies which said Writ follows in these words O LIVER Lord Protector of c. To the Sheriff of Y. greeting A. B. hath complained to us that C. D. upon him the said A. B. at the Castle of Y. hath made an assault and hath beaten wounded and evil intreated him so that of his life it was despaired and hath done him other wrongs to the great damage and grievance of the said A. B. and therefore we command you that you hear the said plaint and after cause them to be therefore brought to justice for the same that we hear no more complaint therein for want of justice Witnesse our selves at Westminster the 10. day of August in the year of our Lord 1656. And thereupon found Pledges to prosecute the said plaint that is to say Io. Doo and Ric. Roo And thereupon the said A. B. put in his place S. D his Attorney in the plaint aforesaid and by his said Attorney required processe to be made to him upon the same And it was commanded by the said I. B. Esquire Sheriff of the said County to all and singular his Bailiffs jointly and severally and their Deputies that they or some of them should do justice to the said C. D. so that he should be and appear at the next County Court to be holden at the Castle of Y. on Monday the 20. day of September then next in the year aforesaid to answer the said A. B. in the plaint aforesaid At which day came the said A. B. by his Attorney aforesaid and offered himselfe against the said C. D. in the plaint aforesaid and then and there came I. P. one of the Bailiffs in the County aforesaid of the said I. B. Sheriff of the said County and returned the said precept so directed as aforesaid served and executed on him and the said C.
D. did Essoin because he could not come until the next County Court to be holden at the Castle aforesaid at which said next Court viz. on Monday the 10 day of October then next following in the year abovesaid came the aforesaid A. B. by his Attorney aforesaid and offered himself against the said C. D. in the plaint aforesaid and the said C. D. then and there came in his proper person to answer the aforesaid A. B. in the plaint aforesaid and put in his place I. R. his Attorney against the said A. B. in the plaint aforesaid and by his said Attorney desired of the said Court that the said A. B. should declare against him upon his said plaint and thereupon the said A. B. by his Attorney aforesaid declared against the said C. D. upon the plaint aforesaid in manner and form following A. B. By vertue of a writ of Iusticies by S. D. his Attorney complains of C. D. of an action of trespasse and assault for that the said C. D. the 10. day of October in the year c. at the Castle c. in and upon the aforesaid A. B. did make an assault and affray and him did beat wound and evil intreat so that he did despair of his life and other harms did do unto him to the great damage of the said A. B. wherefore the said A. B. saith he is damnified to the value of 20 l. and thereupon brings this action c. Whereupon at the same Court at the request of the Defendant day was given to the said parties in the plaint aforesaid till the next county Court to be holden before the suitors aforesaid on Monday the 15. day of November then next following saving to the Defendant c. at which day at the said Court before the suitors aforesaid holden at the Castle of Y. aforesaid came aswell the said A. B. by his Attorney aforesaid as the said C. D. by his Attorney aforesaid and then and there the said I. B. Esquire was removed from the office of Sheriff of the County aforesaid and R. L. Esquire was duly elected and did enter into the said office of Sheriff of the County of Y. aforesaid whereupon at the same Court at the request of the parties further day was given to the said parties in the plaint aforesaid until the next County Court on Monday the 13. day of December then next following in the year abovesaid to be holden before the suitors aforesaid saving to the parties c. at which day at the said Court before the suitors aforesaid holden at the Castle aforesaid came aswell the said A. B. by his said Attorney as the said C. D. by his Attorney aforesaid And the said C. D. by his Attoruey aforesaid came and defended the injury when c. And the said Attorney said that he was not informed by his said Clyent of any answer for him the said C. D. to the said A. B. in the plaint aforesaid to be given whereby the said A. B. did remain against the said C. D. thereupon without defence for which the said A. B. ought to recover against the said C. D. his damages by occasion of the trespasse and assault and wounding aforesaid but because it was not known to the Court what damages the said A. B. had sustained by reason of the premises therefore at the next County Court holden at the Castle of Y. aforesaid in the County aforesaid before the Suitors aforesaid upon Monday the 10. day of Ianuary then next following in the year aforesaid it was required by the oaths of I. W. R. S. S. G. M. L. T. P. c. twelve good and lawfull men of the County aforesaid being present in the Court and in the full County sworn to inquire what damages the said A. B. sustained by occasion of the trespass assault wounding say upon their oaths that the said A. B. hath sustained damages by occasion of the trespass assault and wounding to ten pounds and for his costs and charges by him in that behalfe expended to two pence therefore it was considered by the said Court that the said A. B. should recover against the said C. D. his damages and costs aforesaid by the Jurors aforesaid in form aforesaid assessed and also forty shillings by the Court aforesaid to the said A. B. by his assent for increase of costs to him adjudged which said damages and costs do amount to twelve pounds and two pence And the said C. D. in mercy c. In testimony whereof c. The nature of an Accedeas ad curiam THis Writ issues out of the Chancery directed to the Sheriff commanding him to go to such a Court of some Lord or Franchife as Court-Baron or the like being no Court of Record where a Plaint is sued or a false judgement is supposed to be given in some suit which hath been in the Court and by this the Sheriff is there to make Record of the same suit in the presence of the Suitors of the same Court and four lawfull men of the County and of this he is to make a Certificate into the Court above under his seal and the seals of four of the Suitors of the same Court at the day appointed by the writ F. N. B. 71. Plowden 74. Finch 444. This Writ cannot be had without shewing some special cause for the removing of it as that a Freehold is in question there or some forreign plea is pleaded not triable in that Court or such like F. N. B. 70. 119. The County Clerk is to make a precept upon the Writ in this manner Yo ss I. B. Esquire Sheriff of the County of Y. To the Steward and Bailiff of the Court of the Honour of P. greeting I command you by vertue of a Writ to me directed that you take with you four discreet and lawfull Freeholders of the County aforesaid and that you go to the Court aforesaid and in full Court there cause the Plaint to be recorded which is in the same Court without Writ between R S. and G. M. of a certain trespasse upon the case brought by the said R. S. against the said G. M. as is aforesaid And that you certifie the Record to me so that I may have the same before the Justices of the Common Bench at Westminster from the day of the holy Trinity in fifteen days under your seals and the seals of four lawful men of the said Court of those that shall be present at the Record and that you prefix the same day to the parties that then they be there ready to proceed in the said plaint as shall be just and have you the names of the said four men and this Precept fail not hereof c. Given under the Seal of my Office this second day of Iune in the year of our Lord 1656. By the Sheriff Honour of P. ss The Court Baron of G. S. I. K. c. holden at
answer for the same A. B. and C. C. his Clyents to the same E. F. in the said Plaint And the said Attorny for his said Clyents saith nothing in Bar as in others by which the said E. F. his damages against the said A. B. C. D. by occasion of the taking and unjust detaining of his Cattle aforesaid ought to recover but because it is unknown to the Court here what damages the said E. F. sustained by occasion of the premisses It is commanded to the said I. S. then Bayliff of the Wapentake of W. aforesaid one of the Ministers of the County Court aforesaid that he cause to come before the said Sheriffe at the next county Court of the County aforesaid to wit the 15th day of May in the yeare abovesaid at the Castle of Y. aforesaid then next following to be held twelve honest and lawfull men of the neighbourhood of S. to be suspected by neither party to enquire upon their Oath what damages the said E. F. sustained aswell by the occasion of the taking and unjust detaining of the cattle aforesaid as for his costs and charges by him about his suit in this behalf laid out and the same day was given to the said E. F. here c. At which said next County Court the same 15. day of May in the yeare abovesaid before the same Sheriff of the County aforesaid held came the said E. F. by his Attorney aforesaid And the same I. S. Bayliffe of the Wapentake aforesaid sent not his precept thereof Therefore as before it is commanded to the said I. S. Bayliff c. that he cause to come here at the next County Court before the same Sheriff of the County aforesaid to wit the 12 day of A. in the yeare abovesaid at the castle of Y. aforesaid to be held the 12th c. to enquire c to inform aforesaid c. At which day to wit the 12th day of April aforesaid before the same Sheriffe of the County aforesaid came the same E. F. by his Attorney aforesaid And the said I. S. Bayliffe c. and one of the Ministers of the same Court returned before the same Sheriffe the said precept de venire fac in all things served and executed And thereupon the Jury being thereof impannelled and called came and to enquire in forme as aforesaid sworn and charged say upon their oath that the said E. F. sustained damages by reason of the taking and unjust detaining of the Cattle aforesaid besides his costs and charges by him about his suit in this behalfe laid out 30 s. and for these costs and charges to 12 d. Therefore it is considered by the Court here that the said E. F. recover against the said A. B. and C. D. his said damages by the Jury aforesaid in form aforesaid assessed and also 26 s. to the same E. F. by the Court here for his said costs charges of his assent of increase adjudged which said damages in the whole amount unto 57 s And the same A. B. and C. D. in mercy c. Whereupon it was commanded to the same I. S. Bayliff of the Wapentake of W. aforesaid that of the goods and Chattels of the same A. B. and C. D. in his Bayliwick he should levy the damages aforesaid and that he have the money before the said Sheriffe at the next County Court at the castle of Y. to be held to wit the tenth day of March in the yeare abovesaid to render to the said E. F. for his damages aforesaid Whereupon the same E. F. prayeth that the said A. B. and C. D. would assigne and declare to the Court herein what or wherein false judgement is made to him in the said Plaint if any thing can be found proved or made appear c. And hereupon the same A. B. and C. D. say that the said Record is vitious and very much defective in this to wit that by the same Record it appeareth that the same cattle were taken the 15. day of January in the yeare abovesaid and that the complaint thereupon was levyed at the County Court of the Sheriff the 19th day of December in the yeare abovesaid so that the complaint was levied before the taking of the cattle afore made c. Also in this that by the Record it appeareth that the County Court aforesaid was held before the said Sheriffe of the County aforesaid whereas the same Court ought to be held before the same Sheriffe and suitors of the same Court so that the same Plaint was levied Coram non judice And the processe thereupon adjudged without any warrant in Law And so the same A. B. and C. D. say that in the County aforesaid false judgement was done to them in the said Plaint And pray that the said judgement for those errours and others in the same record and proceedings being may be revoked adnulled and altogether taken for nothing And that they unto all things which they by occasion of the judgement aforesaid have lost may be restored c. It was commanded the Sheriffe that if A. B. should secure the same Sheriffe to prosecute his complaint that then taking with him four discreet and lawfull Knights of the County aforesaid in his proper person he come to the Court of the Honour of P. and in full Court cause to be recorded that Plaint which was in the same Court of his Highnesse the Lord Protector between C. D. and the same A. B. in a certain Action upon the Case to the same C. D. by the same A. B. done as it is said Whereupon the same A. B. complaineth false judgement to be made to him in the said Court and that he should have here the Record at this day to wit Octab. Hill under his seal and by four lawfull men of the same County of those who shall be present at the Record and that he summon by good summoners the said C. D. that he should be here to hear that Record And that he have then here the names of the foure Knights and that Writ c. And now here at this day to wit Octab. Hill came as well the same A. B. by S. D. his Attorney as the same C. D. by P. P. his Attorney And the Sheriffe to wit G. M. Esq now returneth that the same A. B. found to the same Sheriff pledges to prosecute Io. Doo Ric. Roo And that the same C. D. was summoned to be here at this day by Io Den and Ric. Fen and that he by vertue of the same Writ to him directed took along with him I. S. W. P. I. H. and W. VV. four discreet and lawfull Knights of the County aforesaid and in his proper person came to the said Court held at P. in the County aforesaid the 15th day of October in the yeare of our Lord 1657. and in full Court made to be recorded the said Plaint whereof in the same Writ mention is made which said Record here at
to the said A. W. by which an action accrews to the said A. W. to have and require of the said I. S. the said 24 s. Neverthelesse the said I. S. though often required c. For not setting forth of Tythes R. H. Farmer of all and singular the tythes of hay growing within the Parish of F. in the County of Y. by vertue of a Writ of justicies by R. N. his Attorney complains of T. W. upon a Plea that he render to him 6l of c. which he oweth to him and unjustly detains For that whereas the said T. L. the day yeare c. at F. aforesaid in the County aforesaid c. was possessed and occupied of and in four acres of Medow in F. aforesaid and Parish aforesaid and being so possessed he the said T. W. did then and there cut down the grasse growing in and upon the said four acres of Meadow and two loads of hay there coming to the value of 40 s. then and there did take and carry away before he the said T. W. had set out and severed the tythes or tenth part thereof from nine parts of the same or agreed for the said tythes or tenth part thereof which the said R. did against the form of the Statute in the 5th yeare of E. 6. in such like case made and provided VVhereupon action doth acrew to the said R. H. to have and demand of the said T. VV. the said 6l that is to say the treble value of the said hay so carried away Yet notwithstanding the said T. VV. though often requested c. Vpon an Award R. H. by vertue c. by E. B. his Attorney doth complain of H. S. of a Plea that he render unto him 10 l. of c. which he oweth him and unjustly detaineth c. For that whereas the 25th day of A. in the yeare c. at the Castle c. it was concluded and agreed betwixt the said H. S. on the one party and the said R. F. on the other party that they and both of them should stand and abide the order doom and Judgement of I. D. and M. L. of all and every the suits troubles differences debts trespasse or whatsoever hath formerly been in any kinde of dealing betwixt them two from the beginning of the world to the day of the date of the said writing being the said 25. day of A. or else one or either party not standing thereto to forfeit to the other parties the sum of 10 l. of c. And for confirmation thereof they did both of them set to their hands and seales the day and yeare first above written at the Castle aforesaid c. as by the writing thereof ready to be shown to this Court may appear And whereas afterward that is to say the day yeare c. at the Castle c. the said I. D. and M. L. taking upon them the charge of the premisses by their order in writing bearing date the same day and yeare last above mentioned and here in Court to be shown did arbitrate order and award that the said R. F. should deliver to the said H. S. one parcell of starch then into the hands of the said R. F. and the bag wherein the starch is put affirmed to be the goods of the said H. S. upon the sight of the said Order And further they did thereby order and award that the said H. F. should pay or cause to be paid to the said R. R. upon the sight of this order the sum of 50 s. of c. And that all those suits debts trespasses or debates whatsoever from the beginning of the world until the said 25. day of April the yeare c. should utterly cease and have an end or else the party not standing to the same to forfeit as in the said Order is expressed the sum of 10 l. as by the said award sealed the said day year c. by the said Arbitrators and here in Court ready to be shown may appear And the said R. F. in fact saith that though he hath performed all things in the said award on his part to be performed Yet the said H. S. hath not performed any thing in the said award on his part to be performed And namely for that the said H. S. hath not paid to the said R. F. upon the sight of the said Order being the day yeare c. at the Castle c. the sum of 50 s. of c. whereby action doth accrew to the said R. F. to have and demand of the said H. S. the said 10 l. The said H. S. notwithstanding though often thereunto requested the said 50 s. to the said R. F. hath not yet paid but the same to pay c. For Attorneys Fees R. A. Gentleman c. by T. S. his Attorney doth complain of W. P. of a Plea that he do render unto him 1 l. 17 s. 2 d. of c. which he doth owe unto him and unjustly detains from him For that whereas the said W. P. the day yeare c. at the Castle of Y. did retaine him the said R. A to be the Attorney of him the said W. P. in the County Court holden at the Castle of Y. in the County of Y. before the suitors of the same Court to prosecute as the Attorny of him the said W. P. for him the said W. P. in a certain Action in the name of him the said W. P. against one T. C. of a Plea of Debt from the said day and yeare c. so long as should please both parties taking for his fees and paines in that behalfe sustained every Court day in which he the said R A. should be the Attorney of him the said W P. in the said cause 2 s. of lawfull c. besides his other reasonable charges and expences by him the said R A. in and about the prosecution of the said action to be laid out By vertue of which said retainer the said R A. was the Attorney of him the said W. P. for eight Court dayes then next following and that he did lay out to the Clark and other Offices of the said Court in and about the prosecution of the said suit 1 l. 1 s. 2 d. of c. which together with the 16 s for his fees for the said Court dayes doth in all amount to 1 l. 17 s. 2 d. of c. By reason whereof an action doth accrue to the said R A. to have and recover of him the said W P. the said 1 l. 17 s. 2 d. yet the said W P. although often requested the said c. to the said R A. he hath not rendred but to render the same to him he hath altogether hitherto refused and doth yet refuse to the great damage of him the said R A. Whereupon he saith that he is damnified and hath damage to the value of 35 s. And thereupon he brings this suit c. Vpon a Lease for Tythes W.
aforesaid in their Demesne as ofsee Between which said Closes there is a certain hedge separating each from other the aforesaid Closes which said hedge the aforesaid D. and all they whose estate the same D. hath in the Close aforesaid from time out of minde were accustomed to make repaire and sustain and say that that hedge for want of reparation and sustaining of the same was at the time of the Trespasse aforesaid supposed to be made broken down and laid prostrate to the ground and that the Cattel of the said A. and B. in their Close aforesaid put to depasture into the said Close of the aforesaid D. by the breach and decay of the said hedge did enter against the will of them the said A. and B. and the grasse aforesaid did eat up tread down and consume the same A. and B. their Cattle aforesaid freshly pursuing into the said Close of the said D. by the breach and decay aforesaid did enter to drive backe their Cattle into the said Close of them the said A. and B. and into that Close speedily drove them as it was lawfull for them to do which is the same trespasse and breach of close and feeding treading downe and consuming the grasse aforesaid whereof the said D. above against them complaineth And this they are ready to averre c. whereupon c. The Defendant upon a Replevin avoweth the taking of the Cattle doing Damage Feasant ANd the said A. by c. cometh and defendeth the sorce and injury when c. and doth well avow the taking of the said Cowes in the said place in which c. and justly c. because he saith that he is seized and at the time of the said taking was seized in one Messuage and 12 acres of Meadow with the Appurtenances in the said Towne of S. whereof the place in which c. the said Cowes were taken as parcell in his Demesne as of Fee And for that he at the time of the said taking found the said Cows doing damage in the said place in which c. the said A. those Cowes in his ground and free-hold so doing damage took as to him it was lawfull And this he is ready to prove whereupon he prayeth judgement and the returne of the said Cattle c. Misnomer in the Writ of Justicies ANd hereupon comes Alvered Pease by W O. his Attorney and saith that he being by vertue of the said Writ of Iusticies summoned by the name of Abraham Pease neither is nor can be understood the same person against whom the said E. W. hath brought his Writ by the name of Abraham Pease For he saith that he is named called Alvered Pease and by the same name and sirname from the time of his nativity always known and called without that that he is named or called Abraham Pease or by the same name and sir-name was ever known or called as by the said Writ is supposed And this the said Alvered is ready to aver and prove whereupon he demandeth Judgement of the said Writ and that the same may be quashed c. Non cepit to a Replevin ANd the said B. by S. H. his Attorney cometh and defendeth the force and wrong when c. And saith that he did not take the Cattle aforesaid as the said A. above against him complaineth And of this he putteth himselfe upon the Countrey And the said A. likewise c. Property ANd the said B. by S. H. his Attorney cometh c. and saith that the property of the Cattle aforesaid at the supposed time of their taking was in the said B. and not in the said A. And this he is ready to prove whereupon he prayeth Judgement c. Demurrer to a Declaration ANd the said B. by C. D. his Attorney comes and desends the force and injury when c. And saith that the Declaration of the said P. and the matter therein contained are not sufficient in Law for the said P. to maintain his action aforesaid against him the said B. to be had And that he to that Declaration in manner and forme aforesaid made hath no need nor by the Law of the Land is bound to answer And for causes of Demurrer in Law in this behalse the said B. according to the forme of the Statute in this behalf provided doth shew to the Court these causes following That is to say that the said Declaration doth contain double and insufficient matter and wants forme and this he is ready to aver whence for default of a sufficient Declaration in this behalse the same B. prayeth Judgement and that the said P. may be barred of having his action against him c. Joyning in Demurrer ANd the said P. saith for that he above declaring hath in his said Declaration alleadged sufficient matter in Law to maintain his said Action to be had against the said B. which he is ready to aver which matter the said B. doth not gainsay nor thereunto at all answer but wholly refuseth to admit that averment prayes Judgement and his debt aforesaid together with damages by reason of the detaining of the said debt to him to be adjudged c. If it be in Trespasse then thus PRayes Judgement and his damages by reason of the sayd Trespasse or Trespasse and Assault or Trespass Assault and Imprisonment as the case is to him to be adjudged c. If in an Action upon the Case PRayes Judgement and his damages by the occasion before specified to him to be adjudged c. OF THE JUDICIAL AND MINISTERIAL POWER OF SHERIFS TO treat of the Originall or first Institution of Sheriffs in this Common-wealth is not here necessary being already done in the tract of the County Court or first part of this our subject matter Therefore we will initiate with the office of Sheriff in which office he hath triplicem custodiam a three-fold custody viz. 1 Custos vitae Reipublicae The Conservator of the life or peace of the Common-wealth 2 Custos vitae Iustitiae The preserver of the life of Justice for no Suit doth commence and no Processe is executed but by him 3 Custos vitae legis The Guardian or Tutor of the life of the Law for after tedious and long spun suits he is to make due execution which is the very life and spirit of the Law Now as he is Custos vitae Reipub. or Principalis conservator pacis within the County he hath a Judicial authority in the other two a Ministeral 1. And first to discover his Judiciall power And as he is a preserver of the peace he may ex officio upon request command and cause another to finde sureties of the Peace and may take the same sureties by Recognizance for all Obligations that he takes to that end are as Recognizances in Law And if he see one man assault another or if an assault be made upon himselfe he may compel them to finde sureties of the
if he hath Assets there 16 E. 3 Execution 49. and a man may well pray Execution of the body in one County and an Elegit of the land in the other County Execution 38. If a Statute Merchant be sued of parcel of the Lands of the Conusor in the name of all his Lands he shall never extend on the rest of the lands Mic. 22. E. 3. f. 14. If three are bound to one in a Statute Merchant and every one of them by themselves quemlibet eorum perse I may sue Execution against one of them only or against them all at my pleasure If an Infant bind himselfe in a Statute-Merchant or Statute-Staple he may avoid this during his Non-age by Audita Querela and also he may have his Audita Querela after his full age to avoid this Statute by matter of fait and the like law if the Statute be acknowledged by dures of imprisonment Statute Staple WE now come to the laying open a Statute-Staple which is duplicate to use the words of Mr. West viz. either 1. Properly so called or 2. Improperly 1. A Statute-Staple properly so called is an Obligation acknowledged before the Major of the Staple in the presence of one or two Constables of the same Staple And by vertue of such Statute-Staple the Creditor or Recognisee may forthwith have execution of the body lands and goods of the Debtor or Recognisor and this is founded upon the Statute of 27 E. 3. c. 9. 2. A Statute-Staple improper is an obligation of Record founded upon the Stat. of 23 H. 8. c. 6. of the nature and validity of a proper Statute-Staple as touching the form and Execution thereof and acknowledged before one of the chief Justices and in their absence before the Major of the Staple at Westminster and Recorder of London You have the forms of all these Obligations or Statutes in West part 1. Symb. L. 2. Sect. 152. 153. 154. 155. It is sealed with three seals viz. with the seal of the Conusor with the seal of the Protector and of one of the said Iustices or of the Major and Recorder 23 H. 8. c 6. And note that all Statutes Staple and Merchant shall be brought to the Clerk of the Recognisance within four months and inrolled within six months otherwise such Statute shall be void against Purchasors c. 27 Eliz. c. 4. The maner of the proceeds upon it are the same with the Statute-Merchant saving that in a Statute-Staple presently after the Certificate into the Chancery the Conusee shall have a Writ to take his body and extend his Lands and goods returnable in Chancery and this writ is a Commission directed to the Sheriff of the County where the Lands and goods lie for the valuing of the same whereby all the lands goods and chattels of the Conusor shal be apprised and valued at a reasonable rate by a Jury of men sworn charged by the Sheriff for that purpose which Inquisition so taken is to be returned by the Sheriff and thereupon the lands goods and chattels are to be taken into the Sheriffs hands and by him to be delivered to the Conusee which the Sheriff may do if he will without any Writ to hold unto the Conusee until he be satisfied his debt and damages And if the Sheriff refuse so to do the Conusee shall have a writ out of the Chancery called a Liberate to compell him to deliver to the Conusee the lands goods and chattels so found by inquisition and taken into his hands upon the Extent which the Sherif need not return Fitz. Accompt 97. Execution in toto Broo. Stat. in toto Stat. Acton Burnel de Mercat 27 E. 3. 9. F N B. 130. 131. 132. Dyer 180 Coo. 4. 67. Plow 61. 62. 82. Co. super Lit. 290. Coo. 5. 87. c. See more of the proceeding in Statute-Merchant It was adjudged in B. R. Hil. 42. Eliz. that a debt recovered in the Kings Court by Judgment shall be paid before a Bond in nature of a Statute-Staple or Merchant because the Judgment is a matter of a more high and worthy nature then private portable pocket Records also it shall be preferred before a Recognisance acknowledged in any Court by assent which may also be privately done and a Judgment so given in the Kings Court upon ordinary and judicial proceedings which remain in the custody of a sworn Officer are Records which are preferred in Law before such Statutes non refert whether the Judgment or Recognisance or Statute be first for be the Judgment first or last it shall be first satisfied c. And so it was holden per totam curiam in the Common Pleas in Pemberton and Bartams case Plow 32. El. Rot. 235. which see in the end of Sadlers Case in the 4. Reports Dyer 80 53. Recognisance what it is WE now come to the third which is Recognisance and that is an Obligation or Bond of Record acknowledged in a Court of Record testifying the Recognisor to owe to the Recognisee a certain summe of money and is acknowledged in some Court of Record or before some Judge or other Officer of such Court having authority to take the same as the Master of the Chancery the Judges of either Bench of the Exchequer Justices of Peace c. And those that be meer Recognisances are not sealed but inrolled And yet some are sealed with the seale of the party and may be with condition annexed or may be single and then to have Indentures of defeasance If the money be not paid at the day the Conusee proceeds upon it after this manner The Conusee his Executor or Administrator is to bring a Scire facias against the Conusor or if he be dead against his heirs when they be of full age or if the Lands the Conusor had at the time of the entering into the Recognisance be sold against the Purchasors of those Lands which the Conusor had at any time after the Recognisance entred into to warn them to come into that Court whence the Scire facias cometh and to shew cause why Execution should not be done upon the said Recognisance And if the party or parties cannot be found to be warned or being warned do not appear at the time or appearing shew no cause why the debt should not be levied then the Conusee shall have Execution of a moyty of his Lands by Elegit or if the Conusor be living of all his goods by Levari or Fieri facias at his Election but he cannot have Execution of his body unlesse he bring an action of debt upon the Recognisance or it be by course of the Court as it is in the Upper Bench upon a Bail in which case a Capias doth lie Dyer 360. 315 West 2. 18. Broo Execution 129. Co. 3. 11. 15 H 7. 16. Kitch 117. And the proceeds against Sureties in Statutes shall be as the
Law Decies tantum subornation of perjury concealment such as are not outlawed abjured condemned in a Premunire or attaint of Treason felony c. 11 H. 4. cap. 9. Return of Issues HE is to returne good sufficient and reasonable Issues and upon such persons as have sufficient goods and lands according to the Stat. of Westminst 2. cap. 39. E. 3. cap. 5. Of Escapes and what damage doth occur to the Sheriffe by them THe Sheriffe ought to be very cautious in electing a vigilant and honest Gaoler and such a one as is able to give sufficient security for his indempnity and true performance of his office and to answer all escapes for of all the Officers that appertain to the Sherif the Gaoler ought to be most circumspect otherwise many escapes would happen And first to define what an Escape is It is here to be understood where one that is arrested and imprisoned in the common Gaol of the county and cometh to his liberty before that he is delivered by the award of any Justices or by order of Law If the imprisonment of him that escaped were for felony then that shall be felony in him that did voluntarily not otherwise suffer the escape and if for treason then it shall be treason in him and if trespasse then trespasse c. Although the prisoner which escapes be out of the view yet if fresh suit be made and he be reprised in recenti insequtione he shall be in execution otherwise at the turning of a corner or by an entry of an house or by any other such meanes the prisoner may be out of view Co. 3. Rep. Rigweys Case If the Sheriffe doth assent that one who is in execution and under their custody shall goe out of the Goal for a while and then return although that he returne in the time yet this is an escape for the Sheriffe ought to guard him in salva et arcta custodia and the Statute of Westm 2. c. 11. saith quod carceri mancipentur in ferris So that the Sheriff may keep such as are in Execution in yrons and fetters till they have satisfied their Creditors It is adjudged if one be in Execution no commandement although of the Protector himselfe without writ is a sufficient warrant to discharge the Gaoler and so by the same reason shall not discharge the Sheriff Where the Sheriffe dyeth and one in Execution breaketh the Gaole and goeth at large this is no escape for when a Sheriff dyeth all the prisoners are in the custody of the Law untill the election of a new Sheriffe If a woman be Warden of the Fleet and a prisoner in the Fleet marrieth her this shall be judged an escape in the woman and the Law judgeth the prisoner to be at large Plow Comment Plats case If the Sheriff remove his prisoners out of the County without being commanded it is an escape But if he remove them from one place to another in his County as he changes his Gaole it is no escape but if he remove his prisoners for their ease and delight in the same County it is an escape As the case was cited by Harvey Mich. 3. Char. Com. Banc. That the Sheriffe went with his prisoner to a Beare-baiting in the same County and it was adjudged an escape And Hutton Justice said that if a Sheriffe permit his prisoners to go to worke for their benefit it is an escape And the question was if in an Audita Querela for a voluntary escape of one in Execution there should be bayle And the opinion of the Court was That if it appeares that the cause upon which the Audita Querela is grounded is called a good proof by the Record and that he should not be bayled unless good and speciall bayl If a prisoner of his owne wrong escape and flye into another County the Sheriffe or his Officers upon fresh suite may take him againe See Daltons office of Sheriffs If a prisoner in the Gaole attempteth to escape and having broken his yrons striketh the Gaoler coming in the night to his prisoner and the Gaoler slayeth him it is no felony 22 Ass 35. An Action of Debt was brought against a Gaoler for an Escape who said that the Sheriff did not deliver him lawfully to him And it was therefore ruled 13 Edw. 3. Fitz. tit Barr. plac 253. That to be kept in salva arcta custodia 13 E. 3. Fitz tit he shall not take benefit nor any notice whether he was lawfully delivered to him in Execution or not But he being once in his custody he ought to keepe him in arcta salva custodia subpoena salva for the Gaoler and arcta for the party the Plaintiff the party by this being coarcted to pay the debt Mich. 12 Jac. An action upon the Case was brought against the Sheriffe of N. for an escape upon Not guilty pleaded all the speciall matter was found and shewed to the Court which was this That a Capias did issue to the Sheriffe to take one Iohn which was by a wrong name and the Sheriffe returned a Non est Inventus and upon this a Testatum issued out to him and therein named him by his right name Upon this the Sheriffe tooke him and had him in Execution and afterwards suffered him to escape The whole Court agreed that the Sheriffe is answerable for this escape notwithstanding the first Capias was by a wrong name for he was taken and suffered to escape here upon Not guilty pleaded the special matter was found and shewed that the first Capias was by a wrong name yet the Court was cleer of opinion that he being taken and in Execution by his right name though the first Capias was erroneous and not right the Sheriffe shall be chargeable for this escape clearly and so by the rule of the Court judgement was given for the Plaintif I thinke it very pertinent to our subject matter and 't is well worth observation to transcribe Whitings Case against Sir George Reynell Marshall of the Kings Bench in the second part of Crooks Reports fol. 657. and 658. viz. Debt for 202 pounds whereas he recovered against Thomas Abingdon and Mary his Wife in trespasse for damages 202 pounds and the said Mary was committed in Execution to the Defendant upon this Judgement That the Defendant 24 Novemb. 16 lac suffered her to goe at large whither she would his debt not being satisfied per quod actio accrevit The Defendant pleaded That she brake Prison and escaped and freshly followed her and took her again 21 Octob. 17 Iac. in fresh suit and had her in Execution and yet hath her c. VVhereupon the Plaintif demurred And it was now angued that this plea was not good because the escape is alleadged 24 Novemb. 16. Jac. and the Action is brought Pasch 17 Iac. And this reprisall is alleaged a yeare after the escape and after the
because he is conservator of the peace but now it seems the power is transferred to the Justices of the Peace onely See the Stat. 1 R. 3. c. 3. 3 H. 7. 3. If a prisoner bailable tender sufficient sureties to the Sheriff and he refuseth he shall be amerced to the Protector and Informer 40 l. and shall lose treble damages to the party grieved If a person be arrested by vertue of any Writ or precept in any Action personall upon tender of reasonable sureties to appear at the day and place as the said Writs Bills or Preceps shall require he shall be bailed 23 H. 6. cap. 10. Fitz. 251. b. And the person is not obliged to go to the Sherif if he offer sufficient baile to the Baylif Persons apprehended for any manner of Treason or Felony shall not be bailed Westm 1. Cap. It is the constant course of the Upper Bench that the Bail is never chargeable till there is default assigned in the principall upon the return of a Capias ad satisfac And if the principall render his body though the Plaintiff refuse to take it yet that is a discharge of the baile Winch Rep. fo 62. It is not repugnant to our present subject to transcribe the new Rules concerning speciall Bayle viz. 1. That if the Defendant appeare upon the Summons Attachment or Distresse or by Supersedeas quia improvide or doth truly render himselfe upon the Exigent no baile is requirable 2 That in all causes of removeall be it by Habeas Corpus Priviledges or Certiorari speciall bail ought to be given 3 That in causes where the Defendant comes in by Cepi corpus be it Debt Detinue Trespasse for goods Action upon the Case except slander if the debt or damages amount to 20 l. special baile is to be given except it be against an Heire Executor or Administrator 4 That in Covenant because the damages are uncertain till Declaration bail at discretion 5 That in Battery Conspiracy false imprisonment no speciall baile of course without special motion and order 6 That in slander no speciall baile except in slander of title wherein to be left to the discretion of the Judges 7 That in priviledge other then for sees and disbursments as an Attorney in this Court baile at discretion of the Court. In such case wherein a suite by a common person especiall baile is not requisite 8 That if baile be given upon reversall of an Outlawrie or removall by Habeas Corpus the Originall to be shewne upon tendring of the Declaration otherwise the baile not liable unlesse the party or his Attorney will voluntarily appeare or take a Declaration without shewing of it 9 That in case of a removall out of an inferiour Court or reversall the new Originall to agree in the nature of the Action the summe in demand and the County otherwise the baile not lyable but if the partie will voluntarily appeare to such varying originall to be good as to the partie but if upon a cause removed by Habeas Corpus out of the Courts of Canterbury Southampton Hull Litchfield or Poole which are Counties where the Judges of Nisi prius seldome come if the Action be transitory it must be laid in the County of Kent Southampton Yorke Stafford or Dorcet where the Towne and County lieth and the Recognizance to be taken accordingly 10 That the Principall rendring himselfe at any time after bayle put in and before or upon the day of appearnce of the scire fac returned scire feci or of the second scire facias returned Nihil or in case there shall be an Action of Debt brought upon the Recognizance against the Bayle then if the Principall shall render himselfe upon or before the processe returned or served no further proceeding to be against the Bayle Of the Election of Parliament men how and when they are to be elected c. THe manner of electing Knights of the Shire is as followeth viz. At the next County Court after the delivery of the Writ Proclamation is to be made in full County of the day and place of the Parliament and that all there present as well Suitors summoned as others shall attend to the election of the Knights and then in full County a free and indifferent election shall be made notwithstanding any request or mandate to the contrary And note that no Election can be made by any Knight of the Shire but between the hours of 8 and 11. in the fore-noon but if the election be begun within the time and cannot be determined within those hours the election may be made after And if any election or voyces be given before the Precept be read and published are void and not effectual Likewise he ought immediately after the receipt of the Writ of his Highness for the summoning of the Parliament to make his Precepts under the seal of his Office to every Major and Bailiff of Cities and Boroughs within his County commanding them thereby to choose Citizens and Burgesses to come to the Parliament And those Majors and Bayliffs must make a legal return of that Precept to the Sheriff of their election and their names that are elected The Sheriff setting his hand and seal of Office to one part of the Indentures delivering it to the Major Citizens or Burgesses to be kept the Major Citizens or Burgesses setting their hands and seals to the other part delivering it as their Deeds to the Sheriff to be certified and returned by him with the writ of summons to the Clerk of the Crown whose see is 4 s for every Indenture 23 H. 6. cap 15. Crompton 208. P. Parl. 5. Note that after the Precept of the Sheriff directed to the City or Borough for making of election there ought Secundum legem consuetudinem Parliamenti to be given a convenient time for the day of election and sufficient warning given to the Citizens or Burgesses that have voices that they may be present otherwise the election is not good At the election if the party elected or the Freeholders demand the poll the Sheriff cannot deny the scrutiny for he cannot discern who be Freeholders by the view and though the party would wave the poll yet the Sheriff must proceed in the scrutiny And by the Stat. of 8 H. 6. c. 7. 10 H. 6. c. 2. The election of Knights of the Shire shall be made by the more voices of the people dwelling in the Counties having each of them lands or tenements of the yearly value of 40 s. besides reprises and the Sheriff hath power to examine upon oath the choosers how much they may expend by the year After such election the names of the parties so elected be they present or absent shall be written in an Indenture under the seals of all those that did choose them which Indenture so sealed and taken to the said writ shall be the Sheriffs return thereof touching the Knights of the Shires
HEe cannot enquire of the Statute of Labourers or indict one feloniously committing a Rape yet such Indictments must be delivered to the Justices of the Peace according to the Statute of 1 Ed. 4. Bract. praesent 16. Fitz. Tourne 3. 4 Edward 4. 8 Edw. 4. 5. He cannot commit any man to prison for his contempt neither can he take recognizance or binde a man to good behaviour as formerly he might and as the Sheriffe in his Tourne may do Yet Co. Instit 4. fol. 263. holdeth that he may take a Recognizance for the peace He cannot hold plea of any thing appertaining to the Crown nor touching Free-hold or Lands nor debt trespasse or otherwise This Court cannot take Indictment of any Felons for the death of any man or in any other case wherein it hath no cognizance If it doe it is Coram non judice and voyd neither can it take a presentment of an offence done to a Parish or a particular man Such things as are Trespasses by the Statute or offences against any Statute the Sheriffs Office doth not extend to it here except the Statute doth give in it an expresse authority to the Tourne or Leet for Nulla est generalis regula sed admittit exceptionem Nothing but Nusances and Grievances Offences or Trespasses as are popular and common to many persons And therefore Trespasses for breaking of Closes nor Assaults made to a sole and particular person is here inquirable except there be blood-shed It was the occasion of a very learned Contest or Argument Pasch 24 Car. B. R. whether a Court Leet may enquire of private Assaults and Batteries if there be no blood-shed in the case Bacon Justice and Walker an Apprentice of the LAW in the Inner TEMPLE held that a Court Leet might enquire of them But Justice Roll held the contrary because they are actionable at the COMMON LAW onely by the party injured and are not publique offences against the publique Upon all Presentments and Indictments taken before the Sheriffe in his Tourn he hath not power to attach arrest or put in prison nor to levy nor take any Fines or Amerciaments of any person so indicted or presented betore them by reason or colour of any Indictment or presentment taken before them in their Tournes but the Sheriffe shall bring and deliver all such Indictments and Presentments to the Justices of Peace at the Sessions that shall be holden for the said County if not a forfeiture for every one not delivered 40 l. What things are considerable in holding Tourns or Leets HAving demonstrated what things are to be enquired of here and what are not Now three things are considerable in the holding of Tourns or Leets viz. 1. Time 2. Place 3. Persons 1. As to the time it must be kept twice a yeare according to ALFRED quotannis celeberimus bis conventus agetur one moneth after EASTER and one moneth after MICHAELMAS At the Tourn after EASTER no Actions popular are to be enquired after c. but onely to take their suite who are Suitors and to take the view c. And at the Tourne after MICHAEELMAS then to enquire of such as are enquirable 2. Now to the place where it is to be holden and that must be within the Precinct and Libertie in loco debito consueto and if it be done otherwise what ever is acted in it is voyd coram non judice 3. Thirdly what persons are to appeare in this Court they are all the Freeholders within the Precinct or Liberty are obliged to come by the service of their Fees and all other people above the age of 12 years and under 60. only Ecclesiasticall and religious men all Earles Barons Tenants in ancient demesne and all women are excepted because they are never sworn upon any Inquest Jury What. THere must be at the Court twelve at the least of the most discreet and sufficient Freeholders such as are of repute and estimation and have Freehold Lands within the same County of the value of twenty shillings at the least who ought to be impannelled and sworn by the Sheriff to enquire of and present all things there inquireable and presentable who ought to take all Indictments by their oathes and must deliver in their rolls and inquisitions indented and sealed between the Sheriff or Steward and the Jurors And if there be not twelve to be sworn the Sheriffe or Steward may cause strangers that come within the view to be of the Inquest How Amerciaments are forfeited and what shall be causes to amerce c AMerciament in Latine is called misericordia because it ought to be assessed mercisully and ought to be moderated by affeerement of his equals otherwise a Writ de moderata misericordia lieth or because the party offending putteth himselfe on the mercy of his Highnesse And the difference betwixt a Fine and an Amerciament is That a Fine is assessed by the Court but Amerciament by the Countrey Of Amerciament BUT to demonstrate the cause of Amerciament viz. The not appearing of a Leet is a good cause to amerce a Reâ—iant and the Lord who distrains for the amerciament needs not shew for what he distraineth before the tenant hath tendered something for amends although the tenant doth not know the cause 45 E. 3. 9. Avowry 80. vi 11 H. 4. 89. 12 H. 7. 15. If a man be amercied for a thing done in a Towne wherein he dwelleth he may be distrained for it in any place within the Hundred or Leet 11 H. 4. 88. A Suitor at a Leet may be amercied for not presentting things presentable being sworne with others and a generall Avowry but he may say that there was nothing to be presented 11 E. 3. 9. Avowry 155. 10 H. 6. 7. Coo. lib. Enteries Det. 149. Coo. part 8. Griesleys case A Resiant was amercied for not clensing of a Ditch and a paine levied upon him that he clensed it after and a distresse taken for not doing of it c. 29 E. 3 36. 41 E. 3. 26. Resiants and tenants may be amercied in the Leet for refusing to swear 38 E. 3. 18. Conusance 23. The Lord of a Leet shall not prescribe to amerce the petty Jury for their false verdict the same being sound by the grand Jury for it is no good custome but they may be amercied for concealing of any thing which is presentable there and this is by custom M. 9. H. 6. 42. Custome An amerciament in a Leet may be well levied by an action of debt 12 H. 2. Ley 43. 10 H. 6. 7. One was amermercied for brewing Ale and selling it contrary to the Assize within the Hundred and it was holden that although he was resiant within another Leet yet the amerciament is good where it is made so it is where one sels Bread and Ale in a Market which is in another Leet then where it was brewed
c. Ass 13 E. 3. Avowry 105. If my Horse be in the keeping of another man he may be distrained if I be amercied in the Leet for stopping the High-way c. 47 E. 3. 12. But if an Inne-holder be amercied the horse of a stranger cannot be distrained 10 H. 7. fol. 21. Note that in 8 R. 2. Avowry 194. If one be amercied in the Sheriffs tourn the Sheriff may distrain throughout the whole County and in like manner if the amerciament be in a Leet throughout all the precincts of the Leet The Statute of 1 E. 4. expresly appoints that no fine or amerciament in the Tourn or Leet shal be levied unlesse it be certified at the next sessions of the peace by Indenture inrolled there and by processe made from the Justices of Peace to the Sheriffe or Steward How Presentments in Leets shall be traversable NOte Scard saith that if a thing be presented at the day in a Leet this is as Gospel if it passe that day without being repealed And therefore if a false presentment be made he shall have an action of false imprisonment the same day against the prosecutors but if he stay until another day it is otherwise and he who is amercied there for purpresture or other Nusance in Avowry for the amerciament he shall traverse in no point Wilby If it be presented that he hath levied a Ditch over the Highway if the presentment be false he shall have trespasse against him who throwes it down by force of such presentment And so of my house abated by reason of such false imprisonment Hil. 21. E. 3. Bar. 271. He who is amerced in a Leet may traverse the resiancy but he shall not say that the place where c. is within another view 4 E. 3. 12. 10 E. 3. 5. 41 E. 3. 26. But if he hath been sworn in my Leet he shall not have the traverse 4 E. 3. 31. 10 E. 3. 9. The Method of keeping the Sheriffs Tourn or Court Leet LEt the Sheriffe or Steward make a Precept unto the Bayliffe to summon the Court by a reasonable time to wit fifteene or sixteene dayes before the Court be kept if it be lesse time it is sufficient in Law the Precept must be made according to this subsequent President A. B Esquire Sheriff of the County of Y. To the Bayliffe of the Liberty or Weapentake of S. greeting I command you that you diligently summon the Court with view of franke-pledge to be held within the said Liberty the sixteenth day of August next ensuing about the hour of eight in the forenoon of the same day at the common Tollbooth of R. And this given under the seale of my Office the twenty eighth day of July in the yeare c. By the Sheriffe If it be a Court Leet held in a particular Hundred or Mannor of any Lord then the form of the Precept is thus A. B. Gent. Steward of I. N Esquire of his Hundred or of his Mannor of O. to the Bayliffe of the same Hundred or Mannor greeting Commanding thee that thou summon this Court with the view of Frank-pledge of the said Hundred or Mannor to be held at the accustomed place of S. the 16. day of August next ensuing And this given under my seale the twenty eighth day of July in the year c. By me A. B. Steward After the Steward hath placed himself in the Court he must first enter the title of the Court in the beginning of the Court-Roll with the name of the place where the Court is holden in this manner The entry of the Court ss The view of Frank-pledge with the Court of A. B. Sheriffe of the County of Y. there held on Tuesday the 16. day of August in the yeare c. By the Sheriff If In the Lords Court then thus ss The view of Frank-pledge with the Court of I. N. Esquire there held on Tuesday the c. By A. B. Steward Then cause the Bayliffe to make three Proclamations repeating them after the Steward in this manner Proclamation ALL manner of persons who were summoned to appear here this day to serve His Highnesse the Lord Protector and the Sheriffe or the Lord of the Mannor for his Court now holden draw near and give your attendance and every one answer to his name as he shall be called upon pain and peril that may fall thereon After all are called and those that are absent be marked to be amercied then the Steward shall cause the Bayliff again to make other three Proclamations viz. O yes c. causing the Bayliff to say Proclamation IF any man will be Essoyned come into Court and you shall be heard and all such persons as were Essoyned the last Court let them come in now and warrant their Essoyns otherwise they will be amercied And if any desire to be essoyned by the Tythingman or other neighbour then for the first Court they may be essoyned The Essoyn must be entred in this manner A. B. is essoyned by C. D. c. Inquire if there be any tenant in the Mannor that hath any action or cause of action since the last Court day let him put in his plaint sedente curiâ viz. the Court sitting and it shall be entred Inquire if there be any Precepts attachments or distresses depending in the Court rolls call them openly in the Court and know if the Bayliffe have executed them Also if there be any old Plaints depending in the Court Roll before this court holden cause the parties to be called before the inquest be charged Then impannel the Inquest comanding the fore-man to lay his hand upon the book swearing him as follows You shall sweare that you shall diligently inquire and true presentment make of all such things as you shall be charged with concerning his Highnesse the Lord Protector or the Lords Court of the Mannor you shall well and truly keep his Highnesses Counsel your Fellowes and your owne you shall not conceale nor hide any thing for favour feare promise or affection you bear to any person or persons or present any thing for hatred or malice you beare to any man but you shall present and tell the truth according as things may or shall come to your knowledge by information or otherwise making a true presentment thereof without concealment so helpe you God c. After the fore-man is particularly sworne cause foure at once of the Inquest to lay their right hands together on the book swearing them in this manner The same oath which A. B. your fore-man on his behalfe hath made you and every of you shall well and truly keep on your behalfes so help you God Swearing the rest accordingly After they are all sworn cause the Bayliffe to number them as the Steward doth read them Then command the Bayliffe to make Proclamation saying after the Steward Proclamation YOu good men that are impannelled to enquire for his Highnesse the
the Lord allows thereof Yet to the Lease for one yeare it was answered That he must have a speciall custome or else it is not good unlesse it be for a tryall of a Title which hath been allowed because it is for reducing a Rite and for the Lords benefit And to the second it was said that admitting it is a forfieture yet the Lords acceptance of the surrender not knowing of the forfeiture is no dispensation therewith and consequently that the Lords Lessee hath a good estate and right in him for which his entry is lawfull this was approved good by the Court and the first part over-ruled Crook Rep. fo 169. A COPYHOLDER made a Lease for one yeare Et sic de anno in annum during the life of the Copyholder excepting one day at the end of every year for the Copyholder to enter and this onely for to avoid a forfeiture but it was cleerly resolved Mic. 8. Jac. B. R. rot 602. that this is a forefeiture of his Copyhold estate for if a Lease be made de anno in annum this must of necessity be a Lease for twenty and two years and so is Potkins case in 14. H. 8. fo 14. As to the reservation of one day at the end of every year to make his lease but for one year and so to be warrantable by the custome it will nothing avail him though he had excepted a moneth at the end of every year it would have been to no purpose for by this invention he hath a purpose to cheat and deceive his Lord but he is deceived himself Bolstrod 1. part fo 215. Iutterels case Mic 8. Jac. B. R. rot 602. If a Copyholder make a Lease for years to comence at Michaelmas it is a forfeiture presently Hetleys rep fo 122. A Copyholder may hedge and inclose but not where it was never inclosed before and he may dig for marl without any danger of forfeiture but he ought to lay the said marl upon the same Copyhold land and not upon other Land Easter 19. Jac. Winch. rep fo 8. But if land be digged to make a banck and if more be digged then is necessary it is wast and if it be not cast down for the land might be made barren 41. E. 3. Wast 82. The heir before admittance may enter and take the profits and make a Lease according to the custome or bring an action of treaspase against him who disturbes him But if the Lord require his Fine or his services and the heir refuse to do them this may be a forfeiture of his Copyhold But until lawful seisin made by the Lord because it belongeth to him the heir may intermeddle with the possession though he be not admited by the Lord where it is an Estate of inhetance by the custome Pophams rep fo 39. It is a forfeiture of a Copyhold for the Copyholder to refuse to pay his Fine if it be a Fine certain but if he refuse to pay a Fine incertain after it is set quaere whether it be a forfeiture or not for that Fine may be unreasonable See before forfit Or if he refuse to appear at his Lords Court and to do his service there Prac. Regist tit fo forfit Trin. 24. Car. R. B. yet if the Copyholders dwell in a Town far distant from the Mannor a general warning within the Mannor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a voluntary refusal so if a man be of that debility in body as he cannot travel without danger so if he have a great office c. these are good and strenuous causes of excuse It was likewise holden that if a Copyholder makes default at the Court and be there amerced although that the amerciament be not estreated or levyed yet it is a dispensation of the forfeiture But note that a general warning within the parish is sufficient for if the tenant himself be not resident upon his Copy-hold but elsewhere his Farmer may send notice to him of the Court Leonards rep first part fo 133. And note further by Hetly in his rep fo 7. Pasc 3 Car. C. B. that if a Copyholder be summoned to the Court by Common Proclamation or expresse notice and he does not appear it is no forfeiture because it is but a failer of service and no denyal and for the neglect he may be punished and fined If a man seised of Copyhold land in the right of his wife surrendreth the same to the use of another and the Husband dyeth it is no discontinuance to the Wife but that the Wife may enter and shall not be put to a Cui in vita nor the heir to sue a Cui in vita Coo. 4. 23. And if a Copyholder for Life surrendreth to the use of another in Fee it is no forfeiture for it passeth by surrender to the Lord and not by Livery and Copyhold Estates shall not have such qualities as Estates at Common Law have without special custome Ibidem Of the Office and Dutie of the Steward STeward in the Latine is called Seneschallas and is derived from the French word Sein a house or place and Schale an Officer or Governour some say that Sen is an ancient word for Justice so as Seneschal should signifie officiarius justiciae As to the word Steward it seemeth to be compounded of Stew and Ward and is a word of many applications yet alwaies signifieth an Officer of chief account within the place of his sway In this place it signifieth an officer of Justice viz. a keeper of Courts c. therefore for the prevention of many inconveniencies it would be no disadvantage to Lords to elect and constitute such as are exercised in the studies of the Provincial Lawes of this Commonwealth and the customes of Mannors Fleta lib. 2. cap. 26. describes the office of a Steward and councelleth Lords of Mannors and Liberties to provide or elect their Stewards in these words Provideat sibi Dominus de seneschallo circumspecto fideli viro provido discreto gratioso humili pudico pacifico modesto qui in legibus consuetudinibusque provinciae officio seneschalliae se cognoscat jura Domini sui in omnibus teneri affectet c. cujus officium est curias tenere Maneriorum de substractationibus consuetudinum servitiorum reddituum sectarum ad curiam mercata molendina domini advisus Franci-plegiorum aliarumque libertatum Domino pertinentium inquirat c. By which description it is observed that he ought to have a double qualification viz. 1. In Moralibus 2. In Judicialibus 1. In moralibus he must be qualified with these properties viz. Circumspection fidelity providence discretion c. which may be reduced to two general heads to wit verity and Industry 2. In Judicialibus and therein
he must be attended by the property of Knowledge as to be expert in the lawes of the Countrey and the customes of the Mannor and have ability to instruct and direct the Bayliffs and other ministers in dubious things Let us now descend to demonstrate his retainer into office c. A Lord of a Mannor may by parol retain one to be Steward of his Mannor and to hold the Courts thereof as well as a Bayliff may be and that by word and this retainer shall be as effectual in all points before discharge as the most effectual institution by Patent yet most commonly they have patents for their offices Co. 4. 30. and therewith accorderh 8 Eliz Dyer 248. Likewise it was adjudged in the common pleas in the Lady Julian Holcrofts case that whereas one was generally retained by the Lord of a Mannor by parol to be Steward of a Mannor and to keep his Courts that such Steward may take surrender of customary tenants out of the Court or make voluntary admittances or any other act incident to the office of a Steward for till such Steward be discharged he is Steward of the Mannor as well by the retainer by word as if he had a grant thereof by Patent Leon. fo 309. He represents the person of the Lord in many things for in the absence of the Lord he sitteth in Court as Judge to punish offences to determine controversies redresse injuries c. he acts some things in the Lords name and not in his own name for if the Steward admit any Copyholder or by special Authority or particular custome licence a Copyholder to Alien this admittance and licence shall be made in the Lords name and the entery in the Roll shall be Quod dominus per senescallum admisis licentiavit c. Co. of Copyholds fo 143. He must take care to Record and Enrol all the Conveyances of estates for it hath behn holden by some That if the Lord in open Court grant a Copyhold estate and no entry is made thereof in the Court Rolls that the grant is inavlid and that no collateral will make it valid Carthrop fo 47. But if the tenant have no Copy or lose his Copy the roll of the Court is a good evidence And if the wills be lost it is thought cleerly it may be supplyed by proof ibidem At every Court he is to swear some of the Tenants which is called the Homage these he chargeth with the Articles before mentioned and upon them they do present and upon this presentment the Steward is to proceed as upon the presentment in a Leet save onely that as it is said the Lord cannot bring an action of debt but is onely to distraine for the amerciament in this Court 2 H. 4. 24. For by the Common Law he hath no authority to assesse amerciaments or Fines in a Court-Baron but the suitors for they are the Judges and not the Steward Leonards rep first part 299. If the Steward take a bribe or use partiallity in any case depending before him of which crime many are too culpable or if by his Patent he be obliged to keep Court at certain times of the year and failes thereof the Lord receiving prejudice thereby not otherwise or if he be by his Patent obliged to keep Court upon demand or request to be made by the Lord and upon request and demand by the Lord he refuseth these and the like cases will make him subject to a forfeiture Co. of Copyholds fo 146. c. Of the Fees of the Court-Baron AS for the Fees of this Court they much differ and are by Law what they have been by custome time out of minde For some take the same Fees as are taken in the County court And other Courts take the Fees which follow The Stewards Fees FOr entring every Essoyne 00-00-02 Entering every action 00-00-02 Every Order entered 00-00-04 Entering a Declaration if it be large then more 00 00-04 Every Processe 00 00 04 Entering every plea or answer 00-00 04 Every Continuance 00-00-02 Every wager of Law and entry 00 00-02 Warrants for witnesses and summoning Juries 00-00-04 Every Non-suite and detraxit 00 00-04 Entering the Judgement 00 00-04 Satisfaction acknowledged 00-00 02 For removing and certifying a cause 00-06-08 The Bayliffs Fees FOr every Summons and entrance 00-00-08 For executing every Processe 00-00-04 For every shilling upon Judgment 00-00-01 For summoning the Jury 00-01-00 For summoning of Witnesses upon a Warrant 00 00-04 For every Oath 00 00-02 If there be Attorneyes then their Fees are FOr every cause if it be heard 00-01-00 For drawing the Declaration 00-00-06 For every Court the cause dependeth after he is reteined 00-00-06 See more in the Fees of the County Court The Oath of the Bayliff of a Mannor YOu shall swear that you shal well and truly serve his Highness the Lord Protector and the Lord of this Monnor for the year to come in the Office of Bayliff of the same Mannor and you shall duly and truly gather all such rents revenues or other yearly profits as shall be extracted out unto you and therefore you shall make and yield up a true account at the end of the said year and in every thing you shall well and honesty behave your self in the said office during the time aforesaid So help you God c. The Bayliff must be sworn before the Court end The form and method of Presentments which are to be drawn by the Steward I shall not trouble you with being copiously performed by Mr. Wilkinson in his office of Sheriffs fo 218 219 220 c. onely take these subsequent for methods sake The finding of the death of a Tenant and of a Surrender made to the use of his Will with an admission of the Tenant according to the Will THe Homage do further present that A. B. the elder Copyhold tenant of this Mannor dyed after the last Court and that he the said A. B. before his death that is to say the tenth day of May in the year c did surrender into the hands of the Lord of this Mannor by the hands of C. D. Copyhold Tenant of the said Mannor all and singular his Copyhold lands Tenements and Hereditaments holden of this Mannor to the behoofe and use of his Testament and last Will. And now at this Court came E. F. the eldest son of the said A. B. and doth bring here into the Court the Testament and last Will of the said A. B. bearing date c. before G. H. Deputy Commissary of I. A. in and through the whole Arch Deaconry of W. approved the tenor of which said Will as to the Copyhold lands doth follow in these words that is to say Item I give unto E. my Son c. as by the said Testament and last Will of the said A. B. more at large appeareth And he doth crave of the grace of the Lord to be admitted to