is made a County of it self whose Justice shall be the Justice of the County of Pembroke and the Judicial Seal of Pembrokeshire shall be also used there with divers other Priviledges for which see the Statute at large Howbeit this Article was but to continue in force during the King's pleasure CXXXIX This Act shall not be prejudicial to any mans Inheritance nor to any of the King's Officers for their Offices or Fees CXL No Land in Wales shall be Gavelkind but discendable according to the course of the Common Law CXLI All Liberties of the Dutchy of Lancaster shall continue as they were before the making of this Act. CXLII Stat. 18 El. 8 The Queen and her Heirs and Successors may at her and their pleasure name and appoint two or more Persons learned in the Law to the Justices in each of the Circuits in Wales which had but one Justice before or may grant Commissions of Association to such Person or Persons to be associate to the Justice or Justices of the said Circuits who shall have like authority and power as the one Justice had by the Statute of 34 35. H. 8.26 CXLIII Stat. 27. El. 9. All Fines and Recoveries taken or suffered in the Courts of Assizes or Sessions of the twelve Shires of Wales the Town and County of Haverford-west and the Counties Palatines of Chester Lancaster and Duresme and in every of them and all Writs Returns Warrants and other proceedings concerning the same now remaining or which hereafter shall remain in the said Courts or Sessions or in any of them or in the custody of any of the Officers there may upon the request and at the election of any person be inrolled in Rolls of Parchments by such persons and for such considerations as are hereafter expressed and such Inrolments shall be as good in force in Law for so much as shall be so inrolled as the same so remaining are or ought to be CXLIV No Fines Proclamations or Recoveries there shall be reversable by Writ of Error for false Latin rasure inter-lining mis-entring of any Warrant of Attorney or of any Proclamation mis-returning or not returning of the Sheriff or other want of form in words and not in matter of substance CXLV The person there that shall hereafter take the acknowledgement of any Fine or any Warrant of Attorney of any Tenant of Vouchee for suffering any Recovery or shall certifie them or any of them shall with the Certificate of the Concord or Warrant of Attorney certifie also the day and year wheren the same was acknowledged but shall not be inforced to certifie them except within the year next after they were taken And no Clerk or Officer there shall receive any Writ of Covenant Writ of Entry or other Writ whereupon any Fine or Recovery is to pass unless the day of acknowledgement thereof shall appear by such Certificate in pain of 40 s. CXLVI No Attornment upon any Fine there shall be entred upon Record except the party mentioned to attorn have first appeared in Court in person or by Attorney warranted by the hand of one of the Justices of the same Court upon any Writ of Quid juris clamat quem redditum reddit or per quae servitia as the cause requireth and every Attornment otherwise entred shall be void without Writ of Errour or other means to avoid it CLXVII There shall be in the said places an office of Inrolments crected to continue for ever for the inrolling of Fines and Recoveries as aforesaid and the Justices there shall within their several limits enjoy the said Office and the disposition thereof and carefully see to the execution of the same by the due examination of such enrolments and for their pains and care therein shall have certain Fees allowed them for which see the Statute at large CXLVIII Unto every Roll by any Justice so examined he is to subscribe his hand in pain of 40 s. and any of the said Justices may take order in all things needfull for the said Inrolment and upon examination may in the said Courts assess such Fines and Amerciaments or any Clerk Sheriff Attorney or other Person for misprision contempt or negligence in any thing concerning such Fines and Recoveries as to them or any one of them shall seem meet which Fines and Amerciaments shall be estreated as others use to be out of the said Court CXLIX The exemplification of any such Record of any Fine or Recovery thereof or any part thereof in the said twelve Shires of Wales and the Town of Haverford-west under the Judicial Seal or in the said Counties Palatine under the Seal of the respective County Palatine shall be of as good force as the original Record it self CL. The Justices Clerks may write out and enrol the said Records but shall not carry them out of their Offices CLI No Fine or Recovery heretofore levied or suffered shall after exemplification be amended THE TABLE TO THE RULES of LAW A. AFter Appearance and Declaration three Rules in Real Actions two Rules in Actions Personal mixt and popular and the last Peremptory Rule 4. After Pleas one Rule for Replication c. Rule 4. Amerciament where it shall be upon Non-suit and no Cost to the Defendant Rule 16. Appearance when to be allowed Rule 7. Administrator vide Executor Rule 12. D. Demurrer upon it one Rule to joyn upon refusal Judgement Rule 15. E. Essoin upon calling the Writ Rule 1. Essoin to be upon Iterum sum 2 d. and 3 d. Bill Distringas c. if none be upon original before Issue Rule 2. Essoin one after a Ven. fac Rule 3. Essoin to be cast for one day only Rule 6. Executor to make Oath that he c. received not the Debt nor any part thereof nor his Testator to his knowledge in his life-time c. Rule 12. I. Imparlance after it one Rule Rule 9. Issue general upon it the Solicitor to be for the Defendant without Rule but upon special pleading or a Solicitor for the Plaintiff one Rule Rule 14. Judgrment none to be given upon Bond for performance of Covenants upon Award or upon Agreements without motion Rule 11. Judgement by Default to be taken of the same Sessions unless the Defendant plead in Bar at the same Sessions without Rule Rule 13. N. Non-suit where Amerciaments upon it and no Costs Rule 16. Narratio similis upon Writ of View Sum. ad Warran ad Auxiliandum and upon Challenge one Rule Rule 8. P. Petit. visum auditum to be demanded between 2 d. and 3 d. Rule Rule 5. Petit. auditum in Personal Actions between the first and second Rule Rule 5. Plaint removed by Certior c. from inferiour Courts to the great Sessions the Defendant appearing and the Plaintiff Non-suited the Defendant not to have Costs Rule 16. S. Scire fac upon an old Judgement in Personal Actions two Rules to appear and after Appoarance two Rules to plead upon Real Actions three Rules to
Practica WALLIÆ OR THE PROCEEDINGS IN THE Great Sessions OF WALES Containing the Method and Practice of an ATTORNEY there from an ORIGINAL to the EXECUTION Whereunto is added The Old Statute of Wales at large And an Abridgement of all the Statutes uniting Wales to England with Tables of the Fees and the Matters therein contained By Rice Vaughan late of Grays-Inne Esquire LONDON Printed for Henry Twyford John Streater and Eliz. Flesher Assignes of Richard Atkins and Edward Atkins Esquires 1672 Cum Gratia Privilegio Regiae Majestatis Academiae Ganwbrigiensis Liber To the Honourable Sr. JOB CHARLETON Chief Justice of Chester ROBERT MILWARD Esq One of the Commissioners of the Privy Seal Sir THOMAS JONES Serjeant at Law KENRICK EATON Esq Honoured Sirs THIS Tract how little soever yet contains within its Circuit the Interest and Concerns of many worthy and Honourable Persons to whom the late Author was in hopes it would be no less acceptable then beneficial especially if admitted into your protections who for the greatest Reason understand the management of all Affairs therein discoursed You cannot but know the many alterations that happeneth in those Counties upon the uniting thereof unto the Crown of England for the better understanding of the then settlements there upon which the proceedings of these Courts are grounded there is now added the effects of all the Statutes yet remaining in force So that in this short view you see the basis and superstructure of the Law as it stands setled by Statutes and the usual and ordinary proceedings thereupon with the just Fees all reduced to our modern Scale which in the dead Author's behalf I offer to your Honours desiring to approve my self in all things Your Honours devoted Servant T. M. THE TABLE A. ACtion how to commence it in the great Sessions of Wales page 2. Actions real proceedings therein speedy p. 6 7. Attorney must take care to understand his Clyents business rightly p. 7 8. 36 37. 70 71. Alias dictus where necessary è contra p. 9. Account proceedings therein p. 26. Actions upon Penal Statutes how to be brought ibid. Audita Querela where it lyes and for what p. 28 29. Accedas ad Curiam where it lyes and the nature of it p. 29 30. B. Bill and Queritur how they differ p. 2 3. The return thereof speedy and the reason and effect of it p. 3 4. Bayl who appears upon Bayl must be discharged upon Bayl. p. 16. 35. C. Charges in a Suit in Wales where the Debt exceeds not 40 d. p. 6. Concessit solvere the nature thereof and Plea therein p. 13 14. Cape Petit when to be awarded and when the grand Cape p. 16 17. 51. Costs where it shall be paid p. 17. 22. 26. Curia claudenda the nature thereof proceedings therein p. 27. Certiorari the proceedings therein p. 32 33. Challenge where it lyes and why p. 38 39. 40 45. D. Defendant not prejudiced but by his own Laches and why p 5. Declaration when it must be b ought in and filed p. 11. Damages a Writ of Enquiry of Damages where it lyes p. 15 16. Distringas Alias Pluries and Plus Pluries Distringas where to be sued out ibid. Dower the proceedings therein p. 16. Where a Writ to assign it shall be granted p. 17. Detinue the nature of the Action and the proceedings therein p. 25. E. Execution how attainable p. 5 6. 60. ad 71. Essoyn without Warranty the ground of an Iterum Summoneas p. 9. Error Writs of Error where they lye and for what p. 29. Proceedings therein p. 30 31. Executions several sorts thereof p. 60. ad 70. F. Formedon the Tenant may vouch therein p. 19 20. False Judgement Writ of false Judgement where it lyes p 29. Proceedings therein p 31 32. Fees of the Prothonotary of North Wales in Causes real and mixed p. 83 84. Fees in Personal Actions p. 85 86 87. Other Fees rated and setled p. 93. ad 100 H. Homine Replegiando where it lyes p. 25. I. Judgements by default how obtained p 4 5. 9 10 11. Iterum Summoneas where grantable p. 9. Judicium si what it is ibid. Issues where to be returned p. 14 15. Imparlance where grantable which in Latin is called Li. Lo. p. 20. Special and general their difference p. 21. Jury their duty p. 49. ad 60. M. De Muliere abducta cum bonis viris the nature of it and proceedings therein p. 27. N. Non-suit where it shall be entred p. 17 22. Nihil inde when and where to be entred p. 21. Ne recipiatur where it may be entred p. 33. O. Original in what cases necessary p. 10 11. Oyer where it may be demanded p. 12. P. Plaintiff what he must do to obtain excution p 5 6 9 10. Pleas dilatory seldome admitted in the Courts of Wales p. 6. Pleadings usual in an Action of Debt p. 11 12. Pleas in other cases p. 12. Proceedings at the second Sessions when Issue is not joyned at the first p. 21. Partition the proceedings therein p. 25 26. Proceedings general in all causes p. 38. Q. Queritur the words thereof in divers cases p. 14. Quod ei deforceat the Writ and proceedings therein p. 16 17. R. Rule general and peremptory p. 11. Right Writ of right is conclusive and the Tenant may vouch therein p. 19 20. Replevin the nature of the Action and the proceedings therein p. 24 25. Returno habendo where and when to be granted p. 24 25. Rationabili parte bonorum the nature of it and proceedings therein p. 27 28. Recordare where and for what it lies p. 30. Rules setled for businesses at the great Sessions p 75 76 77 78. Rules in the Chancery there p. 79 80 81 82. Recovery common Fees therein p. 88 89 90. S. Sessions great Sessions in Wales the time of the summoning thereof p. 1 2. The proceedings therein p. 2. They have a Chancery in themselves p. 7. Summon◠and pledges to be returned p. 9. Summons only in some cases p. 11. Sequatur sub suo periculo a Writ where it is grantable p. 19. Summons ad sequendum simul cum where necessary p. 19 20. Summons and severance where necessary p. 20. Similis Narratio what it is p. 23. Statuta Walliae temp E. l. p. 101 ad 149. Statutes for uniting Wales to England p. 150 ad finem T. Titlixg of Actions truly very material to the Cause p. 8 9. V. Variance where pleadable and why p. 8. View of Lands where demandable p. 23. W. Wager of Law where admitted p. 11 12. Withernam the Writ where and why grantable p. 25. Waste the proceedings therein p. 26. Wales Statutes of Wales in the time of Ed. I. p. 101 ad 149. Wales united to England by several Statutes and the Abridgement thereof p. 150 ad finem The Manner of the Proceedings in the Courts of the Great Sessions in the Counties of Montgomery Denbigh and Flint within North-Wales as it now is ABOUT three
Weeks before every Great Sessions by Warrant from the Chief Justice of the Circuit a general Writ of Summons is sent forth by the Prothonotary to the Sheriff by which the Sheriff is Commanded to Proclaim throughout his County that the general Great Sessions for the County is to be holden at such a day and place And that he Summon and give Warning to all Justices of the Peace c. Officers and other Persons whom it doth concern that they appear at the day and place limited by the said Writ Which Proclamation being made on a Market-day all Persons whatsoever by the course there holden whether Plaintiffs or Defendants in Suits before depending or others who intend to Commence any Suits and also all such who suspect any Suits may be brought against them are at their perils according to the general Summons before mentioned to have their Attornies in Court to prosecute and defend the said Suits The Sessions being begun The Plaintiffs who are to Commence Actions do retain their Attornies and bring their Actions either by original Writ as is usual for all kind of Debts not finable upon the Original which Writs are made returnable the first day of the Sessions and dated fifteen days before the Sessions or else by Bill or Queritur which may be either for Debt Trespass or upon the Case And whether it be by Original or else by Bill or Queritur the Defendant upon the Original and first Bill or Queritur and all Process before appearance thereupon awarded is ever called in open Court to come forth and answer to the Plaintiff in such or such an Action as the Case is and if by Original the Defendant being thereupon called and not appearing then a second Writ of Summons is awarded returnable the next day after which being made by the Prothonotary and sealed with the Judicial Seal of the Court and returned by the Sheriff the Defendant is thereupon a second time called openly in Court And if then the Defendant appear not the Plaintiff hath Judgement by Default So it is also in case the Action be brought by Queritur or Bill saving only that Judgement is not in that case had before a third Writ of Summons issue and thereupon the Defendant being the third time called do make Default whereas if by Original there needs but one Writ of Summons besides the Original it self The first Bill or Queritur commonly bears date the first day of the great Sessions or the day when the Attorny sueth it forth and is returnable the next day after the date of it whereupon if the Defendant being openly called in Court appear not then a second Writ to Summon the Defendan-again is awarded whereupon if the Defendant being the second time called appear not then a third Bill or Queritur to Summon the Defendant is awarded whereupon if the Defendant being called a third time appear not then the Plaintiff hath Judgement by Default And these Writs are successively awarded and made returnable de die in diem and the Judgement had in three dayes at the most in cases of debt if the Defendant appear not but if the Defendant appear then the Plaintiffs Attorney declares and upon the Defendants pleading and not confessing the Action then issue is joyned the same Sessions and tryed the next Sessions after And it is here to be observed that the awarding of these Process and obtaining of these Judgements by Default depend upon the Sheriffs return of any â—â—e said Writs whether the Actions be brought by Original or by Bill or Queritur For if the Sheriff return a Summons as usually he doth in all cases of Debt because of the general Summons of the Sessions upon the Writ first before mentioned by which the Sessions was proclaimed then those Judgements are obtained as is before expressed But if the Sheriff return that the Defendant hath nothing in his Bailiffwick whereby he may be Summoned or Attached as usually he doth in cases of Trespass and upon the Case then a Capias to Arrest the Defendant is awarded and a Writ of Distringas also ad infinitum in cases of Trespass and issues thereupon returned by the Sheriff untill the Defendant do appear Neither is the Defendant in case of these Judgements thus obtained by Default any way prejudiced but by his own Laches or wilfulness For in all cases of Debt if he or his Attorney tender an Appearance any day within the Sessions or after with consent of the Plaintiffs Attorney before the Debt sworn the appearance is accepted And if he neglect so to do so that the Judgement stand yet no Execution can go forth untill the Plaintiff do first swear his Debt and Damages for the forbearance of it either before the Judges in open Court or else by special Commission in which Case also execution of the Writ by the Sheriff though gone forth is stayed in the Attornies hand by Order till commonly six Weeks or two Moneths after the Sessions to the end that the Defendant may satisfie the Debt before the delivery of the Writ to the Sheriff if he please In prosecution of all which kind of Actions in Debt and Trespass which are almost the whole business of the Sessions the parties are not delayed above one or two Sessions unless by some dilatory Pleas and Demurrers which seldom happen and for taking away whereof some provision may be made and the Charges unless in Cases where and issue is pleaded and tryal thereupon had not commonly above thirty shillings except where the Debt being above forty pound is finable to the King in case the Action be brought by Original Neither are the People in prosecuting and defending these Actions inforced to travel out of their own Counties Also in Cases of real Actions which are very few the proceeding is speedy unless it happen by multiplicity of Pleadings occasioned by the intricacy of Titles and variety of Conveyances to be pleaded which for the most part is avoided the Conveyances being given in Evidence Those Courts of the great Sessions have a Chancery within themselves and have had power to relieve in Cases of Equity ever since H. 8 time A Tract or Directory touching the Practick of an Attornies profession in the Court of the great Sessions in Wales IN the first place it concerns an Attorney partly as well as the Lawyer to understand at least the nature if not the whole cause and ground of his Clients Action or Suit before he undertakes to follow it without which he will not be able to do his Client any great benefit more then suing out of Process and going from Office to Office which every ordinary fellow that can but write and read is able to do as well as he Then to ease his Councel Common Actions at the Sessions and not to trouble him to do every ordinary plain thing he is to draw his Titling for to have out his original Writ or Queritur as the case requires and the
relation to his practice yet I durst not presume to proceed to enlarge thereon lest I should be justly rebuked In some Cases there will be no Plea put in or Issue joyned the first Sessions but the Defendant upon some occasions must move for an Imparlance which is called Licentia interloquendi for brevity Li. Lo. being a granting of time to imparle between that and the next Sessions or to plead by the first day of the next Sessions or some day in the Vacation as the Court shall think fit to appoint or both parties agree to be entred tunc pro nunc for there is a general and special Imparlance and sometimes the Plaintiff will have cause to imparle as well as the Defendant when after the Defendant hath answered or pleaded he is not ready to reply for in all or most Actions begun at a Sessions there must be Recovery by Default or after appearance and Declaration either an Issue Imparlance or a Nihil dicit if the Plaintiff do as he may call for proceedings without both parties will be at a stay by consent wherein commonly a Nihil inde is for that time entred on the Writ or Declaration in which Cause the Plaintiff if he please may proceed the next Sessions after as formerly he might And in such Actions wherein Issue the first Sessions is not joyned if the Plaintiff will proceed the next Sessions he must then look the Docket to know how the matter stood the Sessions before and continue the same unto the Book of Imparlance according to the words of the Docket which may also be done the second Sessions but paying the Prothonotory for the continuance If Causes have slept after appearance and before Declaration be put in and the Plaintiff will not appear to proceed the Defendant if he desires to go on must move the Court to appoint the Plaintiff a time to declare or reply c. as the Case requires and in default thereof that a non-Suit may be entred which the Court of course will grant and the same Rule being entred and not performed then the non-Suit will be entred and if it be after the Plaintiff hath declared the Defendant will have his Costs and an Execution for it if it be not in such Actions wherein Costs do not lye for seldome or never any Costs is had by the Defendant if the Plaintiff become non-Suit before he declares for I knew never any had or granted I should towards the end of the foregoing leaf where I mentioned view lay not in a Writ of Entry Sur Disseizin declared that it did lie in the other Writs as of Dower Writ of Right and Formedon wherein after Declaration is put in and a Rule given to the Tenant to Answer the Tenant may demand view of the Lands which must be done in Court or Office before the Rule be quite out which view so demanded is granted which excuseth the Tenant of making any Answer till the Demandant sues out the Writ of View whereunto as well the Tenant must appear as the Demandant declare de novo by a Similis Narratio and the Tenant must be careful to observe his time to demand the view for it is not grantable after a general imparlance and if the Tenant slips the time he shall not come to it again and he must be more careful to appear or essoin for an essoin will lie at the calling of the Writ of View else the Demandant will then recover seizin of the Lands and have a Writ of seizin and if the Defendant essoins he will gain a day longer to appear and then must appear whereupon the Demandant declares by Similis Narratio mutat mutandis as is aforesaid There are at the great Sessions sometimes other Actions as of Replevin Detinue Accompt Rationabili parte bonorum Partition Waste Actions upon Penal Statutes Curia Claudenda de muliere abducta cum bonis viri Audita Querela and others which have but ordinary proceedings as hath been treated in some other Actions before spoken of whereupon I will only speak a word or two of the nature of each of them Replevins most commonly are brought in inferiour Courts and afterwards removed to the Sessions wherein the Plaintiff declares and the Defendant avows as his Case requires and afterwards the Plaintiff is to put in his bar which is called a Replication in another Action And in this Action both Parties are Plaintiffs and may recover for the Defendant if he makes good his Avowry is to recover his Rent or what else he distrained for with his Costs and Damages at the Trial but if the Plaintiff be non-suited the Defendant is to have a Returno habendo to restore the Cattle distrained by him to his custody as they were before replevied whereby to satisfie his demands But then the Plaintiff if he will may have a second Deliverance and go on again to Trial but if the Defendant recovers in this he is to have a Returno habendo unrepleviable but if the Plaintiff recovers he is to have only Damages for the wrongful distraining of his Beasts and in case the Goods cannot be replevied a Withernam may be had to take the Parties own Goods that did distrain in value c. there is also a homine repligiando for releasing a man detained by another person except for some offences which are mentioned in the Writs and there is sometimes a Capias in Withernam that issues out it is too tedious to express all things concerning them and therefore I leave the Reader if he be ignorant to take pains to learn them out of better Authors as I did In detinue the Plaintiff is to recover the things detained and in default thereof the value of the same in money which the Jury usually finds The same Process is in Partition and in Waste and Accompt which is Summons and Distress but in Partition and Waste the Demandant will recover by default upon the third Writ if the Tenant appears not as in some other former Actions treated of appears And in these two Actions of Partition and Waste there lies no Costs but treble Damages and the place Wasted is recovered in a Writ of Waste And in Partition there be two Judgements one after the Verdict which is no more then siat inter eos partitio and the other upon Return of the Writ awarded to the Sheriff to make the Partition which must be upon motion and is quod partitio praedicta firma stabilis teneatur imperpetuum And in a Writ of Waste the Demandant may depending the Action move for a Writ of Estrepement and is ordinarily granted being a Writ to the Sheriff to restrain and prevent the making or committing any further waste upon the Land Whilt the Action is depending Actions upon penal Statutes are usually brought by way of Information wherein a Distringas is the next Process and the Issue Verdict and Judgement therein if found by the Prosecutor are as the several
Statutes do direct or else a not guilty The Action of Curia Claudenda and do muliere abducta cum bonis viri are in some respects especially that of de muliere abducta c. in the nature of an Action of Trespass the Curia Claudenda being an Action brought by one against another for not securing or enclosing the Fence or Hedge lying between both their Grounds and time out of mind as urged by the Plaintiff usually made up and fenced by the Defendant and all other Owners of his Lands the other de muliere abducta c. is for taking away the Plaintiffs Wife with some part of the Plaintiffs Goods without alledging of which Goods and that also in particular the Action will not be well laid In all my time of Practice I saw but one Action of each of these that is one of Curia Claudenda in Flint-shire about 30. years ago and one de muliere abducta c. in Denbigh-shire 24. years ago wherein 200. l. Damages were recovered The Rationabili parte bonorum is when a Widow upon the custome of North-Wales sues the Executor of her Husband for the moyety of her Husbands personal Estate or when a Brother or Sister upon the same custome sues for a share as may more at large appear in Law Books in which Action all is recovered in Damages being what the Plaintiffs Witnesses can make appear the Moiety to the Wife or the share of the Brother or Sister to be really worth through all the personal Estate Audita Querela lyes when one is apprehended and imprisoned for Debt and Damages recovered against him and against another person who was principally Bayl or Surety with him for the same Debt and when that other person had formerly been apprehended for the self same Debt and Damages and hath satisfied the same for it will not lye without real payment or satisfaction was made by the other person that was formerly taken in Execution though he never lay so long in Goal and came out some way or other without satisfying the party Plaintiff or it will lye for one as became Bayl or entred into Recognizance though the Debt or Recognizance be not really paid and satisfied but the Audita Querela â—n that Case must be brought before the parties attain to the full years if the Audita Querela be made good but a discharge out of the Goal and from the Recovery Recognizance or Execution there are original Writs at the Sessions not spoken of before videlic t a Writ of of Error a Writ of false Judgement a Certiorari or Recordari The Writs of Error is to move the Record of any Recovery had in any inferiour Court which is a real Court and so a Court of Record into the great Sessions so that the Errors therein if any be may be there heard and examined A Writ of false Judgement or sometimes called Accedâ—s ad Curiam is to remove the Record of any Recovery in a mean or base Court which is a Court that hath not power to hold Pleas but under forty shillings to the Sessions A Certiorari for removing any Action depending before it be tryed by Jury in any real Court or Court of Record which hath power to hold Plea above forty shillings which are Courts held by Charter in Corporations or Lordships and in some Lordships Marchers by prescription unto the Cost of the great Sessions there to be proceeded upon and go to Issue and Trial if the Plaintiff when it is removed will prosecute and follow it A Recordaâ—e is to remove any Action begun and not tried in the said base Court under 40 s. to be proceeded on as is aforesaid touching the Certior at the Sessions Now for proceedings in the said Writs of Errours false Judgement Certiorari and Recordari thus much which followeth The Writ of Error after it is granted must be delivered to the Steward or Judge of the Court where the recovery was had and he must certifie the Record to the next Sessions or an Attachment lies against him And when it is there entred he that put in the Record must assign Errours by his Councel and sue forth a Scire facias ad audiendum Errours directed to the Sheriff at the return whereof if a Scire fcci be returned the Defendant in the Writ of Error must appear and plead to the Assignment of Errours which is In nullo est erraetum in Common Pleas and if he doth not appear and plead the Court may proceed by default to hear or rather to examine the Errors and in both cases there must be a day appointed for reading the Record and then after part thereof is read the Errors are opened by Councel and if the Cause be argued on both sides thereupon the Court will either reverse or affirm the Judgement and if Judgement be reversed the Plaintiff in the Writ of Error shall have his Costs but there are no Costs upon reversal of a false Judgement as shall be said hereafter And if Judgement be affirmed the Party shall have Execution as well upon his former Judgement as for what Costs and Damages shall be awarded by the Court to him for that delay A Writ of false Judgement is directed as well for Judgement given in other mean Courts as in his own County Court for such as are Judges in those Courts have not the return of Writs but in this Writ there is a far shorter proceeding when the Record is put in then in the Writ of Error for here needs nothing after it is put in but Councel to move to have it read which being done Judgement is either reversed or affirmed If reversed the Defendant in the Court below who is the Plaintiff in the Writ of false Judgement is to have a Writ to be only restored to what he hath lost that is to what he hath paid upon the former Judgement if any to have no Costs but the bare sum he was driven to pay upon the former recovery in the Court below If affirmed as seldom or never it is then the Plaintiff in the inferiour Court is to have Execution out of the Sessions for what he formerly recovered without Costs A Certiorari is to remove an Action above 40 s. as is aforesaid out of a real Court or Court of Record before any Judgement or Trial be had therein in that Court. And in that and in the Recordari such as sue them forth are to deliver them into the Sessions by their Attornies having first called them from such as are to return them to wit the Steward or Judge of the Court of Record for the Certiorari as in the Writ of Error before and to call to the Sheriff for the return of the Recordari to whom the same as before is said 〈◊〉 false Judgement is directed and are to be proceeded upon as in all other Actions of the nature they be from the beginning only that Writ serves for an Original or a Q 〈◊〉
thereby he may perhaps prevent a greater charge and a longer delay the Challenge hath but an ordinary form therefore I omit it and though the Pedegree be a little mistaken I never found it much material for it would come to the same viz. that the Plaintiff may have his Process either to the Sheriff Coronors or Elizors and avoid all inconveniences that falls out by omitting it But in these Challenges there must be observed what the form of Law requires as if it be for Kindred to the Sheriffs Wives then to mention that she is living if the case be so if she be dead to mention her death and that the Sheriff hath Children alive by her if he hath and many such things that if the Wife be dead and no Children living by her there needs no Challenge And if Process is to go to Elizors the Court must be moved to nominate them and then swear them but if otherwise then you are to take out your Process of first Jury-writ to the Sheriff or Coronors or one of them as the Defendant admits it and he shall have no benefit of any Challenging to quash the array though there were Kindred but if you omit this course as is said and take Process to the Sheriff when he is of kin then the Defendant may when you have retained and instructed your Councel and been at charge with your Witnesses and so be ready for Trial put you off that Sessions by challenging and quashing the Array upon that Kindred or Alliance suggested by that Challenge made to quash the Array which Challenge to quash the Array must be moved and put into Court by the Councel of the Defendant after the calling and appearing of the Jury and before they be sworn And that challenging may be two-fold the one as principal as for Kindred and Alliance between the Plaintiff or his Wife and the Party who returned the Jury the other for favour as where the Sheriff or his Officers returned the Jury by nomination of the Party or where the Lessor in an ejectione firme is of kin for as I should have said before if there be no Kindred at all between the Lessee who is the Plaintiff in the Action and the Sheriff and if you find there is Kindred between his Lessor and the Sheriff it behoves you before you take out your Jury-Writ to put in as before is shewed a Challenge to the Sheriff for Kindred to the Lessor or where there is Kindred between the Plaintiff or his Lessor and such as returned the Jury by bastardy that as I heard is no principal Challenge but a Challenge to the favour And so if that Challenge to the Array be made good upon good Oath punctually the Array as aforesaid will be quashed and the Plaintiff be put to begin de nove with Jury-Writs which cannot be brought about that same Sessions for the Defendant may cast an essoin to the Venire facias the first Jury-Writ but to all such Challenges to the Array the Plaintiff is called to speak to it and he must either confess it or deny it And so both Parties joyn issue upon it if confessed then the Array is quashed if denied then Triers are sworn to try whether the Kindred be as is said which Triers will be two or three of the Jury that had appeared And if they find the Kindred the Array is quashed if not the Array will be affirmed and the Plaintiff shall go on with his Trial and the Jury that were called and appeared will be sworn to try the cause but if the Array be quashed as for Kindred to the Sheriff the Plaintiff must take a Venire facias to the Coronors though the next Sheriff be no way kin or allied to him And if the Jury writ whereon the Array was quashed was returned by the Coronors the Plaintiff must begin and take his Venire facias to Elizors though there were new Coronors sworn that were neither kin nor allied to the Plaintiff because the Plaintiff taking out his Jury-Process de novo cannot go backward but must still go forward If the 24. Men returned on the Venire facias are returned by a Sheriff that hath no relation to the Plaintiff and a succeeding Sheriff that will be of kin to the Plaintiff returns the decem tales on the habeas Corpora in that case the Defendant if cause be to Challenge the Array is to say nothing to such as appears on the principal Pannel till those appear who were returned on the docem tales by the last Sheriff and not before a Challenge may be put to the rest of the Array from that place forward ut supra when Triors are named by the Court as is aforesaid to try whether the Array returned stand indifferent by reason of the Kindred proved between the Plaintiff and such as returned it the Plaintiff or Defendant may twice challenge or accept against those Triors without shewing any cause for it but the third Challenge is peremptory which must be allowed at the Partiesown peril when the Plaintiff hath made put in his Challenge as is aforesaid or is assured that he needs not he is to take out his Venire facias and return it or file it in Court which the Defendant may if he please Essoin and thereby gain a day longer to prepare himself but the Essoin must be cast at the Challenge of the Writ or else too late when the Essoin is not allowed or not Essoined at all then a Habeas Corpora with a Decem tales is to be taken out and so if cause requires a Distringas Juratorum with an Octo tales Upon Challenge the Habeas Corpora or Distringas Jurat the whole Jury therein returned will be called and after they are all called if twelve appear they will be sworn but before they be sworn any of the Parties may challenge any one of them or all if there be cause by the Poll if any Party dislikes any of the Jury by reason of Kindred or favour to the other Parties Attorney must say when that Jurors come to the Book to be Sworn I challenge him for the Plaintiff or for the Defendant which will in the margine of the Pannels be entred And then he that is challenged is not sworn till twelve be found out if so many indifferent men appear upon the Pannel or till all the names in the Pannel be called And if full twelve be not found to appear upon the Pannel and after the Pannel is perused and gone through then the Party which challenged any is called to shew his cause of Challenge against such and such and then must his Councel or Attorney manifest the Cause which is most commonly for Kindred or Alliance to the other Party or that the Jury challenged is Tenant Servant or within the Plaintiffs destress if the Challenge be put in by the Defendant and so e contrario if the Challenge be put in by the Plaintiff if you name at
first but one of those Causes of Challenge and the Juror upon Oath deny it you are not allowed to go back and name the rest of the Causes of Challenge And therefore for fear of the worst all those Causes are usually named at first for the Juror challenged is to be examined upon the Voyer dier to all those exceptions and if he doth confess or acknowledge any of them he is put by and excused if not he is sworn to try the Cause and very often when the Party challenging will not allow the bare denial oâ— the challenged but will produce proof to make good the Causes or one of them for which challenged whereupon two of them that will be already Sworn to Try the Cause will be again Sworn to try whether the Party challenged is an indifferent man as he stands unsworn to be of that Jury or no if they find or say he is or stands indifferent he is presently Sworn to Try the Cause and if they say he is not he is put by as is said before And if a Challenge be made by Plaintiff or Defendant to any of the Jury for corruption or any other miscarriage in him as may be then you must prove it by Witnesses for the Juror will not be compelled to his Oath in this as in other cases to accuse himself in such case and as good not challenge any or rather better upon that score if it cannot be palpably proved for if not proved he will be Sworn to Try the Cause and perhaps when he is amongst his Fellows debating the Cause think of the ignominy which was spoken and offered him and could not be proved and then do the Party as challenged him a discourtesie if not a mischief If there do not appear full twelve upon calling of the Pannel after they are twice called then the Plaintiff is told by the Clerk as called the Jury that there is not a full Enquest and asked what he prays and then Councel prays a tales but it is in the Plaintiffs choice to pray a tales de Circumstantibus or a tales at Common Law which is had upon further Process But if he prays a tales de Circumstantibus as most usually it is then the Sheriff Coronors or Elizors or some of them that made retorn of that Pannel is presently to retorn as many of the standers by as will make up a full Jury but if you pray a tales at Common Law you may take out your further Process at that or the next Sessions if you sue out a Venire facias one Sessions and do no more then you are to take out the Habeas corpora the next Sessions and continue the Cause if the Cause be stayed upon Habeas corpora to continue the Cause the next Sessions after and sue forth a Distringas Juratores if after Issue joyned the Plaintiff will not proceed in the Cause then the Defendant upon any default made by the Plaintiff may go on if he please by moving the Court that he may proceed with a Proviso which of course the Court grants and the same Rule being entred the Defendant shall proceed and take the matter in the same place where the Plaintiff left to wit if the Plaintiff left it after Issue joyned before any Writs taken out the Defendant is to take out a Venire fac with Proviso which is no more then to prohibit the Sheriff to retorn one Writ of the same nature in case two came to him one from the Plaintiff and one from the Defendant so that the Sheriff is to retorn only the first that comes to him and if the Venire facias be taken out by the Plaintiff the Defendant upon the Plaintiffs default may take out the Habeas corpora with a Proviso and so forward in all Processes with a Proviso and the Court shall proceed thereon to Trial or non-Suit let the Plaintiff appear or not appear but if the Plaintiff please he may appear and give Evidence as well upon that Writ of the Defendant as if it had been sued out by the Plaintiff and challenge the Jury or the Array Co. lib. Intr. 340. As for kindred between the Defendant and the Sheriff but if the Plaintiff appears not as soon as the Jury are sworn the Plaintiff will be called and upon his non-appearance non-suited When a Jury is called and after full appearance of twelve and are ready to be sworn the Defendant before any be sworn will be called to appear and will be told in all personal Actions that if he doth not appear the Jury will be taken in his default whereupon the Defendant either appears by his Attorney or not appears if he does not appear the Plaintiffs Councel prays that the Defendants default may be entred and the Jury taken by default which is accordingly done and though the Defendant makes default and appears not by his Attorney yet if he please his Councel will be admitted to speak for him and manage his Evidence if there be any as far forth as Councel can in the Defendants defence but an Attorney will not be admitted to speak or act any thing for him but in a real Action when the Tenant is called ut supra he is told that if he appears not a Pettite Cap. will be awarded against him and upon his non-appearance or default the Demandants Councel will move that the default may be entred and the Pettite Cap. awarded which the Court grants and the Trial stayed and the Pettite Cap. issued out and when it is retorned and called which will be ordinarily the next day after the default the Demandant shall have Judgement and recover seizin of the Lands unless there be a receit in the Case but before I speak thereof I will end with the manner of Trials for at some Trials after the Jury are sworn and after some Evidence given or before any Evidence given the Cause is by both parties consents referred or stayed wherein in such a Case to prevent a Verdict or a non Suit of either sides a Juror is withdrawn which will be the first second third or last or any other that were sworn of them that appeared on the Pannel as the Court shall direct and then is strucken out of the Pannel and the Jury discharged and paid equal by both parties Plaintiff and Defendant the withdrawing of a Juror must alwayes be with the consent of both parties and cannot be by an Act of the Court without consent of the Plaintiff and Defendant and where a Juror is withdrawn if the Cause be not comprized and ended by the next Sessions following the Plaintiff may go on if he please and if he will not the Defendant may go on with a Proviso as is before said and if it stood upon the Habeas corpora there will issue out a Distringas Jurat wherein all that were named upon the former Pannel will be named in the Distringas saving him who was withdrawn and stricken out of
Determination of the Court which sometimes after Argument is given and entred for Plaintiff or Defendant as is before spoken where a special Verdict is given and therefore I will not enlarge further thereon having stood somewhat longer on manner of arguing and determination of a special Verdict then altogether concerned my purpose being to direct an Attorney how far he was to act in that and in this It is the Councels part to manage all things Again when a Jury after they heard their Evidence and deliberate thereon comes to deliver their Verdict if the Plaintiff when he is then called becomes non-suit it is requisite that the Defendants Attorney have care which I omitted to speak of when I formerly spake of a non-suit where it had been more proper that is to say a special Entry made of that non-suit that it was after Evidence whereby the Record may be as several Presidents are for it drawn up accordingly for there is a very great difference and strong one when occasion is to be urged between a common ordinary Non-suit before Evidence and a Non-suit after full Evidence on both sides given for it is near as good as a Verdict for the Defendant And in so doing the Attorney may perhaps benefit his Client far more then what he had formerly done for him in this Cause if the Plaintiff should afterwards stir therein and bring his Cause about again to another Trial. After Recovery or non-Suit there may be several Writs of Execution had by the party that recovers though but one at a time for to attain the fruits of his Recovery which Writs in Debt and all other personal actions are either a Capias ad satisfaciend a Ficri facias or an Elegit the one being to take the body the other to seize on the party goods and chattels the third to find the moiety of his Lands that he had at the time of the Judgement given and all his Cattel except the Cattel of his Plow If an Elegit be taken out the party can resort to no other Writ â—till the time expires that he must sue forth a Sci. fac for to renew his Judgement if a Capias be taken out he cannot resort to a Sci. fac but after a Fi. fac there may be a Cap. had upon retorn of Nihil habet in Balliva mea c. After an enquiry is made upon an Elegit and Lands found the party that sued it out if he conceives that what is done upon it it may satisfie his Recovery is to retorn it and have it filed in the Prothonotary Office or else keep it with him and accept a time to take out another Elegit or another Writ if it be to be obtained for if he files his Elegit he is thereby concluded and barred from having any further Execution though by that which he filed he could never attain to the third part of his Recovery If a Sheriff upon a Capias retorns Non est inventus the party may have an alias if he please or an Exigent which is to the Sheriff to proclaim the Defendant at the fourth or next County Court and at the fourth County he is to be outlawed by the Coronors Judgement and when the Exigent is retorned then will issue out a Capias ut legatuâ— which is either general or special the general is to take the body only and the special is as well to take the body as to find or to seize on the party his Lands and Goods to the Kings use till the party clears himself of the Outlary But I never understood in all the time of my experience and upon all my enquiry how or in what manner legally a man upon an Outlary had out of the Sessions and Lands found thereon may come to reap the benefit thereof by satisfying his Recovery though it is ordinarily done in England for no Inquisition upon an Outlary was ever retorned to our Welch Exchequer which is an Office belonging to the Sessions for making of Original Writs there and how it may be transmitted or Cognizance taken of them at the Exchequer above forth I leave them to signifie that have reason to be more knowing then my self therein for there was no such proceedings in all my time and never before for ought I heard There are also in Actions of Dower and on other real Actions a Habere facias seisinam as an Execution to be taken out to obtain possession of the Lands recovered and in it sometimes a Writ to enquire of Damage as in Dower which is recovered by default or where it appeared not what the Damages were and a Capias or Fieri fac for the Costs wherein Costs lyes which Writ when executed is to be retorned and filed and in Ejectione firmae an Habere facias possessionem is the Execution for to put into possession with a Cap. or Fieri fac as is aforesaid included or by it self for the Costs and Damages which likewise are to be retorned and filed after they are executed If Execution be not taken out till a year be expired since the last Execution upon any Judgement was sued forth then the Plaintiff should have no Execution though Prothonotories use to do it by continuing the Cause before he takes out a Scire fac to the Sheriff to sum non the party Defendant to shew cause wherefore the Plaintiff should not have Execution and if the Sheriff retorns thereupon a Scire feci as there is a Rule given by the Court to shew cause c. but in some Courts there be two or in some three Rules to appear and the like to plead which in Summe seems to be too favourable to the Defendant and in great delay to the Plaintiff which may tend to his prejudice but in default of appearing and pleading something to it Judgement is entred which is Quod fiat Executio and then Execution awarded the Defendant may plead thereunto what the Law admits and as his Case stands Nul tiel record and several other things But some hold that that Plea holds not in the same Court where the Judgement was obtained others I found of opinion it would but when it is admitted as soon as the Record of the Judgement is produced and read there is an end of it and Execution is presently awarded if the Sheriff retorn upon the Fieri facias Nihil habet per quod c. the party Plaintiff must take out another Scire fac and if the Sheriff retorns the same Retorn on that then those two Nichils amount to a Scire feci and the party shall have Execution as if a Scire feci had been at first retorned in case the Defendant appears not or afterwards plead not There be several Causes wherein a Scire fac is requisite after Judgement before Execution be made or taken out as if the Plaintiff or Defendant died after Judgement there must be a Scire fac for the Plaintiffs Executor or Administrator of the Defendant if the
Defendant die or against the Son and Heir of the Defendant or against the ter-Tenant of the Lands which the Defendant held at the time of the Judgement And also when a single Woman marries after she recovers she must have a Scire fac in her and her Husbands name or where there are two Plaintiffs and one died after Judgement and before satisfaction there the Survivor must have a Scire fac and it is very fit a Scire fac be where two are such joyntly and one of them died after Judgement and before satisfaction that a Scire fac be had against thâ— Survivor Defendant that the future Execution be only against the surviving person for otherwise it muâ—â— be issued out against him that is dead as well as against him that is living for otherwise no Record will warrant the issuing of any Execution foâ— or against them who before that Scire facias were therein never mentioned in all which Scire facias theâ—â— must be a mention or suggestion 〈◊〉 the Cause thereof In a Scire facias against one Executor or Administrator for a Debt recovered against the Testator or Inteâ—state he may plead as he might to as Action commenced for the same thing against him Ne unques Exec. c. oâ— Administratio nunquam Commissa fuit but his safest course will be Plene administravit but if there were anâ— Judgement against the Testator 〈◊〉 Intestator that must be pleaded iâ— special or otherwise he shall have 〈◊〉 benefit thereof when he comes 〈◊〉 discharge the Assets that shall be charged upon him upon his general Plene Administravit The Scire facias against the Heir is where any Heir hath any Lands fallen upon him from Father or Kinsman without any conveyance formerly made to him thereof or against the ter-Tenant is where any one doth occupie and hath purchased Lands that were the Lands of him against whom any Recovery was had at the time of the Judgement given for all such Lands are lyable to the Judgement and in these Cases the Defendants in the Scire fac are to appear and defend themselves if they can the ter-Tenant by pleading some Conveyance made of the Lands before Judgement or something else as his Case requires and the Heir defendeth himself most commonly by pleading Riens per discent which is sometimes generally and some other times specially pleaded now to plead it specially is to say he hath nothing by discent praeter c. to wit save ten acres of Lands or such a quantity in such and such Townships for if the Heir be sure the Plaintiff cannot fasten that he hath any Lands by discent he may safely plead the general Riens per discent but if he hath not from his Father or Ancestors some thousand acres and but one acre or two by discent and all the rest being a thousand or two thousand are not so he must except the two acres in his Plea without which the Plaintiff upon the general Issue pleaded if he prove the Defendant hath one or two acres by discent shall have a Writ not only to extend that but all the rest of the Land that he holds as were the late Lands of him against whom the Judgement was though he held them by conveyance and came not by discent whereof he must be seized in Fee-simple at the time of the Writ brought against him or else he is not lyable and upon Judgement had against Heir and ter-Tenants the Plaintiff is to have Execution to extend the whole Lands thereto lyable till the whole money recovered be thence levied If Judgement in any Action or on a Scire fac against an Executor or Administrator the first Execution is a â—ieri facias de bonis testatoris for the â—rincipal Debt and bonis propriis for â—he Damage thereon if the Sheriff â—o return that the Executor or Administrator hath no Goods unadâ—inistred then the Plaintiff is without remedy against the Party but is â—y an Action upon the Case to take is remedy against the Sheriff for â—â—e return is not held sufficient or â—ny good return in Law but if the â—heriff returns a Devastavit c. then Fieri facias de bonis propriis goes out â—o leavy the whole as well the Debt â—â—s the Damage out of the Executor or Administrators own Goods which return also proves sometimes very dangerous to the Sheriff for â—n returning of a Devastavit against â—ome Executor or other wherein â—evera it lies not that Executor may â—â—ring his Action against the Sheriff â—nd recover very great Damage against him therefore the Sheriff is â—n a strict case and he should do nothing rashly but all things warily â—nd advisedly and so he cannot do amiss And upon that Fieri facias bonis propriis if the Sheriff return nibâ—habet c. then the Party Plaintiâ—â— shall have a Capias ad satisfaciend against the body of the Executor oâ— Administrator There are many other things which are requisite for an Attorneys knowledge as the knowledge in the solicitation of quashing or traversing of Indictments or Presentments aâ—â— in levying of Fines and suffering common Recoveries for better assuring of Lands and some other things which would prove too tedious to insist upon for I confess have been in some things before oveâ— tedious already therefore I shaâ—â— leave them to learn and to seek oâ—â— by their own industry the knowledge of them if they conceive the pleasure in them or the gain gottâ—â— thereby will countervail their painâ— And indeed I rather omit to speak any thing touching the quashing and traversing of Indictments for it matters not much what such Person 〈◊〉 gives occasion to be presented oâ— indicted may suffer for defect oâ— knowledge that way in his Attorney for Councel if well paid as such Person to avoid their conviction and consequently their penalties and punishments will or at least should do will sufficiently direct them And for the knowledge in suffering of common Recoveries and levying of Fines it belongs altogether to Councel to be managed and directed without an Attorney be in something able to ease the Councel as by Drawing Titlings and Concords which an Attorney who that way obtained good experience may do otherwise I hold him not fit to meddle therein or to be instructed least trusting to his Instructions without further knowledge he may spoil his Clyents Conveyances and thereby do him therein more harm perhaps then by his negligence or ignorance in dealing for his Clyent in several petty Causes It is very behoovefull for an Attorney to know at least the forms if not the nature of all Writs and the Retorns of them especially of such Originals second Writs Jury Writs and Writs of Execution as be most used and expedient for his practice And to know well the Fees of the Prothonotory and the rest of the Officers of the Court for without some knowledge in these Writs and Retorns his Clyents Cause may be delayed and perhaps sometimes overmuch
prejudiced because all Clerks of an Office or Under-Sheriff are not so perfect and knowing but some may commit a fault now and then and those that are knowing may be subject by reason of negligence or over-hastiness to write false And if any Attorney if he suspect any such thing cannot apprehend it his Clyents as aforesaid may suffer by it if the Attorney of the other side be more knowing and apprehensive And if any Attorney knows not perfectly all Fees he cannot choose but in making of Bills of Costs for his Clyent after Sessions or when he takes out Execution for them prejudice and wrong himself or his Clyent Neither is it handsome for an Attorney when he is paying some Fees to an Officer to be enquiring of him or of another what the Fees are lest he gives occasion to some standers by to suspect his ignorance in other things as well as in those Fees All which ordinary Writs and their Retorns I would have done here but far better then I could do are to be had and read in several printed Books wherein if Attorneys please they may be fully instructed and their Fees they may soon attain to know in a short time if they be but diligent in observing and willingly learning and also carefull to remember what they observe and learn that I need not here give any Catalogue of them for an Attorney though he were bred up an Apprentice his time under an able Attorney which I conceive is a very good way to bring him up and make him able and if he had never so good instruction from him in writing and by long experience will never for all this I think prove throughly perfect and able in his profession no more then I also think any of another profession will do without he be as earnest and desirous to learn and know the same as much or more for the delight and pleasure he shall take and receive in the knowledge thereof as in the profits and gain he expects to attain by it but the over-hastiness and forwardness to come too soon by that gain hath made many one a bungler not only in that but in several other professions which Error were well to be by others hereafter shunned and avoided Ad magnam Sessionem Domini Regis Com. Caernarvon tent apud Conwey in Com. predict coram Petro Mutton Ar. Justiciar Domini Regis magn Sessionis suae Com. pred Edvardo Littleton Ar. uno alter Justiciar c. die Lunae viz. decimo quinto die Septemb. Anno Regni Dom. Caroli Dei gratia Angliae Scotiae Franciae Hiberniae Regis fidei Defensor c. quarto Certain Rules agreed upon at the said Sessions for the setling of business in the Court of the said Sessions within the three Shires of North-Wales 1. Imprimis Every Essoin to be east upon the calling of the Writ or else not to be allowed 2. Item An Essoin is to be allowed upon the Iterum Summoneas second or third Bill Distringas c. if there be no Essoin cast before upon the Original and that before Issue but after Issue one Essoin upon the Venire fac only 3. Item No Essoin to be allowed upon a Scire fac brought upon a former Judgement 4. Item After Appearance and Declaration three Rules in every real Action and two in every personal mixt or popular and the last peremptory after a Plea one Rule for Replication Rejoynder Surrejoynder Rebutter Surrebutter 5. Item The Petit visum or auditum in real Actions to be demanded between the second and third Rule and the Petit auditum in personal Actions between the first and second Rule 6. Item An Essoin to cast one day only viz. the next day after Essoin cast as if a Writ be essoined upon a Munday to put off Tuesday so that no Writ can be called untill Wednesday morning and the party to wave or warrant the Essoin the day essoined sitting the Court. 7. Item If there be no appearance upon the day of the Retorn nor upon the calling of any Writ sitting the Court or upon that day the appearance not to be allowed but upon the next Writ or Process 8. Item Upon a similis Narratio upon a Writ of View Sum. ad Warran ad auxiliand and upon a Challenge one Rule only and that peremptory 9. Item After Imparlance one Rule 10. Item Upon every Sc. fac upon an old Judgement in personal Actions two Rules to appear and after appearance two Rules to plead and that peremptory but upon real Actions three Rules to appear and three to plead but upon a Judgement of ten years past no Sc. fac is to be granted without motion in Court unless it be continued by Process 11. Item No Judgement to be given upon a Bond for performance of Covenants Award or Agreements upon default without motion in Court 12. Item An Executor or Administrator to make Oath that he received no part of the Debt nor any other for him since the death of the Testator nor the Testator himself to his knowledge 13. Item No Judgement entred by default or taken of the same Sessions unless the Defendant plead in Bar the same Sessions 14. Item Upon the general Issue tendred the Similiter to be entred for the Defendant without Rule but upon any special pleading or a Similiter for the Plaintiff one Rule to be given 15. Item Upon a Demurrer tendred one Rule to joyn and upon refusal Judgement to be given 16. Item If a Plaint be removed by Recordare Pone Certiorari or otherwise from an inferior Court to the great Sessions the Defendant appearing by Attorney and giving Rule and the Plaintiff thereupon non-suited the Defendant ought not to have Costs the Amerciaments of 3 d. or that Amerciament to be increased The certain and known Rules to be observed in the proceedings of the Chancery Court of the great Sessions of the Counties of Anglesey Caernarvon and Merioneth 1. IMprimis If any Party served with a Subpoena to answer doth not appear and enter his appearance with the Register before the sitting of the fourth Court next after the said service the Plaintiffs Attornies may sitting or after the fourth Court upon filing the Bill and the Oath of the Service of Course without motion cause the Register to enter and pass an Attachment And the legality of it and the validity of the Oath to be disputed upon the Defendants appearance and no Subpoena shall issue into a foreign County without order of Court and by the entry of appearance it is to be expressed whether the Defendant appear in person or by Attorney and for how many Defendants the appearance is given 2. If no Answer Plea or Demurrer be put in before the sitting of the fourth Court next after the entry of appearance the Register ex officio to enter and grant an Attachment and upon the due return of any Attachment to enter and issue forth an alias Attachment and upon
the return thereof if cause require to enter and issue forth Proclamation of Rebellion but no sequestration without motion in Court and every of these Processes to bear teste from day to day and all contempts are to be cleared or paid for before answer be received and all Bills and Answers to be subscribed by Councel 3. If no Bill be filed against the Party served within three Courts after the entry of his appearance he shall upon the producing of the Subpoena or Ticket wherewith he was served and filing of it with his Affidavit of his service be of course dismissed with vj. s. viij d. costs and if after answer no exceptions or reply be filed and entred or other proceedings given within four Courts the Defendant is of course to be dismissed with 13. s. 4. d. costs having first by himself or his Attorney moved the Plaintiffs Attorney to give proceedings 4. After replication entred and received and issue joyned and at any time before publication either Party is at liberty to examine witnesses before the Register giving notice of the witnesses names in writing to the Attorney of the adverse party and for want of notice the examinations to be suppressed and the first interrogatories to be ministred to all the witnesses without any alteration without special order of Court 5. That in all causes wherein witnesses have been examined in the Registers office or by Commission returned and certified publication shall without motion pass if cause be not shewed by the Plaintiff or Defendant before the rising of the second Court on Wednesday in the Sessions week in the County wherein such causes arise and both parties if present or such of them as appear there in person or by Attornies that present Sessions at their peril without service of any Process in that behalf otherwise if absent and not appearing as aforesaid to be served with a Process to hear Judgement therein at such time and place as the Justices of the same great Sessions shall appoint 6. If a Bill of Costs awarded upon any hearing or otherwise be in difference between the Attornies the Register is indifferently to tax and allow the same and the order to pass according to his approbation therein without motion 7. That no motion in any cause after appearance entred be made by Councel or Attorney without notice first given of the purpose and intention thereof to the Councel or Attorney for the Party against whom such motion is to be made and that if any such motion shall be made before notice the same shall be of no effect and at every motion the last Rule in that cause to be produced 8. Where any Person shall be brought in by Process or shall appear gratis to be examined upon a Contempt he shall give notice of such his appearance to the Attorney of the other side and if within three Courts after such appearance or notice given Interrogatories shall not be exhibited to examine him or if being examined no reference shall be procured of his Examination then the Party so examined shall be discharged of the Contempts without further motion and attend the Register for taxing of Costs which the Register is to tax without further order Montgomery and Denbigh A Note of the Fees belonging to the Prâ—â—â— thonotary of North-Wales in Causes real and mixed FOr every mean Process before Appearance ij s. For every Warrant of Attorney and Essoin severally iv d. For every Declaration Plea Reply Rejoynder Surr. Demur and joyning in Demur ij s. For every Issue joyned of either Party ij s. For every Pet. visum ij s. For every Imparlance ij s. For every Writ of Grand Cape ij s. Petty Cape ij s. View ij s. Sum. ad aux ij s. Sum. ad Warr. ij s. and other Judicial Writs ij s. For every Continuance ij s. viij d. For every Challenge to the Sheriff ij s. the like to either Coroner ij s. to all three in all vj s. For Challenge unto the Array ij s. For Affirmation or Quasat thereupon ij s. For every Ven. fac ij s. q. For every Hab. Corp. Distring c. ij s. viij d. For every Tales de Circumst ij s. For calling the Jury j s. For every Adjournment of Jury Remanet or Juror withdrawn by Assent of Parties ij s. For Verdict and Judgement iv s. For every privy Verdict v s. For Reading the Record ij s. For Reading the Evidence ij s. For every Non-suit iv s. For every Capt. by default ij s. For every Writ of Seisin ij s. For Slander the Fees for the most part concur with the precedent Fees as experience will inform Fees in Personal Actions above 40 s. Debt or Damages FOr the first Bill or Pone x d. For every second third Sum. or Distr vj d. For every Warr. of Att. and Essoin severally iv d. For every Adjourn ij d. For every Decl. viij d. For every Pet. Audit viij d. For every Li. lo. xij d. For every Bar and other Pleas xij d. For every long Plea entring Indent and Awards in heo Verba for every sheet viij d. For every ordinary Issue of either Party xij d. For every Non est factum xij d. Similiter inde iij s. For every Demurrer xij d. For Issue thereunto xij d. For every Continuance j s. iv d. For every Ve. fa. j s. ij d. For every Challenge Plea Quasat or Affirmat as before per piece ij s. For every Hab. Corp. j s. viij d. Voc. Jur. j s. Tales ij s. For every Adjournment of Jury Remanet or Juror withdrawn ij s. For Reading Record j s. For Verdict and Judgement ij s. For Non-suit ij s. For Capt. by default j s. For Ca. Sa. or Fi. fa. vj d. Personal Actions under 40 s. FOr every Summons Pone and Writs thereupon issuing iv d. Warrant Attorney iv d. Declaration iv d. Euery Issue iv d. Continuance viij d. Judgement viij d. After Issue joyned the Fees are taken as in the former Action above 40 s. For Awarding upon Record and making of every Writ of Retorn Habend ij s. Second Deliver ij s. Ca. in Wither ij s. Priviledge ij s. Procedendo ij s. Certiorari ij s. Elegit ij s. Scire fac ij s. Inquir de dam. ij s. Ha. Cor. cum Causa ij s. Duces tecum ij s. Distr Ballium ij s. Distr nuper vic ij s. Sum. severans ij s. Restitution ij s. Diminution ij s. Extent ij s. Mittimus ij s. Cap. ad Respondendum j s. Exigent j s. Cap. ult j. s For Recording the Appearance of every Person Arrested ij s. iv d. For every special Bail ij s. iv d. For Entring upon Record an Infants Admission to his Gardian or Procheyne Amy by the Court ij s. iv d. For a Deed Inrolled for every side of a Roll v s. For entring every Attornies name in the Roll when he is Sworn iij s. iv d. The Fees of Common Recovery with a single Voucher NArr vers tenant
England Processes shall be pursued immediately from the Justices of the said Courts as in England also is used CXVI All such Writs Bills Plaints Pleas Process Challenges and Trials shall be used throughout all the Shires aforesaid as are used in North Wales or as shall be devised by the President Council and Justices or three of them whereof the President to be one CXVII Where there shall be some Suits in Pleas personal which cannot be well tryed before the Justices in the great Sessions for shortness of time such Issues may be tryed at the petty Sessions before the Deputy Justices as is used in the three Counties of North Wales save only for such Suits as by the discretion of the said Justices shall be necessary to be tryed before themselves Howbeit there shall be no Suit taken before any of the said Justices by Bill under the sum of 20 s. CXVIII No other Liberties Franchises or Customs shall be used or claimed in any Lordship which was anciently part of Wales whosoever be owner or owners thereof but only such as be given to the Lords thereof by force of the Statute of 27 H. 8.26 and not altered by this Act notwithstanding the Stat. of 32 H. 8.20 which see in Franchises CXIX If any Murther or Felony be committed in Wales the party or parties grieved shall make no agreement with the offender or with any other in his behalf unless he first acquaint the President Council or Justices therewith in pain of Imprisonment and grievous Fine at the discretion of the President Council and Justices or two of them whereof the President to be one the like punishment also they shall incur that labour or procure such agreement although it never take effect CXX If any person or they whose Estate he hath have peaceable possession of Lands in Wales by the space of five years without interruption or lawfull claim such person shall continue the same untill they be recovered from him by Law or Decree of the President or Council there CXXI If in personal Actions pursued before the Justices nine of the Jury be sworn and the residue make default or be tryed out in that Case the Sheriff may return other names de circumstantibus untill the Jury be full as is used in North Wales and else-where in such Cases CXXII No sale of Goods or Cattel stolen in Wales and sold in any Fair or Market there shall alter the propriety thereof such sale notwithstanding CXXIII No person shall buy any quick Cattel in Wales out of the Fair or Market unless he can produce credible witness of the person place and time he so bought the same in pain of such punishment and Fine as shall be set by the President and Council or any of the Justices in his Circuit and to answer it at his further peril CXXIV If any Goods or Cattels be stollen in Wales the Tract shall be followed from Town to Town and Lordship to Lordship according to the Laws and Customs heretofore used in Wales upon such penalty as hath been heretofore accustomed CXXV Any man being a Freeholder may pass upon a Jury in all Causes both criminal and civil Attaint only excepted saving to every man his lawfull Challenge according to the Laws of England Howbeit none shall pass in Attaint unless he have Freehold of 40 s. per annum CXXVI Tenants and Resiants in Wales shall pay their Tallage at the change of their Lords in such places and after such form as hath been accustomed in Wales CXXVII The Kings Subjects in Wales shall find at the Parliaments in England Knights for the Counties and Citizens and Burgesses for the Cities and Towns to be chosen by the Kings Writ according to the Statute of 27 H. 8.26 and shall also be chargeable to all Subsidies and other Charges granted by the Commons of the said Parliaments and pay all other Rents Farms Customs and Duties to the King as hath been accustomed Fines for redemption of Sessions only excepted which the King is pleased to remit CXXVIII Haverford-west shall find one Burgess for that Town whose Charges shall be born by the Major Burgesses and Inhabitants of the said Town and by none other CXXIX The King shall have all Felons Goods Goods of persons outlawed Waifs Estrays and all other Forfeitures and Escheats and shall be answered thereof by the Sheriffs saving the right of all others having lawfull title thereto CXXX Errors and Judgements before any of the Justices in their great Sessions in Pleas real and mixt shall be redressed by Writ of Error out of the Chancery of England returnable before the Justices of the Common Place as other Writs of Error be in England but Errors in Pleas personal shall be reformed by Bill before the President and Council and if the Judgement be affirmed good in any of the said Writs or Bills then there to make Execution and all other Process thereupon as is used in the Kings Bench of England and that the Plaintiff in every such Writ or Bill pay for the same like Fees as is used in England CXXXI No Execution of any Judgement given in any base Court shall be stayed by reason of any Writ of false Judgement but Execution may be had at all times before the reversal of such Judgement and if such Judgement shall after be reversed the Plaintiff shall be restored to what he hath lost by such Judgement CXXXII All Process for urgent and weighty Causes shall be directed into Wales by the Chancellor of England or any of the Kings Council as heretofore hath been used notwithstanding this Act. CXXXIII The Town of Bewdley in the Parish of Ribsford in Com. Wigorn. is made parcel of the County of Wigorn and united to the Hundred of Dodingtree in that County saving to the Burgess and Inhabitants of Bewdley their ancient Liberties and Franchises CXXXIV Llanstissan Vsterloys and Langham with their members are united to the County of Caermarthen and made parcel of the Hundred of Derries in that County CXXXV The Shire-Court of the County of Radnor shall be holden one time at New Radnor and another time at Preston alternis vicibus and never at Rather Goway notwithstanding the Statute of 27 H. 8.26 CXXXVI The Kings Farmer of the Subsidy and Aulnage of Wollen Cloths in the County of Monmouth and the other twelve Counties of Wales shall take for sealing such Cloths as followeth viz. for every whole piece of Frise 1 d. a half piece ob a piece of Cotton or Lining 24 yards and under ob a piece of the same above 24 yards 1 d. a broad Cloth 1 d. a piece of Kersey 18 yards or above 1 d. and for a piece of Kersey under 18 yards ob Howbeit this shall not extend to Cloth made in private Houses and not put to sale but to their Servants CXXXVII The Aulnager in Wales shall be bound and subject to the Laws and Customs of England in like case provided CXXXVIII The Town of Haverford west