Measure the Secondly delay of Execution after Judgment had and obtained IT is very well known to all Practicers I presume in this Court that in all actions brought by Bill in this Court in which after the Plaintiffs have recovered and are ready to take out Execution that a Writ of Errour may be brought thereupon by the Defendant returnable in the Court of Exchequer-Chamber and very easie at all times to be purchased but in all actions brought by original Writ and Judgments thereupon had and obtained no Writ of Errour lieth thereupon but must be returnable in the high Court of Parliament and that not so easie to be purchased the charges thereof being very great the Fees being most or all of them double over and above what those are of Writs of Errour returnable in the said Court of Exchequer-Chamber and upon the affirmation of such Judgment in Parliament there is always very great costs awarded and taxed to the Defendant in the Writ of Errour who is Plaintiff in the action for delay of his Execution occasioned by such Writ of Errour besides no Writ of Errour can be obtained in such case but when there is a Parliament in being for no Writ of Errour can or ought to be returnable ad proximum Parliamentum in regard it would be so great a prejudice and delay to the Subjects Plaintiffs in such actions the times of convening of Parliaments being so uncertain and onely lying in the King's power as Supreme it being his Royal Prerogative to Call Prorogue Adjourn and Dissolve them when he pleaseth So that for the reasons aforesaid Writs of Errour are seldom brought upon such Judgments as are recovered upon actions brought by original Writ Nay yet farther also after all this when such Judgments before obtained by Bill are affirmed upon the Writ of Errour in the Exchequer-Chamber yet may a Writ of Errour per Stat. de Anno. 27. Eliz. Cap. 8. be brought returnable as aforesaid in the said high Court of Parliament to the intollerable delay and vexation of the Plaintiffs in such actions a thing which the common Law of England in its own nature abhors and detests it being Festinum Remedium and its property such as in some reasonable time suum cuique dare and therefore it is certainly the best way so to bring actions and after such a manner especially where Titles of Land are concerned or great damages likely to be recovered that so after Judgment had Execution may not long be delayed which is for the good and interest of the Subjects who are Plaintiffs in such actions That against some sort of Persons and in Thirdly some sort of Actions there is no other way to proceed in the said Court but by Original Writ BY the Law of this Land no Peer First as to Persons thereof ought by his Body to be taken or arrested by virtue of any Writ or Process in any Civil Cause whatsoeever But although he may not be arrested yet may an Original Writ of Pone in the nature of a Summons as the Case requires issue out of the High-court of Chancery to cause him to appear at the return of such Writ in this Court there to answer the Plaintiff in such Writ named to his Complaint therein mentioned and if the Sheriff to whom such Writ is directed do thereupon return that he hath taken Pledges of such Peer to appear in this Court according as by the said Writ he was commanded and he do not appear accordingly Then upon such return there may be had from the Filizer of the said County a Writ of Distring directed to the said Sheriff commanding him that he distrain such Peer by all his Lands and Chattels c. in order to cause him to appear and if he do not thereupon appear and such Sheriff return issues thereupon ad valentiam c. Then the said Filizer may make forth an Alias distring and also upon return thereof a Plur. distring ad infinitum untill such Peer do appear and it is the usual course for such Sheriff to increase or double the issues upon every return but if he return but small issues the Plaintiff if he pleases may move this Court that such Sheriff may return better Issues that is to say greater Issues all which Issues must be by the Plaintiff's Attorney brought into the Filizer's Office who made out such Distring and from thence estreated into the Court of Exchequer there to be levied upon such Peer's Lands and Chattels by way of forfeiture to the King for his not appearing as aforesaid And upon a nichil habet returned by the Sheriff upon such Distring there may go out a Testat distring into another County where such Peer hath Lands or Chattels and be proceeded upon as aforesaid But if in case that such Sheriff do return likewise a nichil habet upon such Writ of Pone before-mentioned then the Attorney for the Plaintiff may have an alias or rather a Testat Pone from the said Filizer directed unto the Sheriff of that County where such Peer liveth and hath sufficient and upon a return of Pledges taken as aforesaid the said Attorney may proceed thereupon by Distring ad infinitum in form aforesaid And besides such honourable Persons as Peers who for their honour are said to be à Latere Regis and are protected by Law from attaching or arresting by their Bodies in all Civil Causes as is before said There are other Persons that in their politick capacity cannot be arrested or attached such are all Corporations and Societies of men that act all under one Common Seal of their Corporation as the Mayor Aldermen c. of any City The Dean and Chapter of W. The Master Wardens and Fellows of a College and the like and any Company incorporated in the City of London or elsewhere And likewise all Hundreders in any County which are liable to be sued upon the Statute of Huy and Cry where Robberies are committed and Felons escape such Bodies of Men being very numerous and no single Person in his natural capacity bound to answer in any Action whatsoever but yet they may be proceeded against to be made appear and answer in the same manner and way as the Peers of this Realm may by Distring ad infinitum and after Judgment had any of their Goods and Chattels may be taken in Execution and if it be in the Case of Corporations they must by their bye Laws apportion the Levari upon the rest and thereby ease him or them whose Goods are taken and if it be in the case of Hundreders then any Person or Persons grieved may complain to two of the Justices of the Peace of the County wherein such Robbery was committed whereof one to be of the Quorum who have full power by the Statute of 27 of Eliz. cap. 13. to tax and rate the said Hundred for and towards an equal contribution of the damages recovered that so the burthen of the Execution may
not lie wholly upon some few of the said Hundreders and thus much as to the Persons Now as to the Actions which lie not Secondly as to Actions in this Court but by Original Writ no Quare impedit Writs of Right Replevin and such like come into this Court but either by Original Writ primarily or else Plaints are entred in Inferiour Courts and removed hither by several Writs which are in their own nature as so many Originals and returnable coram nobis ubicunque c. as Writs of Recordare fac loquend Acced ad Cur. Certiorar Writs of Errour and the like and upon these there can be no prosecution by Bill in this Court So that if they could not be proceeded in by Writ this Court would lose and want much of the practice and business it now hath and hath long had and I wish long may have and the same or most part of it would be brought in the other Courts of Common Law at Westm And thus you see that against some sort of Persons in their single Capacities and against other sort in their politick Capacities and against some others as men inhabiting in any Hundred and in some sort of Actions there is no other way to proceed in this Court but by Original Writ That it is most agreeable to the Statute Fourthly lately made for setting forth the cause of Action in the Writ IT hath been formerly the practice in this Court by Bill of Middles or Latitat and process thereupon to arrest in trespass generally not mentioning the cause of action therein and yet obliging the Defendants to put in good Bail to the Plaintiff's Suit by marking the backs of such Writs or Process for good Bail and giving the Sheriff notice to take good Bail to such a Sum whatever the nature and cause of action was and by marking the Roll wherein such Writs and Process were entred for good Bail by drawing a Line under the Defendant's name and writing over it bon Manucapt and then the Attorney for the Defendant ought not to file a common Bail without searching such Rolls But this hath been thought very inconvenient and unreasonable by a late Parliament that Defendants should be obliged to put in Bail to the Sheriff to that of which they understood not any thing of the cause of action which made it very difficult to such Defendants to procure Bail especially if they happened to be arrested in places where they were strangers and therefore ought the rather to be able to satisfy such Persons as would be Bail for them what the matter and cause of action was for which in this way of proceedings the Defendants never knew untill they came at the return of such Writ or Process to put in good Bail above as it is usually called that is before some Judge of this Court and then received a Declaration And if they did not put in good Bail then such Bail-bonds as were given to the Sheriff for their appearance were forthwith put in suit which mischief being seen and considered of both in this Court and in the Common-Pleas was by the said Parliament remedied by an Act made in the thirteenth year of his now Majesty's Reign cap. 2. at the second Meeting of that Parliament The words of that Act amongst other matters are these For remedy and prevention of which so great growing evils and mischiefs and also for discouraging all frivolous and unjust Suits and causeless arrests for the future Be it enacted by the King 's most excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the authority of the same That from and after the twelfth day of February in the Year of our Lord one thousand six hundred sixty and one No Person or Persons who shall happen to be arrested by any Sheriff Under-sheriff Coroner Steward or Bayliff of any Franchise or Liberty or by any other Officer Minister Under-bayliff or other Person or Persons whatsoever within this Realm having or pretending to have authority or warrant in that behalf by force or colour of any Writ Bill or Process issuing or to be issuing out of his Majesty's said Courts of the King's-Bench and Common-Pleas or either of them in which said Writ Bill or Process the Note the true cause of action is to be expressed particularly certainty and true cause of action is not expressed particularly and for which the Defendant or Defendants in such Writ Bill or Process named is and are bailable by the Statute in that behalf made in the three and twentieth year of the Reign of the late King Henry the Sixth shall be forced or compelled to give Security or to enter into bond with Sureties for the appearances of such Person or Persons so arrested at the day and place in the said Writ Bill or Process specified or contained in any penalty or sum of money exceeding the sum of forty pounds of lawfull money of England to be conditioned for such appearances and that all Sheriffs and other Officers and Ministers aforesaid shall let to bail and deliver out of Prison and from their and every of their custodies respectively all and every Person and Persons whatsoever by them or any of them arrested upon any such Writ Bill or Process wherein the certainty and true cause of action is not particularly expressed upon security in the sum of forty pounds and no more given for appearance of such Person or Persons so arrested unto the said Sheriff or Officer aforesaid according to the said Statute in the said three and twentieth year of the Reign of the said late King Henry the Sixth in that behalf made and provided I have recited this part of the Act in his verbis for that it may be of use to them that have not the Act at large and that it may be seen how expresly and to a tittle it is fulfilled in the proceedings by Original Writ For it hath ever been the constant practice in such proceedings to express the true cause of action particularly in the Original Writ and in every Writ of Capias alias and plur thereupon to arrest and also to what Sum the Plaintiff layeth his damage that so the Defendant may procure Bail accordingly And if it happen as oftentimes it doth that such Defendant either is not arrested or doth not appear upon any of the said Process taken out against him but suffers himself to be so far proceeded against as to the Exigent yet still that he may know what he is sued for there is mention made at large of the express cause of action both in the Writ of Exigent and also in the Proclamation directed to the Sheriff where it is known or supposed the Defendant doth inhabit that so he may take care either by himself or his Attorney to appear thereunto and thereby prevent if he will his being outlawed By all which it appears that
the proceedings in this Court by Original Writ heretofore were and now are such as are altogether agreeable to the late Statute so made as aforesaid for setting out the particular cause of action in the Writ That the Filizers of the said Court have Fifthly not onely made and entred on record Writs and Process by original but also entred Declarations Imparlances Issues Judgments and divers other proceedings thereupon and also have inrolled Indentures and all this upon their Filizers Rolls IF as is said before Records themselves will not with some be looked upon as they have lately been a disputable evidence especially when very ancient it is not to be doubted but that this assertion may be also very easily proved and why they should be thought the rather to be so because of their antiquity no more reason can be given for it that I know of than that an Act of Parliament now in force and unrepealed made two hundred years since should have less power to command obedience to it than one made but twenty years since nay certainly the antiquity of any proof should make it the better And should you here have an account as it is possible to be done but with great trouble of the several Entries that have been made by the Filizers of this Court upon their own Rolls for so they are called for distinction sake onely to differ them from the Prothonotary or chief Clerks Rolls for most truly and properly all the Rolls of this Court are the King's Rolls or Rolls of the King's-Bench and that for the space of two hundred years and upwards omitting the times before that it would but tire your patience and swell this Volume to be ten times as big as ever it was intended to be But as it is easie Pede Herculis to guess at the magnitude of his whole body so by some few that shall here be set down as plainly and as truly as they may be that they may be repaired unto if occasion you may guess at the multitude that might have been inserted and therefore some few in each King and Queen's Reign within the time aforesaid may be sufficient in all reason to prove this point And now to begin with the Reign of Henry the Sixth being as is said before the oldest Rolls that are in the upper Treasury of this Court and so to bring it down according to the search I have made to these times It appears in Paschae primo ejusdem Regis In whose An. H. 6. time the Filizers Rolls were always filed first after the Rotulo primo which hath usually been a richly guilded Roll with the King's Picture drawn in the first Letter of the word Placita sitting as it were upon the Bench in Court and it sets forth the Person before whom the place were and the time when the pleadings were held To all which the chief Justice his name is put as a Witness and then the Filizer's name that provided that Roll at the bottom of it And this ought to be filed in every Term it being a great ornament to the Rolls themselves and 't is a great neglect some-where to be charged that so many Rolls for some years past have been made up without it Nay all the other Rolls following are nonsensically titled if such a Roll be not filed before them For then follow the other Filizer's Rolls and then after them the Prothonotary or chief Clerks Rolls all with this Title upon them Adhuc de Termino c. T. c. whereas if this Rotulo primo be not filed there is no Term at all appears unto which the Adhuc can have any relation And somerimes in that King's Reign they have been filed promiscuously one among another but still the Filizer's Rolls have been filed first But to return to the proof omitting the entring of Process or Writs upon originals for that is allowed to be their due of all hands It appears in that Term omitting also for brevity sake the names of the Plaintiffs and Defendants and their Attornies and the nature of the Action in rotulis 6. 9. 23. 44. 45. 58. 65. that several Filizers of several Counties entred several Issues and their names are upon the bottom of each Roll and in Mich. 2. ejusdem the like in rotulis 10. 14. 16. 18. And in the Reign of Edward the Fourth in Mich. 4. ejusdem An. Ed. 4. Regis in Rotulis 18. 57. 60. 68. the like Entries and in Paschae 5. ejusdem Regis the Rolls not being numbred but the Filizers names at the bottom there are several Issues entred and as for the Reign of Edward the Fifth it being not An. Ed. 5. three months long and the Reign of Richard the Third not three years long An. R. 3. and very troublesome they were in this search wholly omitted In Hilary 2 Henrici 7. Rolls not numbred several An. H. 7. An. H. 8. Issues entred Mich. 3 Henrici 8. rotulis 43. 49. 54. the like both as to Issues and Judgments by nichil dicit in Paschae 23. 24. ejusdem Regis the like in both Paschae 24. 25. ejusdem and Paschae 25. 26. and Paschae 26. 27. and Paschae 27. 28. the like in all these Terms Rolls not numbred but are to be found filed at the beginning of each Term and in Hilary 36. ejusdem Regis rotulo 14. is the Entry of an Outlawry in an Appeal of Murther and Paschae 37. an Issue and Judgment after a Verdict And in Hilary 1 2 of Edward the Sixth rotulis An. Ed. 6. 2. 3. 12. aliis rotulis the like Issues in Trin. 7. ejusdem rotulis 2. 8. 11. the like usque rotulum 20. In Trin. 1 Mariae rot 10. 12. 13. 15. and divers An. Mariae other Rolls the like In Paschae 1. 2. ejusdem several Issues Trin. prox the like Mich. prox rot 6. 7. 8. and other Rolls not numbred the like and Judgments Hilary 1. 2. the like in rotulis 13. 16. and in Mich. the 26 and 27 of Queen Elizabeth rotulis An. Elizab. 1. 2. 4. 16. 18. 19. and others not numbred there are two Appeals of Murther and one of Robbery and several Issues and special Pleadings In Mich. 36. 37. the like as to Issues In Paschae 44. rotulo 10. a Quare Impedit between the Queen and the Bishop of Hereford And in Paschae 5 Jacobi Roll not numbred there is An. Jacobi an Indenture entred by Howard a Filizer upon his own Roll in Trin. 7. an Issue the Roll not numbred in Hil. 9. Mich. 12. Hil. 12. Trin. 13. Hil. 13. the like Issues and Judgments by Nil dicit and Non sum informat But all these Kings and Queens Reigns have not been gradually searched in every Year and Term for it would have been too great a labour but onely some few to shew that there were no Times in which the Filizers did discontinue entring
19. the said Merefield entred an Issue wherein John Brewster was Attorney for the Plaintiff and now living and a Clerk to the now cheif Clerk and one Coxe for the Defendant it was in London Non assumpsit inter Hardman and Hayes Trin. Mich. prox the like Hil. 1658. several Issues one that the said Merefield entred for one Peter Naylor Attorney for the Plaintiff and Clerk then to the then and now cheif Clerk as able and knowing a man in Clerkship as any of his time fit to have made a Secondary of and after the Plea a relicta verificatione signed by the then Secondary Trin. 1659. Roll 12. 13. 14. an Issue and two Indentures Mich. prox Roll. 13. 14. 15. three Indentures entred And now we are come to the times of the happy restauration of his now most Sacred Majesty let us see therefore what hath been the practice lately for these twenty years and upwards last past It appears in Mich. 12. Caroli Secundi Rotulo 19. that an Indenture is there by Stone the Filizer entred Paschae 14. Rotulo 18. Sommers Ann. Car. Secundi Filizer of Middlesex enters a special Imparlance for Thomas Jekill Attorney for the Plaintiff and late Secondary of this Court Paschae 21. another Filizer enters the like Hil. 21. 22. another Indenture Paschae 23. Rotulo 16. Judicium in replevin cum retorn habend averia elongat Cap. in Withernam agard Hil. 25. 26. Rotulis 18. 19. defalt in case Scire facias super Vtlagar and an Indenture Trin. 26. Rotulo 19. Paschae 28. Rotulo 19. Hil. 28. 29. three several Indentures in each Term one Mich. 29. Rotulo 19. Nihil dicit in casu Hil. 29. 30. Rotulo 19. an Issue Paschae 30. Rotulo 18. 19. an Issue defalt Hil. 29. 30. Rotulo 19. an Issue In Paschae 30. Rotulo 18. 19. an Issue and defalt Hilary 30. 31. Rotulis 10. 18. 19. another Indenture nihil dicit non assumpsit Mich. 32. Rotulo 17. breve erroris sur Judicium in regno Hiberniae Judicium affirmetur intrat Rotulis 18. 19. two Indentures Paschae 33. Rotulo 19. another Indenture Trin. 33. Rotulis 18 19. several Issues and Judgments Mich. 33. Rotulis 18. 19. 20. two Indentures and a Distring awarded against a Peer Hil. 33 34. Rotulis 12. 13. 14. 15. 16. several Issues and defalts and Rotulis 17 19. two Indentures Paschae 34. Rotulo 18. an Issue Trin. 34. Rotulis 18 19. an Issue and a defalt and in Mich. 34. Rotulis 18 19. the like and in Hil. 34 35. Rotulis 12. 13. 14. 15. 16. 17. 18 19. the like as to Issues and defalts together also with two Indentures And now I do heartily beg the Reader 's pardon that I have tired his patience with so many particular proofs in this nature and truly I would not have done it but have saved my self and him much labour herein but that it lay upon me to make out this matter In which he may remember there are several Appeals of Murther Robery and Mayhm said to be entred which puts me now also in mind of appealing to him and not to him onely but unto all that shall reade this Treatise whether they think the Filizers of this Court have not had a right to enter Issues and other proceedings grounded upon Original Writs if so when where and how did they loose it was it either by Act of Parliament or by any other due course of Law and he that can tell me this erit mihi magnus Apollo And thus much if not too much I hope may suffice to prove that the Filizers have a right to enter Issues brought by Original Writ and other proceedings thereupon on their own Rolls as Filizers Some directions in the way of practice by Sixthly Original Writ in this Court AND first to proceed either to the arrest or to the Outlawry you may remember it hath been said before that this Court proceeds in its practice three several ways that is to say by Original Writ by Bill and by attachment of Privilege and in that by Writ this Court hath not used to proceed in some sort of Actions that is to say Debt Detinue Account and Covenant but in all other personal Actions it doth And as is elsewhere said The Original Writ issueth out of the high-High-court of Chancery to obtain which the Attorney for the Plaintiff must first consider the nature of his Clients cause of action and then draw up a precipe as it is commonly called of the whole matter in the nature of a Count or Declaration and therein he must be sure to set forth the Defendants true Christian Name and Sirname together with the Addition both of his Degree and Mystery as to his Profession and the place where conversant for if his Addition be omitted all the Proceedings are void by the Statute of Additions made in primo Henrici Quinti cap. 5. by which it is ordained and established That in every Original Writ of Actions Personals Appeals and Indictments and in which the Exigent shall be awarded in the names of the Defendants in such Writs Original Appeals and Indictments Additions shall be made of their Estate or Degree or Mystery and of the Towns or Hamlets or Places and Counties of the which they were or be or in which they be or were conversant And if by process upon the said Original Writs Appeals or Indictments in the which the said Additions be omitted any Utlagaries be pronounced that they be void frustrate and holden for none And that before the Utlagaries pronounced the said Writs and Indictments shall be abated by the exception of the Party wherein the same the said Additions be omitted Provided always that though the said Writs of Additions Personals be not according to the Records and Deeds by the surplusage of the Additions aforesaid that for that cause they be not abated And that the Clerks of the Chancery under whose names such Writs shall go forth written shall not leave out or make omission of the said Additions as is aforesaid upon pain to be punished and to make a Fine to the King by the Discretion of the Chancellour These are the very words of the Statute So that you see hereby that debile fundamentum fallit opus which ought to be the Attorny's care to prevent and he must also take care to draw up his Precipe so in substance as he will stand to it for after the Original is sealed there is no altering of it without new sealing it again and if it be in Trespass the form is thus Si A. B. fec c. tunc pon C. D. nuper London vel Middlesex de c. gen de placito quare vi armis Clm. Doum si in London Clm. si in Middl. ipsius A. apud c. fregit Et alia enormia ei intulit ad In Tusgr grave dampnum ipsius
must needs be notorious in what County they arise the Attorney knowingly laying them out of their proper Counties unless in the cases before expressed or for such other causes as shall be allowed by the Judges of the Court and duely made to be true to be severely punished That although the Declaration be delivered seven days before the last day of the next preceding Term or after yet before Plea upon Oath made the visne may be changed upon motion in the said Transitory actions the next Term after and the Defendant to plead to the new action as he should have done in the other without delay That the visne may be changed upon Oath before though the Defendant come in by Exigent And in Styles his practical Register fol. 533. it is said that in Transitory actions the Plaintiff after the Essoin-day of the subsequent Term after the appearance shall not alter his own visne though he would pay Costs or give Imparlance which seems to imply that he may do it the same Term of the appearance with leave of the Court upon motion as aforesaid But this being a discretionary act of the Court little else shall be said but left to the pleasure of the Judges of this Court who never do it without they see some necessary reason for it How to proceed so as to have a special Capias Utlagat together with the Inquisition thereupon taken sent into the Exchequer and to get a Lease from the King of the Defendants Lands THe way of this proceeding in this Court is much different from that in the Court of Common-Pleas For there the Attorney for the Plaintiff bringing in the special Capias Vtlagat with the Inquisition thereupon taken annexed into the Outlawry Office of that Court and delivering thereof to the Clerk of the Outlawries there the said Clerk forthwith maketh a Transcript of the Writ Return and Inquisition in a large Exemplifying Character and setteth his own name to the bottom of it and then he delivereth it to the Attorney for the Plaintiff who carrieth it into the Exchequer But in this Court the practice is and long hath been to go a farther way about and what the reason is for it is not well known but conjectured to be either that of the Grandeur of this Court as is said before or else to punish the Defendant the more for adventuring to run so high a contempt against the King his Crown and Dignity as not to appear in this Court after so many several Process against him but to suffer himself to be Outlawed and this to be by a pecuniary punishment arising by the charges of getting a Lease of his Lands from the King which must all come out of his Estate at the last but not to detain you any longer the way is thus The Attorney for the Plaintiff must bring the special Capias Vtlagat and Inquisition annexed into that Filizer's Office who made it out for he as is said before is Clerk of the Outlawries as well as Filizer and he will make you a Transcript of the Writ Return and Inquisition as is before said the Clerk of the Outlawries doth in the Common-Pleas Then the said Attorney taketh back the same together with the said Transcript and then fileth the Writ and Inquisition with the Custos brevium of this Court and then goeth to the Cursitor of the County where the Lands lie mentioned in the said Inquisition and he maketh him a Writ of Certiorari to certify the said Writ Return and Inquisition so filed as aforesaid into the high Court of Chancery which Certiorari he carrieth to the said Custos brevium who alloweth the same with the Lord Cheif Justice of this Court and then the Attorney delivereth the said Transcript to the Custos brevium who affixeth it to the Certiorari and then the Custos brevium sealeth up the same and delivereth it to the Attorney under Seal who carrieth it forthwith into the Petty-Bag-Office belonging to the said high Court of Chancery where it is filed of Record Out of which Office the same is sent by a Writ of Mittimus into the Court of Exchequer into the King's Remembrancers-Office there where it is likewise filed of Record after which the said Attorney for the Plaintiff retaineth one of the Attornies of that Office who will prosecute the matter so in that Court as to gain a Lease from the King to be granted to the Plaintiff who shall thereby hold the Lands demised for the Term therein mentioned that is to say for so long time as the same shall remain in the King's hands And if after the Outlawry shall be pardoned or reversed by due course of Law and the Defendant thereby restored to all that he hath lost by that Outlawry then the Attorney for the Defendant applying himself to one of the said Attornies of the King's Remembrancer's Office aforesaid and making the same appear he will get the King's Hands taken off the Estate either by sueing out a Writ of Amoveas Manus or by Petition or motion in Court or otherwise according to the custome used in that Court Somewhat concerning the drawing of Declarations by Original Writ IT hath been formerly the practice both of this Court and the Court of Common-Pleas to repeat the cause of Action twice in the Declaration that is to say to the Writ and to the Count as may appear both by Rastal's and Coke's Books of Entries but it is now in some sort of Actions left off in the Common-Pleas and in this Court also by the former orders mentioned among others it was ordered For avoiding of long and unnecessary repetitions of the Original Writ in Actions upon the Case and Personal Actions upon Penal Statutes That Declarations in Actions of Trespass upon the Case or personal Actions of any general Statute namely Huy and Cry Monopolies or for a Suit in the Admiralty and such like other than Debt repeat not the Original Writ but onely the nature of the Action viz. A. B. was attached to answer C. D. in a Plea of Trespass upon the Case or in a Plea of Trespass and Contempt against the form of the Statute and that for the avoiding of the Common Bar and new Assignment the Declaration upon an Original Quare clausum fregit may mention the place certainly and so prevent the use and necessity of it But by these Orders it doth not appear none but long Actions being therein mentioned that Trespass and Trespass and Assault and Trespass and Ejectment being very short Declarations are included therein but left to be declared in as formerly both as to the Writ and Count and so to be laid twice as heretofore hath been used in this Court The manner of removing Actions or Plaints out of Inferiour Courts into this Court and after that how to proceed in them AS to removing of Causes by Writs of Errour Certior Habeas Corpus or the like I shall pass them over as being matters very
Machell Vic. Afterwards the Latitat followed as now it is called but then rather styled a Testatum into any other County and I find it differs not at all from the now present Latitat but onely in a few words in the latter part of this Sentence following and although few yet very remarkable Super quo in Cur. nostra coram nobis testat existit quod pred A. B. latitat discurrit in Com. tuo mala quam plurima ibidem perpetrand as may appear by the Files of Latitat's there remaining by which you see that both the Plaint and Precept thereupon do suggest a tort or wrong by a Trespass done to the Plaintiff although possibly that was not the true cause of Action and afterwards suggesting in the Latitat a malefeasance by the Defendant perpetrated in another County and these Plaints and Precepts thereupon were so numerous then and the advantage of receiving and filing of them of so great moment that they have been formerly and are now likewise always excepted out of the grant to the Custos brevium of this Court by the Lord Chief Justice thereof as reserved to himself amongst other things therein excepted in these words except factur Record de Nisi prius in Com. Middlesex Transcript certification super brev errorum reception filation de lez Queriturs attachiament in eadem Cur. conservat Record de Attinct cum Feod ad inde pertinen ' as may appear by several such grants now remaining upon Record in this Court and then always such Bill or Precept went out first into that County of Middlesex where the King was then resident to take the Defendant if he might be found therein to answer the Plaintiff in such Plaint before there went a Testatum into any other County and that which was then really done as to the taking out of such Bill or Precept of Middlesex is now onely suggested in every Latitat So that when former Kings at any time have adjourned the Terms to any remote place in any other County upon any necessitous occasion as the Plague or the like as they have often done there hath always been a Bill or Precept taken out in that County to arrest any Defendant if within that County and if not then one always suggested in any Testatum or Latitat into another County and so it was no doubt when the Term was adjourned to Reading in Berkshire in the first year of the Reign of Charles the First and so it was likewise to my own knowledge when the Term of Saint Michael Anno Dom. 1665. was adjourned by our now Sovereign Lord the King unto Oxford by reason of the great Plague that then was raging both in the Cities of London and Westminster and the Suburbs thereof For then there was a Bill or Precept of Oxford to take any Defendant there Secondly Another reason may be drawn from the constant practice and course of this Court for many years as is elsewhere said to suppose every Defendant that is sued by Bill in this Court to be in Custod Mareschalli of this Court who really is not whereby to intitle the Court to a jurisdiction of the Cause and whereas the proceedings by Original Writ are by Capias Pone or Distring and the like in order to make the Defendant appear before the King in this Court the proceedings by Bill suppose him to have appeared and that he is in actual custody of the Marshall of the Marshalsey of this Court which if every such Defendant so were the now Prison of the said Marshall would not contain them no not if it were ten times as big as it is Thirdly Another reason may be this because sometimes it happens that the Attornies for the Plaintiffs have not had sufficient instructions from their Clients how to draw their Precipes to the Cursitor not knowing the true cause of Action and therefore for want of that have taken out a Latitat de placito transgr upon which the Plaintiff might have declared formerly in any Action untill of late as is before said it was enacted that a Defendant should not be held to bail except the true cause of Action were particularly expressed in the Writ since which time there is inserted in the Latitat not onely ad respondend the Plaintiff de placito transgr but also ac etiam billae ipsius Quer. versus ipsum Def. pro Centum libris de debito secundum consuetud Cur. nostrae coram nobis exhibend Or thus pro non performation promiss assumption ipsius Defenden ad dampnum ipsius Quer. Centum Librar secundum consuetud c. and so to vary in the ac etiam according to the nature of the Action and this being found formerly and also now at this day likewise to be a more easie and quick way to arrest the Defendant because it requires not so full a setting forth of the cause of Action in the Writ of Latitat as in Writ of Capias to arrest by Original it hath gained ground in this Court And as to that other matter how it hath come to pass that some Entries of Issues and other Proceedings have been made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls and this since the practice hath been so much by Bill the reason of it may be this FOR that the Clerks to the former chief Clerks of this Court for many years past have been permitted to practise as Attornies who very anciently as is conceived did not For the Reader is desired to take notice as is elsewhere before said that there are three sorts of Persons that now have privilege allowed them in this Court as Practisers That is to say First The Filizers of this Court styled as before Clerks of our Sovereign Lord the King assigned to inroll Pleas c. that is to say by Original Writ onely they made out all Process thereupon and entred them and all Issues joined thereupon and practised as Attornies as the Presentment hereafter mentioned sets forth Secondly The Clerks of the Office or Clerks to the chief Clerk of our Sovereign Lord the King assigned to enroll Pleas c. that is to say by Bill onely and these Clerks had Seats in the Ancient King's-Bench Office in the Temple which was burnt in the late dreadfull Fire of London The said Office it self was of so great and large an extent and the Seats so many in it that it looked more like a Church than an Office and incited Strangers to offer up their Devotions there when at first they came into it it was as long taking in some small rooms at each end of it which served for the Secondary for the Clerk of the Rules for the Clerk of the Declarations and the Clerk of the Doggets as Westminster Hall is broad which saith Speed in his Chronicle fol. 446. Sect. 31. is 74 foot of Assise with a proportionable breadth containing from end to end four rows of
aforesaid Salop. Bazil Hearne at his House in Basinghall Street Somers Robert Randall at Mr. Abbington's in Coleman Street Southamp Francis Caplyn at his House in Wineoffice Court in Fleetstreet Staff Michael Martyn Suffolk James Fuller aforesaid Surrey John Trye aforesaid Sussex Richard Aylwin War James Fuller aforesaid Westmorl John Hinde at the Horns in Bell Yard Wigorn.  Wilts Samuel Porter in Star Court in Friday Street Civ Cant.  C. Cov.  C. Bristol John Ayres at Mr. Philip's House in Wandall Court in Blackfryers C. Ebor.  C. Exon.  C. Glouc. Henry Ewen C. Lincoln  C. Litchf  C. Norw  C. Wigorn.  Vil. Not. William Bennet V. Kingst super Hul. William Osborne V. South Francis Caplyn aforesaid V. Pool  V. nov Cast super Tin  And where it happens that there is no Filizer any other of the above named Filizers may make out the Process and the Teste of the chief Justice is sufficient although without any Filizer's name to the same and such Filizer may also doe and perform all other matters whatsoever subsequent or belonging thereunto that so a failure of Justice in the proceedings may be prevented And when any change shall happen in any of the aforesaid Filizers by death or otherwise or any admitted into the vacant places it may be known of the Keeper of the Sign of the Latitats in this Court who keepeth a Book of the Names of the Filizers Clerks of the Office and Attornies at large of the said Court and the time when they were admitted FINIS THE TABLE THAT the practice by Original Writ is of very great antiquity in the Court of King's-Bench Page 1. That it prevents in a great measure the delay of Execution after Judgment had and obtained 6. That against some sort of Persons and in some sort of Actions there is no other way to proceed in the said Court but by Original Writ 9. That it is most agreeable to the Statute lately made for setting forth the cause of Action in the Writ 13. That the Filizers of the said Court have not onely made and entred on Record Writs and Process by Original but also entred Declarations Imparlances Issues Judgments and divers other proceedings thereupon and also have inrolled Indentures and all this upon their Filizers Rolls 19. Some directions in the way of practice by Original Writ in this Court 55. The King's Majesty's Fines upon Original Writs 59. Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the Reversal of the Outlawry 67. How to reverse an Outlawry by Writ of Errour 74. How to proceed to the Outlawry after judgment 77. Somewhat concerning Imparlances upon Suits brought by Original Writ 79. How to plead an Outlawry either in Abatement or Bar of any Action 84. Where Suits by Original Writ ought to be laid and when the Visne may be altered 86. How to proceed so as to have a special Capias utlagat ' together with the Inquisition thereupon taken sent into the Exchequer and to get a Lease from the King of the Defendant's Lands 88. Somewhat concerning the drawing of Declarations by Original Writ 91. The manner of removing Actions or Plaints out of inferiour Courts into this Court and after that how to proceed in them 93. Some reasons impartially offered to shew how it hath come to pass that the practice in this Court by Original Writ hath decreased and that by Bill increased and what hath occasioned some Entries of Issues and other proceedings to be made as well on the chief Clerk's Rolls as on the Filizer's Rolls 97. Some Precedents of frequent use both of Writs and the Entries thereupon and also Declarations Imparlances Issues Judgments and Defaults and other proceedings in Actions brought by Original Writ and entred by the Filizers 111. Le Capias Alias Plur ' Exigent 112. Le Foreign Proclamation 113. Le Allocatus 114. Le Supersedeas quia improvide ibid. Le general Cap ' utlagat ' 115. Le special Cap ' utlagat ' ibid. Intratio separal ' process de Cap ' Alias Plur ' Exig ' Proclam ' utlagaria reversat ' superinde 116. Le special ' Bail sur reversal del utlagaria 121. Le special ' Bail sur Arrest ibid. Supersedeas sur ' reversal del utlagar ' pro defectu Proclam ' ubi bona catalla Def. capt ' fuer ' per Breve de special Cap ' utlagat ' devant le reversal 122. Aliter ex assensu Attorn ' pro Quer ' sur ' Def. imposition ' Ball ' coram un ' Justic ' Cur ' 123. Breve de Cap ' ad satisfaciend ' Exigent superinde 124. Exigent post Cap ' puis un recovery pro dampnis in Commun ' Banco affirmetur in Cur ' hic sur ' brief de Errour 125. Breve de Pone sur ' un ' brief de Recordare ibid. Intratio inde 126. Breve de Distring ' super pone praedict ibid. Distring ' envers un ' Peer 127. Testat ' Distring ' sur ' nichil retorn ' envers un ' Peer ibid. Testat ' Pone sur ' tiel retorn ' envers un ' Peer ibid. Distring ' versus un ' Corporation vel Hundred 128. Un ' special Cap ' ad arrest ' ibid. Intratio inde ibid. Testat ' Cap ' superinde 129. Intratio inde ibid. Supersedeas in abatement del brief de Exigent quia Def. in ill ' nominat ' Miles quando fuit Miles Baronettus 130. Breve de Exigi fac ' post un ' Pone Cap ' retorn ' fuer ' Def. in contempt ' Dom ' Regis 131. Breve de Certiorar ' Vic' L. pro eo quod Exigi fac ' casualit ' perdit ' est super quo Def. fuit retorn ' utlagat ' 132. Distring ' Proclam ' en un ' brief envers un ' Corporation 133. Intratio de Imparlance in ascun action per original ibid. Scire fac ' sur ' pardon utlagar ' per Statut ' 134. Retorn ' superinde 135. Retorn ' habend ' ubi Quer ' fec ' defalt ' ibid. Intratio inde 136. Retorn ' habend ' alio modo ubi Quer ' fecit defalt ' breve de inquir ' de dampnis 137. Simile inquir ' de reddit ' aretro valor ' Averior ' capt ' post suggestion ' Def. in natur ' Cognition pro quodam annual ' reddit secundum Statut ' 138. Breve de secunda deliberatione 139. Non omittas 140. Intratio inde 141. Distring ' ball ' super cepi Corpus ibid. Intratio inde 142. Intratio de languid ' in Prisona super un ' Capias 143. Habeas Corpus licet languidus ibid. Intratio de amerciament ' Vic' pro non retornand ' breve de Cap ' Alias aut Plur ' c. 144. Distring ' nuper Vic' ibid. Intratio inde 145. Non pros ' pro defectu Nar ' post comparentiam super Exigi fac ' 146. Breve de Cap ' in Withernam
JVS FILIZARII OR THE Filacer's Office IN THE COURT OF King's-Bench Setting forth The Practice by Original Writ with several Precedents and other Matters relating thereunto and also a Presentment of the Fees of all the Officers in the said Court Very usefull for the Filacers and all other Practicers in that Court By JOHN TRYE of Gray's-Inn Esq Quod per Recordum probatum Non debet esse negatum LONDON Printed by the Assigns of R. and E. Atkyns Esquires for Richard Tonson within Gray's-Inn Gate next Gray's-Inn Lane 1684. TO THE Right Honourable FRANCIS LORD GVILFORD LORD KEEPER OF THE GREAT SEAL OF ENGLAND MY LORD SInce that by the hand of divine providence and the favour of our most gracious Sovereign deservedly confer'd upon You You are arriv'd to the highest Sphere in the high and honourable Court of Chancery that Officina Justitiae in which all Original Writs whatsoever are fram'd and out of which they issue forth and are returnable in all the Courts of Common Law whereby Process thereupon are made amongst others in this His Majesty's Court of King's-Bench I could not imagine with my self where to find a more fit just and honourable Patron than Your Lordship under the umbrage of whose Protection my weak Endeavours might be admitted shelter being very sensible what hazard I run in this most critical and sensorious Age without the affluence of Your Lordship's favour which I do humbly beg imploring your pardon if I have offended by this my too great presumption in regard I have not been so happy as to be so well known to Your Lordship as in the least to expect it It is a subject that I do not find hath been ever treated of as to the Court of King's-Bench by any Pen whatsoever and the path-way to it therefore being very rough hard and uneasie can never be made plain either to my self or others except it meet with Your Lordship's good opinion wherever you find the matter in it to be centred between Truth and Justice for both which I am most fully assured You are and will be a devoted Advocate My Lord I am the humblest of Your Lordship's Servants JOHN TRYE To the Impartial Reader AS Time is the Mother of all things out of whose vast Womb all matters and proceedings in Law whatsoever are form'd and fashion'd so after long continuance either through interest wilfulness or ignorance of some Practicers both in this and other Courts of Common Law many things therein are so alter'd and chang'd from what they were originally that they seem rather to have been Abortives than to have had a mature and timely production And thus I may say it is now with the practice by Original Writ in this Court for through all or some of the aforementioned causes it is as it were grown obsolete and the proceedings by Bill hath almost thrown that by Writ out of this Court I wish that by Bill all the happy success imaginable and do onely hope that this by Writ may be continued in this Court where it hath been formerly much used and as the Returns of such Writs import be as a shadow following its substance our now Sacred Majesty and his Successours wheresoever He or they shall be in England in which that He may long live and have a happy Reign is not onely the hearty desire but daily prayer of John Trye Gray ' s-Inn March 27. 1684. THE PREFACE BEFORE the several Matters in this Treatise come to be handled it will be convenient to say somewhat First To the Etymology of the word Filacer or Filizer Secondly To the nature of his Office and Thirdly To the antiquity of it And First As to the word Filacer or Filizer it is observable that Cowell in his Interpreter and the Book called The Terms of the Law likewise speaking of such Officers in the Court of Common Pleas say that it comes from the French word Filace i. e. a Thread on which as in that Court so in this it may be very well thus paraphrased That it is a Thread indeed without which anciently in this Court as well as in that there could have been no web or work made for the dispensing and administring of Justice and Right to all and a Rule that leadeth all Persons Plaintiffs in this Court so directly to their Rights that it will force the Defendants at last to appear and plead And although these Books do take notice onely of such Officers in the Court of Common Pleas yet as will appear hereafter in this Treatise former Statutes and those very ancient have and do make mention of such Officers as Filizers in this Court Or perhaps and most likely he was heretofore so called for that it may be he did not onely make out divers Writs and Process in his Office but did also thread or file up the same as the Custos Brevium of this Court now doth before ever there was any such Officer in this Court and being the King's Clerk in Court is always admitted into his Office by the Lord Chief Justice of this Court for the time being and by no other Judge thereof by delivery of a Parchment Roll of such his admission to him as Livery and Seizin of his place after that he hath taken the Oaths of Allegiance and Supremacy and this Oath following viz. A. B. You shall swear well and truly to The Filizer 's Oath upon his admission exercise the Office of a Filizer for the County of C. and also truly and diligently to extract all Fines Issues and Amerciaments due to our Sovereign Lord the King arising in your Office during the time you shall so remain Officer So help you God By which it appears that in his Office he is bound to serve the King as his Clerk and from him for that his service he hath time out of mind had a privilege to write or style himself Clerk to our Sovereign Lord the King assigned to inroll Pleas in this Court before the King himself being so styled in Cokes Book of Entries fol. 20. in a Case between Hughs a Filizer Plaintiff and Keme Defendant and entred in this Court in Trin. 7 Jacobi Regis rotulo 1490. and also in Hilar. 20. ejusdem Regis rotulo 5. in t Gosnold a Filizer Plaintiff and Dereson Defendant which said privilege hath also lately been allowed by this Court to be such upon Pleas in abatement unto Declarations filed against them in which these words ad Placita in Cur. Domini Regis coram ipso Rege irrotuland assignat have been omitted And in his Office he hath a Freehold for life granted him as may appear by the Entry of an admission of a certain Filizer on record and might be proved by divers other Precedents but one may suffice and may serve for other Entries in the like nature when granted upon a Surrender of the then present Filizer and if it be not upon Surrender yet with a little variation it may also serve
to cause him to appear if he will and if he will not then upon returns of the Exigent an Outlawry goes out against him So that in many actions there are five Writs commonly sealed in this Court in one cause before the appearance of the Defendant and after appearance in each cause a Supersedeas and for non appearance an Outlawry and divers other Writs All which matters duly considered would certainly as much augment the Revenue of the Crown of England as it hath done formerly when this practice by original Writ flourished in this Court Thirdly As to the antiquity of his Office It is evident and will be so to any person that will take the pains to search the Records of this Court in the Reign of Edward the Third that there were then such Officers as Filizers in this Court For that at the bottom of the Plea Rolls of this Court are set their Names as so many several * Or chief Clerks Prothonotaries to such Writs and Issues and other proceedings as they then entred and it is possible to prove it also before that time but this being above 300 Years since may be thought sufficient and for above 200 Years past it appears by the Statute of the tenth year of the Reign of Henry the 6th Cap. 4. and the 18th of the same King Cap. 9. where in both those Statutes the Filizers and Exigenters of this Court are mentioned that there were then such Officers in this Court and to go much farther if it were necessary it is rational to presume that there were such before the Norman Conquest For that my Lord Coke in his Preface to his third Report saith That Writs of Assise and other Original Writs were returnable into the King's Courts before the Conquest and that as Justice Fitzherbert saith in his Preface to his Book called Natura Brevium that seeing they be speaking of such Writs the Rules and Principles of the Science of the Common Law they do manifestly prove that the Common Law of England had been time out of mind of man before the Conquest and was not altered or changed by the Conquerour And therefore certainly if such proceedings then were by original Writs it is no Foreign presumption to believe there were such Officers as Filizers who made out such Writs Also under the name and Office of a Filizer in this Court is comprehended the Exigenter The Clerk of the Supersedeas the Clerk of the Outlawries and the Clerk of the Jurours and therefore it will be necessary to consider all these places apart and distinct the one from the other and to observe what they do in these several Capacities And First As Filizers they have and 1. As Filizers do and of right ought to make out and enter upon all Actions brought by original Writ all Writs and Process whatsoever some whereof are these viz. all Cap. Als. Plur. Testat Cap. Distring in Trespass and trespass on the Case and in every suit qui tam. c. in every Rapt Custod in every trespass contra formam ordinationis in every ejectione firme and such like special Actions every Cap. Als. Plur. in appeal of Murther Robbery and Maihm every Resummons Habeas Corp. Distring in Attaint and Writs of Withernam Second deliverance and retorn habend and venir fac subpoena Distring Jur. and divers other such like Writs They likewise take and enter all appearances general or special wherein good bail is required upon original Writs they enter all general and special Imparlances they make Copies of writs of Attaint and they give Rules ad narrandum ad placitandum ad replicand and the like and enter Nonsuits for want of declaring and these things and the like they do as Filizers Secondly As Exigenters they make 2. As Exigenters out and enter in the actions before mentioned and such like actions all and every Writ or Writs of Exigent and Proclamation Allocat Exigent post Cap. Scir fac sur general ou special pardon le Roy and such like Writs Thirdly As Clerks of the Supersedeas 3. As Clerk of the Supersedeas they make out and enter upon the Exigent roll in the said actions and such like all Writs of Supersedeas quia improvide or otherwise all Writs de non molestando and other such like Writs both as well upon appearance of the Defendant to the Exigent as after that the Defendant is outlawed and either his Body taken by a general Cap. Utlagat or his Lands or Goods by a special Fourthly As Clerk of the Outlawries 4. As Clerk of the Outlawries they make out and enter in the said actions all the said Writs of general and special Cap. Utlagat and deliver them of Record and transcribe such special Capias and Inquisition when returned into the Exchequer and make out likewise the Cap. pro Fine Regis sur capiat and other such like Writs and if such Outlawry be reversed they enter up such reversalls Fifthly As Clerks of the Jurors They 5. As Clerk of the Jurors likewise make out and enter in the said Actions all Distring Jur. or Habeas Corpor and deliver them of Record and as is said before attend in Term-time the grand Jury for the County of Midd. or in whatsoever other County the Court of Kings-Bench shall sit They are Attorneys of this Court as soon as they are admitted Filizers and do practise if they please as Attorneys by Writ or Bill but they cannot enter any thing by Bill on the Prothonotary or chief Clerks rolls but one of his Clerks must enter for them Their Writs and Process are always filed with the Custos Brevium and not with the said Prothonotary or chief Clerks and they do many other things belonging to their said Offices too long here to insert and are therefore here spared because more of this matter may be found in the Copy of the presentment before mentioned placed at the end of this Book In the Court of Common-Pleas the Process to the Outlawry runs through divers Officers or Clerks hands but in this Court it is all in one person the Filizer which is such a sole and absolute Officer and his Office was and is much after the same manner executed as the Prothonotary's Office of Monmouth and there was no more but one such Officer in this Court to all the ends and purposes aforesaid both before and in the time of Henry the 6th nor since in which time the practice by original Writ in this Court was greater than that by Bill Let this suffice by way of Preface to shew what Writs and Process do belong to the Filizers of this Court to make out and enter It is most certain and I make no doubt but that it will be granted me that all the supreme Courts of Common-Law at Westminster through length of time have very much intrenched the one upon the other as might easily be made appear but that being nothing to the matter
Issues and other Entries on their own Rolls as hath been unjustly reported of them But now because the later Precedents may be thought the best proof the former being looked upon by some persons it may be as obsolete by reason of their antiquity these Years following of King James have been carefully and with great labour and pains searched in order year by year It appears then in Paschae 15. ejusdem Regis one Wythe a Filizer enters an Appeal of Murther and in Trin. 15. a Judgment by defalt and a Writ of Enquiry of Damages awarded Mich. 16. one Shaw a Filizer enters an Issue wherein one Edmund Dennye who was one of the Clerks to the then chief Clerk was Attorney for the Plaintiff and afterwards was one of the Jury of Attornies that made the Presentment of the Fees at the end of this Book And in that Term also Walker and Williamson two Filizers do enter two appeals of Murther In Hilary 16. the reversal of an Outlawry pro defectu Proclamationis and divers Issues Trin. 17. the like reversal of an Outlawry and divers Issues one of them in Replevin and Judgment thereupon by Percival a Filizer and several Judgments by defalt In one of which one Tetlow was Attorney for the Plaintiff and in another one Tippet and in others one Harborn and one Bunce were Attornies for the Defendants all which four last Attornies were four of them also that made the Presentment hereafter mentioned In Mich. 17. nil dic in cas In Hilary 17. Scire facias and Judgment in Replevin and several Issues In Paschae 18. Special Plea and Issue thereupon and nil dicit in Replevin upon a Writ of Second deliverance Trin. 18. several Issues and a Defalt Mich. 18. three Defalts Hil. 18. two Issues and two Defalts Trin. 19. the like Hil. 19. two nichil dicits and Writs of Enquiry awarded Paschae 20. Special Plea and Demurrer Trin. 20. several Issues Mich. prox the like and Hil. prox one Dodd a Filizer enters a writ of Right and other Filizers several other Entries of Issues and Judgments in Trin. 21. Hil. prox and Trin. 22. the like Mich. 22. one Seaman a Filizer enters the Reversal of an Outlawry for the insufficient return of an Exigent and to winde up this King's Reign in Hil. prox Edgar Filizer of London so soon as he was Sworn enters an Issue wherein one William Jumper was Attorney for the Plaintiff who was also one of those Attornies that made the said presentment And now we are come to the Reign of Charles the First of ever blessed Memory and because some as I said before look upon the latest precedents to be the best evidence I beg leave to be more prolix in this King's Reign than in the former for these were all searched likewise gradually Some Terms having no such Entries I have here omitted In Trin. 2. Mich. prox ejusdem Regis An. Car. Primi there are divers Issues and Defalts entered and also the Reversal of an Outlawry In Paschae 3. the said Edgar enters four Issues in London Hil. 3. Paschae 4. the like by other Filizers Trin. prox several Issues and Judgments and among them the said Edgar enters an Issue by Bill after an Imparlance Mich. 4. the like Issues and Judgments by others and one Jumper aforesaid Att. pro Quer. in one of them nay in Hilary 4. the said Edgar enters other two Issues by Bill a thing which the now Filizers of this Court do not in the least pretend unto but it seems he thought it was as lawfull and as much his right to enter by Bill as it was for the then cheif Clerk or Prothonotary to enter by Writ and was then an occasion of very great difference between that Filizer on the behalf of all the other Filizers and the then cheif Clerk or Prothonotary who had entred by Writ And upon good ground it is believed that the presentment of the Fees hereafter mentioned did settle the matter between them being as is supposed procured upon the Petition of the then Filizers to his then Majesty reciting the former narrative who was thereupon pleased in a short time after to grant his Commission to inspect into all the Fees of all the Offices both in this Court and all other his Courts of Common-Law in England and Wales and to settle the same but after what manner the said difference was setled between the then Filizers and the then cheif Clerk is not known but it seems it was not so setled as to take away the right of the Filizers to enter Issues on their own Rolls as by some hath been most falsely affirmed For that they did still continue on to enter by Writ but not by Bill as may appear by Paschae 5. Issue in Ejectment verdict and Judgment entred by Fisher Filizer of Dorset-shire in Trin. 5. the aforesaid Edgar entred an Issue in London and Clerk Filizer of Norf. entred two Issues Hil. 5. Gasnold Filizer of Suf. entred a cause against two Defendants wherein the one pleaded and the other suffered Judgment Paschae 6. nil dic in Ejectment by the said Edgar and an Issue wherein John Woodward a very able Clerk of the then cheif Clerk was Attorney for the Plaintiff one very well known to some of that name now in this Court and the said Clerk was the Filizer this I mention more at large and many other I might to shew that the Filizer did not enter it as he was Attorney in the cause himself but for another Attorney but if he had I think it had argued no less a right in himself to enter than if he had entred it for another Attorney and a multitude of those former Entries I have already mentioned as well as those I am yet to set down are made for other persons Attornies for the Plaintiffs as may appear by the Records themselves In Trin. 6. divers Issues and Judgments and Scir fac sur Judic in replevin Mich. 6. Trin. 7. Mich. 7. the like wherein Merefield the then Filizer of London enters an Issue for one Creme one of the Clerks of the then cheif Clerk Plaintiff who did not certainly enter it with the Filizer to have his privilege allowed him for that he might without doubt have had if he had entred it with his own Master the cheif Clerk but questionless he did enter it with the Filizer for that he thought in his Judgment he ought so to do the said Filizer having made out all the former process and also in that Term the Filizer of Lincoln enters an Issue upon a special Plea Verdict and Judgment Hilary 7. the like by Merefield and others Paschae 8. an Issue Defalt and a Demurrer in three several causes Trin. Mich. and Hil. prox the like Paschae 9. the said Merefield enters an Issue wherein Hatton Berners was Attorney for the Plaintiff and Clerk to the cheif Clerk and another wherein the aforesaid Jumper is Attorney for the Plaintiff who
Appearance after reversal of the Outlawry it is thus The first thing the Defendants Attorney must doe is to come to the Filizer of the City or County where the Action is laid and know of him when the Plur. Capias was returnable and then search the Filizer's Rolls of that Term and there he will find the Capias alias and plur Exigent and Proclamation awarded together with the return of the Exigent to the Quinto exact upon which the Defendant stands outlawed of all which he must take a Copy from the Roll and then come to the said Filizer to enter upon the said Roll by way of averment a defect in the proceedings either against the Statute of the one and thirtieth year of Queen Elizabeth for want of a Proclamation or otherwise as the case may require and then he prepareth his Bail-piece ready and bringeth the Bail into Court together with the Defendant and then causeth the bundle or file of Writs of Proclamations to be brought into Court and by motion of Counsel at the Bar alledging the want of a Proclamation and upon due search of the said File by the Secondary of the Court and none appearing to the Court to be filed the Outlawry is reversed by the Court which is always pronounced by the Seniour Judge of the Court if he be present if not by the next which reversal together with the names of such Bail who undertook that the Defendant shall appear to a new Original Writ to be brought by the Plaintiff within two Terms against the Defendant and to satisfy the Condemnation if he shall be convicted is all to be entred by the said Filizer up to the Process of Outlawry before entred for entring of which the Filizer's Fees are 4 d. the sheet And the Court of Common-Pleas have used to make such Entries as may appear by certain Orders Vide Praxis utriusque Banci fol. 108. in t alia of that Court made in the second year of Charles the First The words amongst others are these And it is farther ordered that all Reversals hereafter made shall be entred upon the same Roll where the Exigent is awarded being the most proper and fittest place for the safety and quiet of all Persons outlawed and their Executours to find the said Reversal in future times and not upon other Terms and Rolls as is now used Which also by the several Precedents of Entries of Reversals before-mentioned may appear to have been anciently the practice of this Court. And in these and the like Cases the Defendants do in the Common-Pleas appear by Attorney But in this Court the Defendant is obliged to appear in person with his Bail except this Court upon motion give leave to the Defendant to reverse per Attornatum The reason may be presumed to be this because upon all Outlawries in Criminal Causes in this Court the Defendants have been heretofore and now are obliged to appear in person to answer the contempts of the Law to the King and thereby they were immediately taken into custody for such contempts or otherwise disposed of at the discretion of the Court and in every civil Cause likewise it is a great contempt indeed of the Law for the Defendant not to appear after so many several Writs as go out against him before he is outlawed But yet a late Parliament thought the appearing in person so great a grievance to the Subject that it did receive a debate in the House of Commons upon a Bill then brought in but no Act passed thereupon for want of time as is presumed and whether hereafter it may not be a matter fit to be farther debated I shall leave to the wisedom of the great Council of this Nation when assembled in Parliament But to return it may be such Defendant hath been obliged to appear in person out of that high respect that ought to be given to the grandure of this Court the King himself as before is said being supposed sitting there And to be outlawed formerly in the Reign of King Alfred and untill a good while after the Conquest for Felony as my Lord Coke hath it in his First Institutes Cap. Villenage Sect. 197. fol. 128. b. was very dangerous for such Persons might have been put to death by any man as well as a Wolf that hatefull Beast might For utlagatus waviata Capita gerunt Lupina But then saith he no Man could have been outlawed but for Felony But you may see there how this Inhumanity was restrained and altered in the Reign of Edward the Third And now our Laws are made more tender of life though it be of such great Malefactours that so they may be punished or discharged by the hand of the Law onely which nulli facit injuriam And although then none could be outlawed but for Felony yet as he saith there that afterwards in Bracton's time and somewhat before Process of Outlawry was ordained to lie in all Actions that were Quare vi armis which Bracton calls Delicta for there the King shall have a Fine But since saith he by divers Statutes speaking in general of such Proceedings and not of any Court in particular Process of Outlawry doth lie in Account Debt Detinue Annuity Covenant Action sur le Statute de 5 Rich. 2. Action sur le Case and in divers other Common or Civil Actions But to go on he saith farther in his Chapter of continual Claim Sect. 437. That there may be other Causes of reversal besides the want of a Proclamation and that by plea for matters apparent as in respect of a Supersedeas variance or other matter apparent in the Record And yet in these Cases saith he some hold That in another Term the Defendant is driven to his Writ of Errour And farther if the Defendant be arrested by a Capias utlagat he ought not to be discharged out of custody without a Supersedeas for the same as appears by the last mentioned Statute of the 13. of the now King the like certainly is requisite in case where his Goods or Chattels are taken or else if he be taken and would reverse the Outlawry then he may have a Habeas corpus to bring him into Court to reverse such Outlawry But if all the Process to the Outlawry be well returned entred and filed then there is no way to reverse the same but by Writ of Errour which comes in the next place to be handled How to reverse an Outlawry by Writ of Errour IT hath been a received Opinion that no Writ of Errour lies returnable in this Court upon any Action brought by Original Writ in this Court but that it must be returnable in the High-court of Parliament but certainly that must be intended where Judgment is had and obtained upon such Action for every Writ of Errour supposes a Judgment of the Court given for the words in every such Writ are Si Judicium inde reddit sit but in this case where it is no
Imparlance without consent or special rule but if upon or after those returns an Imparlance of course In London or Middlesex if the appearance be before Chrastin Ascensionis Domini or before the last return of any other Term no Imparlance without consent or special rule but the Defendant to plead as of that Term within 14 days after the end of the Term upon rule given to answer but if of Crastin Ascensionis or the last return then an Imparlance of course If a Writ be returnable Quinque Paschae or the last return of any Term the Defendant giving rules and calling for a Declaration if it be not delivered four days before the Essoin-day of the ensuing Term or more a Non-suit to be entred And likewise in the Court of Common-Pleas by their Orders made and printed in the year of our Lord 1672. If the Defendant appears upon an Arrest upon a Clausum fregit which is a general Writ and may be said to be the Common-Pleas Latitat he must have an Imparlance of course but if the Writ whereupon he was arrested be special according to the truth of the action and returnable the first or second return in any Term so as a venire facias may issue forth there the Defendant ought to answer the first Term in all personal and mixt actions but in real actions the Defendant shall have one Imparlance of course So that it appears by this order of the Common-Pleas that the true reason of the Defendant's having an Imparlance is grounded upon his not knowing by such a general Writ what he is arrested for But here it may be objected that there will not at any time need such an Imparlance in this Court because as is said before it hath been always the constant course of this Court to set forth the true cause of action in the Capias or such like Writs that so the Defendants may know what they are to appear to In answer of which not denying but agreeing wholly with what is objected it was the opinion of a very learned Judge of this Court lately deceased and who was also formerly a Judge in the Common-Pleas and so did very well understand the practice of both Courts when an Attorney for a Defendant by Summons appeared before him did order that Attorney to take a Declaration in an action of the case by Original Writ although his Client had been sued to the Exigent but in trespass onely and his reason was that the onely end that the Plaintiff had to sue the Defendant to the Exigent was but in order to make him appear to his suit and now that he had appeared it was but reason he should take a Declaration in any other personal action by Original that this Court could hold Plea of And for the Entring of these Imparlances as it is in the Common-Pleas so it is in this Court there are Imparlance Rolls on which the Declaration and Imparlance are entred and Issue rolls on which the said Declaration and Issue are entred and if the Imparlance roll be right and the Issue roll be wrong the Imparlance roll is the Warrant to amend the Issue roll by but if both happen to be wrong then they are to be amended by the Original Writ it self which is the ground of all the subsequent proceedings How to plead an Outlawry either in abatement or bar of any Action THe first thing you are to doe is to come to the Filizer where the action is laid and search with him in his Exigent Book to see if such person as you look after be Outlawed if so then to bespeak of him a general Capias Vtlagat then seal it and affix it to your Plea for if it be pleaded in disability of the person it must be pleaded as my Lord Coke saith * First Institutes fol. 128. b. forthwith sub pede Sigilli unless the Record be in the same Court But if it be pleaded in Bar and it be denyed there must be a day given to bring it in and if a man be Outlawed at the suit of any one man all men shall take advantage of this personal disability If a Defendant plead an Outlawry in the Plaintiff in disability of his person and the Plaintiff after that purchase a Charter of Pardon the Defendant shall answer because the Charter hath restored the Plaintiff to the Law So note the disability abateth not the Writ but disinableth the Plaintiff untill he obtaineth a Charter of Pardon or reverseth the Outlawry some other way If the ground or cause of the action be forfeited by the Outlawry as my Lord Coke saith in the place before mentioned then may the Outlawry be pleaded in Bar of the action as in an action of Debt detinue c. but these as is said before this Court hath not used to hold plea of by original Writ and why it hath not I know no reason but the custome of the Court for the Statute of the 25. of Edward the 3. Cap. 17. The title of which Statute is thus Process of Exigent shall be awarded in Debt Detinue and Replevin saith in general speaking of no particular Court of Common-Law in these words Item it is accorded that such process shall be made in a Writ of Debt and Detinue of Chattels and taking of Beasts by Writ of Capias and by process of Exigend by the Sheriffs return as is used in a Writ of accompt Which as by the Statute of the 52. of Henry the 3. Cap. 23. appears was against Bayliffs of Lords by attachment of their Bodies so here after the Exigent returned it is by Capias Vtlagat But in real actions or in personal where Damages be incertain as in Trespass of Battery of Goods of breaking his Close and the like and are not forfeited by the Outlawry there the Outlawry must be pleaded in disability of the person And in the aforementioned Orders and Rules of this Court among others it is ordered in this case that in the pleading of an Outlawry the mean process be not repeated but the Exigent and Outlawry joyned to the commencing of the suit The Court then being very tender and carefull of putting the Subject to any unnecessary charge made the Pleading to be as short as possibly it could And thus much may suffice as to this manner of Pleading Where Suits by Original Writ ought to be laid and when the Visne may be altered AS to this matter it lieth wholly in the breast of the Court upon motion in what cases to permit the changing or alteration of the Visne but generally the same is never granted but upon some Affidavit and by the former Orders and Rules of this Court before recited It is ordered that actions upon the Case Trespass for Goods Assault or Imprisonment arising in any English County be laid in their proper Counties unless they arise where the Justices of Nisi prius seldom come and because Trespass and Trover for Goods Battery Imprisonment and Slander
well known by most Practisers in this Court and shall onely say somewhat of removing Plaints out of such Inferiour Courts as County Courts or Sheriffs Courts and Court Barons or Manour Courts but more especially of County Courts and in them touching Plaints in Replevin there entred and sued without Writ out of the Chancery as it is said in Fitz. Nat. brevium fol. 170. if the Plaintiff or Defendant will remove such Plaints he ought to sue a Writ of Recordare out of the Chancery directed unto the Sheriff of that County in whose Court the Plaint is entred vide the Writ it self there at large which I here for brevity omit whereby it appeareth that the Plaintiff may remove such Plaint by such Writ of Recordare without any cause shewn in the Writ but the Defendant cannot without shewing cause for it in the Writ And the like he must doe in a Writ of Pone which removes such Plaints if such Replevin be sued by Writ out of the Chancery and both these Writs may be returnable in this Court and in the Natura brevium aforesaid you may find several Causes that may be inserted on the behalf of the Defendant and when such Cause or Plaint in Replevin is removed either by the Plaintiff or Defendant for in Replevin they are as it were both Plaintiffs in this Court the Defendant must enter his appearance with the Filizer of that County out of which the Plaint is removed and give a rule with him for the Plaintiff to declare and if the Plaintiff doth not declare by the time limitted in that rule against the Defendant or if he do declare and the Defendant avoweth or maketh Cognizance and upon the Issue tried or by defalt in the Plaintiff the Judgment be for the Defendant or Avowant then the Attorney for such Defendant may have in such case from the said Filizer a Writ of Return habend and Writ of Enquiry for damages and upon the Sheriffs return of this Writ quod averia elongat then the said Filizer will make a Capias in Withernam to take other Cattle of the Plaintiff's and if the Sheriff upon that doth return that the Plaintiff hath no Cattle that he can take in Withernam then the Filizer will make you a Capias against the Plaintiff's Body and so proceed to Outlawry And if the Plaintiff do declare that the Defendant yet hath and doth detein the Cattle c. and the Defendant appears and afterwards makes defalt the Plaintiff shall have Judgment to recover all in damages as well the value of the Cattle as his damages for taking of them and his Costs and to that end the Attorney for the Plaintiff may have a Writ of Enquiry of damages from the said Filizer the same proceedings in case it be in a Replevin for any dead Chattells c. And if a Replevin be sued by Plaint in the Court of any other Lord than in the County Court before the Sheriff as in the Court Barons or Manour Courts there it shall be also removed by a Writ of Accedas ad Cur. and the proceedings therein the same as before is said And if the Sheriff in any case return a tarde there may be an alias and pluries had and if a Replevin be within any Liberty or Franchâ—se and the Sheriff return upon the Writ of Replevin if it be by Writ that he hath commanded the Bayliff of the Franchise who hath given him no answer or that the Bayliff will make no deliverance then the Plaintiff may have a Non omittas to the Sheriff commanding him to enter into the said Liberty or Franchise and make the return and if the Sheriff doe it not then the Plaintiff may have an alias and plur non omittas and so a plur ad infinitum c. But if the Sheriff do not return the plur replevin abovementioned then the Plaintiff may have an Attachment against the Sheriff directed to the Coroners of the said County Vide the Statute de Ann. 17 Car. Secundi nunc Regis c. Cap. 7. made for a more speedy and effectual proceeding upon Distresses and Avowries for Rents in which you will find some former proceedings in Replevin much altered by that Statute Some Reasons impartially offered to shew how it hath come to pass that the Practice in this Court by Original Writ hath decreased and that by Bill increased and what hath occasioned some Entries of Issues and other proceedings to be made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls THE first and greatest cause or reason as is imagined of the increase of the one and the decrease of the other hath been and now is from the setled residence of the Kings of England at their Palace of Westminster in the County of Middlesex for in that County where they have resided it hath always heretofore been used in such Actions as were not proceeded in by Original Writ to take out a Bill or Precept rather and more properly directed to the Sheriff of that County to take the Defendant to bring him before the King at a certain day after a certain Return in the Term and then that Office of the Bills of Middlesex was an Office of great profit although but small Fees belonging to it by reason of the great number of them that were then taken out and upon a non est inventus returned there went out a Testatum which hath since that time gained the name of a Latitat into any other Foreign English County and this was grounded upon a Plaint brought before the King himself at Westminster and that it was so heretofore may appear by several Files of them now remaining in the former upper Treasury belonging to this Court a Copy of such Plaint and Precept I shall here set down as followeth viz. Philippus Byrd queritur de Johanne Middles ss Bateman de eo quod ipse decimo die Junii Annis Regnorum Domini Philippi Dominae Mariae Regis Reginae nunc primo The Plaint secundo vi armis videlicet gladiis c. Clausum ipsius Philippi apud Hendon in Com. predict fregit intravit Et alia enormia ei intulit ad dampnum ipsius Philippi Centum Solidorum contra pacem dicti Domini Regis dictae Dominae Reginae nunc c. Pleg de pros Johannes Doo Richardus Roo On the back of which Bill or Plaint it is thus written Ca ' r. Jovis post 18. sancti Martini Precept est Vic. quod attach Johannem Middles ss The Precept Bateman Ita quod sit coram Domino Rege Domina Regina apud Westm die Jovis prox post 18. sancti Martini ad respondend Philippo Byrd de placito transgr Et habeas ibi tunc hoc precept per. Bill Coverd On the back of which Precept it is thus returned Def. infra nominat nichil habet in balliva nostra per quod possit attach Respons Thomae Leigh Johannis
his Office which have been called the Clerks of the Crown Office which Clerks have always during our memories been Attorneys in the Court of King's-Bench and the Clerks of the King's-Bench have always during our memories been Attorneys in the Crown Office The Fees taken by the Clerk of the Crown and his Clerks during our memories respectively Imprimis FOR every person indicted Clerks of the Crown Office upon any offence as well criminal as others for the plea of Not guilty 02 s. 00 d. And upon information for the like plea 02 00 Whereof to the Master of the Office 01 08 And to the Secondary 00 02 And to the Clerk for entring it 00 02 And for every Venire fac ' upon the plea Not guilty 02 00 Whereof to the Master 01 08 And to the Secondary 00 01 And to the Clerk for making it 00 03 And of every person for the continuance of every matter upon indictment or information after issue joined for every Term 02 00 Item For every inrollment in a Quo Warranto for every Roll 13 04 And as much for the exemplification if the party desire to have it exemplified the same Term that it is entred and if it be exemplified after that Term the Fee belongeth to the Custos Brevium and not to the Clerk of the Crown  And for every Mark received by the Clerk of the Crown the Clerk for entry is allowed and weekly paid his commons 01 00 Item For every traverse which cometh out of the Court of Chancery and is enrolled for every Roll 13 04 Whereof to the Clerk for entry 01 00 Item For every other inrollment of any Patent Grant or otherwise for every Roll 06 08 Whereof to the Clerk for entry 00 06 Item For all special pleas pleaded unto an indictment or information and also of all replications or rejoinders for every Roll 13 04 But this hath not been usually paid by the Roll but according to the length of the plea in paper as near as could be guessed by the same proportion  Item For every special pardon pleaded and allowed for Felony for entry of the Indictment 06 08 And for entry of the plea the pardon the Writ of allowance and the judgment thereupon for every Roll 13 04 Whereof to the Clerk for every Noble 6 d. And for Gloves for the Judges and other Officers of the Court 13 04 All persons of quality use to give Gloves of such value and goodness as they please  Item For the plea of every pardon of course and entry of the pardon 13 04 And for Gloves 13 04 Item For entry of a Writ of errour in Felony 02 00 Whereof to the Clerk for entry 2 d. To the Secondary for examination 2 d. And for entry of the Indictment 06 08 Whereof to the Clerk for entring 6 d. For entring of every errour assign'd 2 s. Whereof to the Clerk and Secondary 00 04 For the Bayl in Court 05 00 To the Marshal and Crier 00 08 To the Writer for making the Bayl 00 04 To the Clerk that is towards the cause 01 08 For the entry of the judgment of reversal of every outlawry or indictment in Felony 06 08 And for Gloves as for the allowance of a special pardon 13 04 Item For the entry of an Indictment upon a Writ of Errour where the Indictment is not Fellony 04 00 Item For the entry of the Writ of Errour Exigent and Return assignment of Errours Reversal and Bayl the Fees are as in the case of Felony  Item For the Clerk's pains in drawing of the Errours according to the length thereof and the labour bestowed therein 3 s. 4 d. or 5 s. c. Item For every Imparlance upon Indictment or other causes except Quo Warranto for every one 04 08 Whereof to the Clerk of the Crown 01 08 To the Secondary and Clerk for examination and entry 00 04 To the Attorney towards the cause 02 08 And upon every Imparlance upon a Quo Warranto 06 08 Whereof to the Clerks for entry 00 06 And the Attorney towards the cause hath 06 08 And for the dismission of every person upon Indictment for Felony for insufficiency 06 08 Whereof to the Clerk for entry 00 06 Item For the dismission of every person upon indictment of Riot Forcible entry Trespass and such like 04 08 Whereof to the Clerk of the Crown 01 08 To the Secondary 00 04 To the Marshal and Crier 00 08 To the Clerk for drawing the dismission and for entring the Roll 02 00 Item for every fine the party maketh upon an Indictment 04 08 Whereof to the Clerk of the Crown 01 08 To the Secondary 00 04 To the Marshal and Crier 00 08 To the Clerk for making the Fine bill 00 04 To the Attorney towards the cause 01 08 Item For the Fine upon an information for the King's part where the Informer hath compounded for his part 11 00 To the Master 09 08 To the Clerk for drawing the Protestation 01 00 The Warrant of Attorney 00 04 Item For the entry of every cognition to any Nusance for High-ways and Bridges and for the Writ of Constar ' fac ' thereupon 09 04 Whereof to the Clerk of the Crown 06 08 For making of the Writ 00 04 For making the Fine bill 00 04 To the Secondary for giving over the Judgment 00 04 To the Clerk towards the cause 01 08 Item For the entring of every Postea which comes from the Judges of Assize and the judgment thereupon 08 00 Whereof to the Clerk for entry 6 d. And the like for every Verdict and Judgment upon any trial at the Bar except special Verdicts which are paid according to the length of every Sheet 00 08 Item For the entry of the submission of every Recusant his plea and judgment thereupon 13 04 Whereof to the Clerk for entry 01 00 Item For every person bound by recognisance for the Peace Good behaviour or Felony who dieth before day of appearance upon which the Sureties plead his death for the Plea drawing and entring the Judgment and the Clerk's Fees 15 04 Whereof to the Clerk for drawing and entring of the plea 04 04 Item The Clerk of the Crown who is the King's Attorney in that Court by Patent hath also upon his confession upon deposition of Witnesses 06 08 Item For every one that is discharged for any debt due to the King for any deodand Felon's goods or the like 04 08 Whereof to the Clerk of the Crown 01 08 To the Secondary 00 04 To the Marshal and Crier 00 08 To the Attorney towards the cause 02 00 And where the Debt is discharged by any Letters Patent or allowance upon a former Quo Warranto 06 08 For exhibiting every information 03 04 Whereof to the Master 02 04 To the Clerk for making the Information and Writ 01 00 Item For an appearance upon information 03 04 Whereof to the Master 02 04 To the Poor 00
01 To the Book bearer 00 04 To the Secondary 00 01 To the Clerk for entring the appearance 00 04 Item For every copy of any information or any pleas the parties pay for every Sheet 00 08 Whereof to the Clerk for every Sheet writing 00 02 Item For copies of Indictments of Trespass Riot Force or the like if it be but short 02 00 If it be of any length above two Sheets 03 04 Item For every copy of Indictment in Felony 06 08 Item For the Inrolment of every Writ of excommunicat ' capiend 02 04 To the Master 02 00 To the Secondary 00 04 To the Attorney also in the cause 03 04 Item For every Capias sued out upon the Writs of excom ' capiend 02 06 All which is paid to the Master of the Office and the Clerk hath the Attorney's Fee in regard the Writ is very long 03 04 Also the Attorney that appeareth or doth any act in Court for any Defendant hath as in all cases at the common Law for his Fee 03 04 And in Quo Warranto traverse of Lands Writs of errour in Felony being extraordinary cases and but rare 06 08 Item For drawing of all Pleas Replications and Rejoinders c. upon Quo Warranto for every Sheet 01 00 And for drawing all other Pleas Replications c. for every Sheet 00 08 Item For every Writ of Peace or good behaviour 04 07 To the Master of the Office 01 08 To the writer of the Writ and Warrant 00 08 To the Attorney towards the cause 01 08 To the Secondary 00 01 To the Under-clerks 00 06 Item For the Supersedeas for the peace or the good behaviour 06 00 To the Master for the Recognisance 01 08 To the Secondary 00 04 To the Master for the Writ of Supersedeas 01 08 To the writer of the Writ and Recognisance 00 07 To the Secondary for signing the Writ 00 01 To the Attorney towards the cause 01 08 For every attachment in contempt against any person 04 00 To the Master of the Office 01 08 To the Clerk 01 08 To the Maker of the Writ and Warrant 00 07 To the Secondary 00 01 Item For every Bail taken for appearance 04 00 To the Master of the Office 01 08 To the Secondary 00 04 To the writer for making it 00 04 To the Attorney towards the cause 01 08 Item For the discharge of every person upon any Bail of the Peace Good behaviour Contempt or any other Bail 04 00 To the Master of the Office 01 08 To the Secondary 00 04 To the writer for making the Warrant for discharge 00 04 To the Attorney towards the cause 01 08 Item For every Certiorari for removing Indictments Informations Presentments or any other Record 04 00 To the Master of the Office 01 08 To the Secondary 00 01 To the writer of the Warrant and Writ 00 07 To the Attorney towards the cause 01 08 Item For every Certiorari in Felony the same Fees onely the Attorney hath over and above the former his Fee of 03 04 Item For every Supersedeas of the Peace coming out of the Chancery and allowed in the Court 04 01 Whereof to the Master 02 00 To the Secondary 00 05 To the Attorney towards the cause 01 08 Item For the Bail of every person that is brought in upon any Habeas Corpus 05 02 Whereof to the Master all except the Secondary 00 04 To the Marshal and Crier 00 08 To the Clerk for making the Bail 4 d. Item For every Capias utlagat ' special sued out against any person 04 00 To the Master of the Office 01 08 To the maker 00 03 And the Secondary for signing 00 01 To the writer of the Writ and Warrant 00 07 To the Secondary for signing it 00 01 To the Attorney towards the cause 01 08 These for the most part are made without Fee  Item For every Writ to remove Prisoners out of any County to receive trial in another 04 00 Divided as Certiorari and Habeas Corpus are but most of these are made without Fee pro Rege  Item For every Writ of Procedend upon a Certiorari and Habeas Corpus 04 00 Item For every Writ of Duces tecum upon the Retorn of the Sheriff that the party is languidus 04 00 Divided as the Habeas Corpus  Item For every Writ De gestu fama 04 00 Divided as the Certiorari  Item For every Supersedeas granted upon an Indictment or other matter in case where any person is in exigent to the keeper of the Calendar if the party make Fine for every name 6 d. Or otherwise to the Secondary 00 06 Item For every Supersedeas granted upon any Indictment if the party do not make Fine then the Secondary 00 06 Item For every Supersedeas for any person upon any Indictment of Felony where the party is in exigent 01 08 To the maker of the Writ 00 03 To the Secondary 00 01 Item For every Writ of restitution to restore a Man to his Lands Goods or Chattels upon any cause 06 08 Whereof for ingrossing of the Writ 00 06 Item For entring the same upon the Roll 01 00 Item For every Writ of Supersedeas upon a former restitution wherein the Lands are to be reseized again upon the insufficiency of the Indictment the Master of the Office hath 13 04 Of which the Ingrosser of the Writ hath 01 00 Item For every Writ of seizure of Liberties 13 04 Whereof to the Clerk for making the same 01 00 Item For every Writ of Mittimus of a Record transcribed into the Court of Wards or Exchequer 06 08 Whereof to the writer of the Writ 00 06 And for the Transcript according to the length of the Record by the Roll  Item For every Writ of Execution namely Capias ad satisfac ' Fi. fa ' or Elegit 06 08 Whereof to the writer of the Writ 00 06 Item For every Writ of Non molestand granted upon Pardon pleaded or Outlawry reversed 06 08 Whereof to the writer of the Writ 00 06 Item For every Scire Facias sued out by any person for breach of the peace or behaviour 06 08 To the Writer thereof 00 06 Also to the Clerk for drawing the Surmise or breach to the length thereof  Item For every Scire facias in Felony Diminuc ' immediat ' c. 06 08 Whereof to the Writer 00 06 Item For every Subpoena ad testific ' attachment upon Information or other ordinary Writ 04 00 Divided as the Habeas Corpus  Item For a Ve. fa. de novo upon a traverse out of the Chancery which is very rare 06 08 Whereof to the writer 00 06 Item For entring of every Rule given in Court 00 04 And no more for the Copy unless it be of extraordinary length which is very rare  For examination upon Attachments of Contempt we do not know what hath been anciently taken by reason of the fewness
in hand shall be passed over and that it is as difficult to reduce their ancient practice into its right and due course as it is to divert the water of Thames from running in its now Chanel but yet certainly it is not so hard a task for any of the said Courts to set to rights the different practice within the same according to its ancient use and Custome and thereby hinder one Officer from intrenching upon another which brings me to the first matter intended to be handled which is as follows THE FILACER'S-OFFICE IN THE Court of King's-Bench That the Practice by original Writ is First of very great antiquity in the said Court FOR the proof whereof it is necessary to observe that heretofore and now at this time also there are three several ways of proceedings in this Court that is to say by original Writ by Bill and by Attachment of privilege The First Grounded upon a Writ issuing out of the high Court of Chancery returnable in this Court The Second Grounded upon the Custome of the Court. The Third Grounded upon the grace and favour of the Court besides divers other proceedings upon Actions removed out of inferiour Courts by Writs of Recordare Certiorari Habeas Corpus and the like into this Court and although my Lord Coke in his Preface to his eighth report saith that all the four supreme Courts at Westminster be all the King's Courts and have been time out of Memory of Man so that no man knoweth which of them is most ancient yet without doubt it may be easily known what was the original practice in this Court for the said Lord Coke treating of this Court in his 4th Institutes Cap. 7. saith that if a Writ be returnable coram Justic nostris apud Westm it shall be returnable in the Common-Pleas but if it be returnable in this Court it must be thus coram nobis ubicunque fuerim in Anglia and takes no notice of any Writ returnable in this Court at a certain place and farther he saith in the same Chapter that in former times some ill disposed Clerks of this Court because they could have no original Writ out of the Chancery for Debt returnable in this Court they would sue out an original Writ in an action of trespass a mere feigned action and so proceed to the Exigent whereas in truth the cause of Action was for Debt and when the Defendant appeared c. all the former proceedings were waved and a Bill filed against the Defendant for Debt This he there saith is an unjust practice in derogation of the dignity and honour of this Court and worthy of severe punishment according to the Statute of Westm the First Cap. 29. when it is found out And now in these times although some Clerks and Attornies of this Court doe not the very self same thing yet they come very near to such irregular practice for that they do very often proceed by original Writ in such actions as they may justly proceed in as far as the Exigent and when the Defendant appears thereunto by Supersedeas then is there a Bill filed or Declaration delivered in Debt or any other action by consent of the Attornies on both sides supposing the Defendant to be in Custod Marescalli c. as if he had been arrested by a Bill of Middles or Latitat that supposes a Bill in this Court and so waive the whole former proceedings by original Writ and proceed on to Judgment by Bill a matter certainly worthy to be taken notice of by this Court as an abuse put upon the ancient proceedings by original Writ therein and not onely against a known rule or maxim in Law expresly Quod omnis brevis Judicialis sequitur suum Originale but also may prove very prejudicial to the Plaintiffs in such actions if the same should happen to be taken notice of there being nothing in Court as a foundation to warrant such proceedings by Bill and so all as it were coram non Judice And it seems that that great and learned Lawyer looked upon all Writs whatsoever returnable in this Court to be returnable coram nobis that is coram Domino Rege ubicunque tunc fuerit in Angl. this Court being moveable with the King's Person and not local as the Common-Pleas is and therefore called the Kings-Bench and that this is the natural and genuine style of this Court may be gathered from hence that several of the former Kings of England have sate personally in this Court as the said Lord Coke saith in the same Chapter and as Speed in his Chronicle fol. 595. observes that Henry the Third sate in person with his Justiciars upon the Bench at the Arraignment of Peter de Rivallis and others and that he gave Sentence against him and sent him to the Tower And also Sir Richard Baker in his Chronicle fol. 205. saith that Edward the Fourth sate in Michaelmas-Term in the Second year of his Reign three days together publickly with his Judges in this Court to acquaint himself with the orders of the Court and to observe what needed reformation in it either at Bench or at Bar. The former of these Observations together with some other matters in the like nature are reported by Mr Serjeant Rolls in the first part of his abridgment fol. 535. And I believe it to be the hearty desire and affectionate wish of every Loyal Subject especially of the long Robe that his now Majesty would be graciously pleased once in his Reign at the least to honour this his peculiar Court with his most glorious presence a sight certainly that would be in its self so transcendently excellent that it would parallel if not exceed that of his Coronation But to come more close to the matter proposed It appears as is said before if the most ancient Records may not possibly be by some against usual practice as they have lately been esteemed the weakest evidence that in the beginning of the Reign of Henry the Sixth which is now above two Hundred and Twenty years since and are the oldest Rolls now remaining in the upper Treasury of this Court and long before that time also by Records in other places and from that time untill about the beginning of Queen Elizabeth's Reign The proceedings in this Court were more by Original Writ than by Bill The several Terms and Number Rolls and the years in which they are being too numerous here to insert and would have made this Book larger than intended and therefore it is left to the Judicious Reader if he pleases for his own satisfaction at his leasure to search the same Records which are very well worthy the labour and trouble of any that desire to be acquainted with antiquity of this nature And this may be sufficient to shew that the Practice by original Writ although now much decreased from what it was at first hath been very anciently used in this Court That it prevents in a great
with the Custos brevium if it be not in Middlesex if so then with the Lord Cheif Justice and some time before the day in Banck which is always the Essoin-day of the next Term after any Assises if the action lie in the Country or if in London or Middlesex then before the next Essoin-day after the Tryall he bringeth the Issue to the said Filizer to be entred upon his Rolls and in the aforesaid Venire facias and Distring there need not to be 15 days as in other process before Issue joyned between the Teste and return of each Writ and this appears by the Statute before mentioned made in the 13th year of his now Majestye's Reign The words of which Statute amongst other matters are these And whereas very many Suits commenced by Original Writs have been protracted and long delayed from Judgment and Execution by reason of the necessity of having fifteen days at the least between the days of the Teste and the days of Return of Writs now used in personal Actions and also in Actions of Ejectione firmoe for Lands and Tenements For remedy thereof and for the more easie expediting Trials and the better and more speedy executing of Judgments for the time to come Be it farther enacted by the Authority aforesaid That in all Actions of Debt and all other personal Actions whatsoever and also in all Actions of Ejectione firmoe for Lands or Tenements now depending or which at any time hereafter shall be depending by Original Writ in either of his Majesty's Courts aforesaid after This Court of King's-Bench being before mentioned in this Statute any Issue therein joined to be tried by a Jury and also after any Judgment had or obtained or to be had or obtained in either of the Courts aforesaid there shall not need to be fifteen days between the Teste-day and the day of Return of any Writ or Writs of Venire facias habeas Corpora Jurator or distring Jurator Writs of Fieri facias or Writs of Capias ad satisfaciend and that the want of fifteen days between the Teste-day and the day of Return of any such Writ shall not be nor shall be assigned taken or adjudged to be any matter or cause of Errour any Law Custome Statute Course or Usage to the contrary thereof in anywise notwithstanding Provided nevertheless that this A Proviso not to extend to a Capias and Exigent thereupon after Judgment or to a Capias ad satisf to make the Bail liable Act nor any thing therein contained shall not extend or be construed to extend to any Writ of Capias whereon a Writ of Exigent after Judgment is to be awarded nor to Capias ad satisfaciend against the Defendant in order to make any Bail liable but that the same continue and be as if this Act had never been made But to return to our former matter when the Attorney for the Plaintiff hath obtained a verdict and given rules and signed his Judgment he then entreth it up to the Filizer's Issueroll as aforesaid and taketh for his Fees the like Fees as by Bill But if the Defendant appear not at all but suffer himself to be returned outlawed upon the Exigent or Allocat then he bringeth the Exigent to the Filizer that made it out or else he fileth such Exigent himself with the Custos brevium of this Court and then getteth a Certificate from him that it is filed and bringeth it unto the Filizer and then he will make him out either a general or special Capias utlagat And this is all at present that may be thought necessary in this matter by way of direction Onely this let him take notice that Hilary Term is not so convenient a Term to begin to sue to the Outlawry in as other Terms are for the Defendant will not be outlawed then under four Terms although the Action be laid in London because of the short vacation that is between Easter and Trinity Term and in any other he will in three if the Original be returnable the first return of the Term. Also to observe in his Writs if he make them himself and carry them to the Filizer to be signed that as a man is always said to be utlagat outlawed So a Woman is always said to be Waviat waved that is to say derelicta left out or not regarded because Women are not by the Law obliged to be sworn in Leets to the King as Men are And now for the testes and returns of his Process he is hereby referred to a Modus return brevium placed toward the end of this Book And farther let him observe that if in an action of the Case where the cause of action is at large set out the damage be laid in the Writ of Capias to arrest to Ten pounds or above his Client ought to have good Bail but not so if the Defendant appear upon the Exigent or Allocat although it be laid 500 li. damage And if such Action be laid in London the Defendant will be sooner outlawed in respect of the Hustings there than in any County for that they are held in less time than the County Courts are holden in for there must be five Hustings returned upon the Exigents in London and five County Court days in the Counties at which the Defendant hath been called and hath not appeared Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the reversal of the Outlawry AS to the appearing upon the Arrest Appearance upon arrest if special Bail be required it must be thus The Defendants Attorney must come to the Filizer where the Action is laid and enter his special appearance that is by giving in a note to him of the Bail who they are and where they live and then the Filizer will go with him before some Judge of this Court and put in the Bail before him and then the Defendant's Attorney must give in a note of the Bail and before what Judge put in unto the Plaintiff's Attorney and if he accepts of the Bail he puts his hand to the Bail-piece that he doth so and then he fileth it with the Custos brevium of this Court and if the Plaintiff's Attorney excepteth against the Bail the Defendant must get his Bail to justify themselves before the Judge and yet if after that the Plaintiff is not satisfied with the Bail the Defendant must either put in other Bail or else justify the same upon oath in the Term-time in Court and then the Plaintiff is bound to accept them And as to the Appearance to the Exigent appearing on the Exigent there as is said before no Bail is to be given but onely the Defendant is to enter his appearance with the Filizer per Attorn suum and then taking from him a Supersedeas Quia improvide suggesting such appearance in the Writ which Writ he must deliver to the Sheriff And as to the appearing upon the reversal
le Original sit ret ' in Octab ' Sancti Hillarii Tunc Cap ' ret ' in Octab ' Pur ' beatae Mariae T. The first day of Hillary Term. Alias ret ' à die Paschae in xv dies T. The last day of Hillary Term. Plur ' ret ' à die Paschae in quinque Sept ' T. The first day of Easter Term. Ex ' Procl ret ' à die S. Mich ' in tre◠' Sept ' T. The Essoin day of quinque Paschae Si in Quind Sancti Hillarii Tunc Cap ' ret ' à die Paschae in xv dies T. The Essoin day of quind Hill Alias ret ' à die Paschae in quinque Sept ' T. The first day of Easter Term. Plur ' ret ' in Crast ' Sanctae Trinitatis T. The Essoin day of quinque Paschae Exig ' Procl ret ' à die S. Mich ' in tres Sept ' T. The first day of Trinity Term. Si in Crast ' Pur ' beatae Mariae Tunc Cap ' ret ' ut supra in Quind Sancti Hillarii T. The Essoin day of Crast ' Pur. Alias ret ' ut supra in Quind Sancti Hillarii T. ut supra in Quind Sancti Hillarii Plur ' ret ' ut supra in Quind Sancti Hillarii T. ut supra in Quind Sancti Hillarii Exigent Proclam ' ret ' ut supra in Quind Sancti Hillarii T. ut supra in Quind Sancti Hillarii Si in Octab ' Pur ' beatae Mariae Tunc Cap ' ret ' ut supra in Quind Sancti Hillarii T. The last day of Hillary Term. Alias ret ' ut supra in Quind Sancti Hillarii T. ut supra in Quind Sancti Hillarii Plur ' ret ' ut supra in Quind Sancti Hillarii T. ut supra in Quind Sancti Hillarii Exigent Proclam ' ret ' ut supra in Quind Sancti Hillarii T. ut supra in Quind Sancti Hillarii But note it is best if your cause of Action in point of time arises so as will permit it to have all Original Writs to be returnable of the first Return in any Term for that then the Defendants will be sooner outlawed Also take care no Writs or Process be Teste on a Sunday for dies Dominicus non est dies Juridicus This Modus will serve as to some retorns of the Originals therein where the actions are laid in the Counties as well as where they are laid in London and where there is not time long enough between the Teste and Retorn of the Exigent as is said elsewhere there must be an Allocatus except at first you make the Exigent and Proclamation of a longer return And it is a received opinion by some Clerks that a Term may be skipped or passed over between the Teste and Return of the Exigent as it is in the Modus aforesaid of Hilary Term in an Original returnable in Octab. Sancti Hillarii there the Teste of the Exigent is the Essoin-day of Quinque Paschae and it is returnable à die Sancti Michaelis in tres Septiman ' so that Trinity Term is wholly omitted but others I have known and very good Clerks they have been that have been of another opinion and have looked upon it to be a discontinuance in Law to pass over any Term and I much question their Logick that by doing otherwise yet pretend it to be a continuance for if no adjournment of any Term can be otherwise than from Term to Term or from return to return and no proceedings by way of entring Writs and continuing them to be given in evidence in causes where the Statute of Limitations is pleaded against such Plea but such continuances must be always from Term to Term and the like is always observed in the continuance of any Elegit Scire fac and such like Writs and in all Imparlances and also in every Cur ' advisare vult then certainly à fortiori no Term in any proceedings whatsoever by Original Writ ought to be omitted but such Writs always to be made returnable either de retorno in retornum or de Termino in Terminum and if otherwise made may create a Moot Point in Law and doth wholly frustrate the end of making the Writ of Allocatus which is provided to supply the Defect that sometimes happens and falls out between the Teste and return of the Exigent in not having length of time enough between the same for the Sheriffs to make returns if in London of five Hustings or in the Country of five County Court-days at which the Defendants must be called and do not appear before they can be returned Outlawed And that these directions being made for the ease of the Attornies may not in any sort turn to the prejudice of the Filizers whom it may be after such Process is made according to the Modus aforesaid may not be applied unto for the signing of such Writs and Process and be paid their just and due Fees for the same give me leave to present you with this Rule of Court following Dies Sabbati prox ' post Crast ' Ascensionis Domini Anno 31. Car. 2. Regis ss Ordinat ' est quod omnia brevia Regula generalis process quaecunque super brevia original emanand ante comparent ' Defend signari debent per Filizar ' hujus Cur ' secundum consuetudinem hujus Cur ' ex motione Magistri Williams per Cur ' But certainly it belongs to them also to make and so consequently to sign other Writs and Process after appearance of the Defendant as well as before as appears by the Copy of the Presentment of Fees following where there are Fees set down for these three Writs viz. Venire fac ' Distring ' jur ' and Subpoena ad testificand which none certainly will deny to be Writs after appearance and although the Exigent post Cap ' Supersed upon reversal of an Outlawry Scire fac ' of several sorts nay the very entring of Appearances themselves either general or special and many other things as is said before are omitted out of the said Table yet they do pari ratione without all dispute belong unto them as Filizers and it is very easie to prove that anciently they have made out such Writs and Process and without all doubt whatever is begun on the Writ-side by the Filizer should and ought likewise to be carried on and ended by him and the Bill-side hath no right at all to intermeddle with it no more than the Writ-side hath to intermeddle with the Bill-side And now as a conclusion to the whole matter I shall here give you an account of a certain Commission mentioned in the Preface dated the Second day of February in the fifth year of the Reign of Charles the first of ever blessed memory and now above fifty years since which out of his Princely zeal and love to his Subjects and to hinder the growth of extortion in Fees in all his then Majesty's Courts of Common Law and Civil