shall returne a Cepi Corpus vpon any of them then the Plaintiffe shall haue no farther Proces against the Defendant If vpon any such Returne no Appearance shall be made on the Defendants part then the Plaintiffes Attourney must goe to the Phillzoers or the Prothonotaries and get the same Writ or the Returne thereof taken out And then giue to the Sheriffe Day to bring in the body of the Defendant or else be amerced at the discretion of the Iudges And if the Sheriffe doe not bring in his prisoner by the day giuen then the Plaintiffes Attourney is to get the Amerciament to be Estreated And to sue out a Writ of Habeas Corpus to bring in the body of the prisoner And if the Sheriffe who did so arrest the Defendant bee out of his Office before hee doe returne your said Habeas Corpus and the Defendant appeareth not yet then you are to sue foorth Distringas nuper vic The Phillozer vppon making out of the first Capias enters into the Role an Apposen So that it may appeare vpon Record which Apposen the Plaintiffe may continue for a Terme two or more if he please And their Common Processe must haue at the least fifeteene dayes betweene their Teste and Returne If Proces remaine vncontinued by diuers Termes and no exceptions be made thereof by the Defendant the same may bee continued by the Plaintiffes Attourney paying to the Phillozer or his Clarke for euery continuance foure pence per peice And if the Defendant do dwell in one County and the Suite bee commenced in another Then there must goe forth a Proclamation vnto the Sheriffe of the County where the Defendant doth dwell at the time when the Exigent is awarded And this Proclamation must beare Teste and Returne with the Exigent and both must bee returned the Defendant not ap pearing And if the Defendant doe put in Supersedeas before the returne of the Exigent then the Plaintiffe neede not care for the Returne of the Proclamation And if the Defendants Attourney come not to the Prothonotaries Clerke and take a Copie of the Declaration and make an answere to the same within nine dayes after the Returne of the Exigent Iudgment shall be awarded against the Defendant And if the Plaintiffe do not make his Declaration ready within foure dayes after the Returne of the Exigent Then the Defendant may call the Plaintiffe non Suite and recouer his charges And if the Defendant will haue a Supersedeas vppon Maine-prise It must bee sued out of the Clerke of the Treasury his Office vppon Sureties That if the Defendant make default hee shall pay the fine If the Sheriffe returne to small Issues vppon Distresse the Plaintiffe may haue Amerciament against him and haue him called into the Court to amend the Issues for the Kings aduantage If the Plaintiffe bee not ready to Reply vpon pleading He may enter Imparlance and giue day ouer vntill the next Tearme vnlesse the Defendants Attourney preuent him by giuing to him a Rule and day certaine to Ryply At the day of Imparlance The Plaintiffe is to call the Defendant and to giue him a day to plead or answere againe or to make it knowne whether hee will stand to the Plea or Answere which he made in the precedent Terme or no And if the Defendant doe neither make knowne that hee will then stand to his former answere nor answere de nouo vppon ordinarie dayes giuen vnto him Hee shall be Condemned in the Cause for hee cannot then refuse as hee might vpon an Al. bre VVhen any matter is pleaded to an Issue The Plaintiffes Attourney must haue a care to see the Issue be rightly entered into the Prothonotaries Role And thereuppon put in his VVarrant of Attourney if it bee not in before at the Exigent in manner as aforesayd But it is most requisite that the VVarrant should bee put in vppon the Exigent by the Plaintiffes Attourney for feare least the Defendant should not appeare but be returned vtlawed And the Defendant in case the Plaintiffe shal faile to put in his Warrant as aforesaid may sue error in the proceeding and assigne the want of a VVarrant which is manifest error and thereuppon the Plaintiffes attourney shall pay tenne pounds After the Issue is entered the Plaintiffe may sue forth Venire facias or else continue it for a Terme or two And vppon the Plaintiffes default by ouerlong delay the Defendants attourney may sue forth Venire fac pannell Note that you may enter the first Ven. fac returned fifteene dayes after at which day the VVrit of Nisi Prius with the Hab. Corp. is also awarded and the Triall likewise if it bee in London After verdict vppon Triall the Postea is returnable in his due time Thereupon the iudgment is entered and a Capias goeth foorth first into London because the action is laid in London This Capias is to be returned fifeteene dayes after Non est inuentus and then goeth forth Capias with Testat into the Country where the Defendant dwelleth then is execution sued out and not before Note also that if the Sheriffe at the day of the Ven. fac do returne rhe same sued then the Plaintiffes attourney may haue a Hab. Corp. theruppon to be made by the Clerke of the Iuries which hee is to see well examined when hee fetcheth the same away from thence And at the Returne of the said Hab. Corp if it be at the assizes and the Iury fill not at the calling of them the Plaintiffes attourney may craue a Decem tales et circumstantibus Ten the like of those that be standing by to fil vp the Iury. But if it be at the Common-pleas Barre He may not craue a Tales de Circumstantibus but a Tales onely or sue a Distresse with a Tales The first onely is a Decem Tales at the Barre The second an Octo Tales if the Decem did not fill Soe from Octo vnto Quinto and from Quinto to Duo Tales hee must discend till the Iury be filled all which the said processe must bee taken out of the Prothonotaries Office or the Office of the Clerke of the Iuries which bee respectiuelie entered most duely And if the Sheriffe vppon any of these sayd VVrits doe returne Tardè for want of sufficient time to warne the Iury You are to sue forth an Al. distress Note that if a Plea bee pleaded heere by the Defendant and the Plaintiffe haue therevppon replyed if if it bee a plea of a former Terme the defendant can neuer amend or with-draw his plea except it bee in Letters or Syllables But if it be in the same Terme he may For in this Court euery plea is or ought to be entred in euery Terme as it is pleaded howsoeuer it is otherwise in the Kings Bench. If the Defendant be returned sufficent in an action of Trespasse A Distresse is to be awarded And if hee be returned Nihil then the seuerall Cap and an exigent be awarded If an Vltary
bee returned then lyeth a Capias vtlagant generall which is for the body onely Or else a Cap. vtlagat speciall which is for the body and goods Note that if you doe sue any of the Nobilitie of this Land who are of the Parliament House in any action whatsoeuer wherein Processe of Vtlary lyeth Although the Sheriffe returne him Nihil habet yet you may not sue a Capias against him but a Pone into the Shiere where his Land lyeth wherevppon if he do not appeare hee looseth fiue pounds And after a Pone you shall sue a Distresse and Distresse after Distresse in infinitum vntill he doth appeare If after the Sheriffe haue taken the Defendant vpon a Cap. ad satisfaciend for the Plaintiffe He suffer him to depart vpon Sureties or pawne and commit him not to safe keeping It shall bee said an escape against the Sheriffe And then the Plaintiffe may at his election choose whether hee will call for the Returne of the VVrit or sue the Sheriffe for the Escape and recouer his Debt and Charges against him O therwise hee may haue his Capias and Exigent and vpon Returne thereof vtlaw the Defendant vpon the Iudgment After this kinde of Vtlary the Defendant shall neuer haue his pardon except he first agree with the Plaintiffe and satisfie him Also the Plaintiffe may at his election haue a VVrit of Elegit in this case to extend vpon halfe the Lands and goods of the Defendant except Cattle and Oxen for his plough c. But it behooueth the Plaintiffe to take good heede how he sueth forth the said VVrit of Eligit For if it be once entered you shall neuer haue any other Execution Also after a iudgment the Plaintiffe may haue an Execution of Fieri facias de bonis catallis and thereby leauey his whole summe that is giuen with the Costs or some part thereof according to the value of the goods of the Defendants which he can finde And if at the first he bee not satisfied of his whole summe hee may sue forth another Fieri fac and so one after another till he bee fully satisfied of his whole Debt Your Processe being in a VVrit of Rescous and Rauishment of a Ward as in Trespasse you shall hold like proceedings of Attach and Distresse and for want of Distresse three Capias and an Exigent The like in a Quare eiecit infra terminū Eiectione firme and this was giuen by a late statute And the like by the same Statute in a Writ of Annuitie and Couenant vppon an Indenture But in a Writ of Entry the like proceeding is not for the Processe is Grand Cape and Petit Cape The Grand Cape lieth when any of those VVrits are deliuered to the Sheriff to summō the Lands and if at the returne of the same the Defendant appeareth not but maketh default then the Prothonotaries Clerke is to giue a day to the tenant to come in or else a Grand Cape shal be awarded of the Land whereuppon he shall be in the courtesie of the Court whether they will grant him a Supersedeas for the discharge of the same or no. Otherwise hee is to wage his Law and depose that hee was not lawfully summoned which if he doe and it bee afterwards proued that hee was lawfully summoned then he is in danger of periury If the Tenant or Defendant doe not appeare vpon the Grand Cape then a Petit Cape is to goe forth and a day likewise to bee farther giuen and vppon default of appearance then the Lands in question are recouered and therevppon the Cape is directed to the Sheriffe to seize the Lands into the Kings hands vntill farther Proces c. Note that the Demandant is to take great care that there bee no Essoyne cast by the Tenants Attourney in this case for him the said Tenant to appeare For if hee haue before that time cast his Essyone then may he vpon day giuen call the Demandant non-suite and cause him to begin againe Therefore the Demandants Attourney in this case must especially inuigilate the Office of Essoynes and in Reall actions to get his VVrit fylled and to enter a Recipitur as in a VVrit of Dower Warrentia charta De droyte Surdisseisin haue the like proceeding because their Processe is also alike If you haue Iudgment in any action and suffer the Iudgment to continue without doing of any thing therein by the space of a yeare and a day you shall then be forced by reason of such delay before you may take out any execution thereuppon to sue out of the Court where your said iudgment is Recorded a writ of Scire facias and after the Returne thereof you are to giue a day to the Defendant to come into the Court and to shew cause why the Iudgment should not be awarded against him vpon his default wherevppon if good cause be not shewed the Iudgment is to bee allowed and execution may be taken forth In case where the Plaintiffe or Defendant happen to dye after Iudgment and before execution Then are the Executors or Administrators of the Plaintiffe to sue out a VVrit of Scire facias against the Defendant his Executors or Administrators which being returned then the Execution of Fieri facias at the first and in case where the Defendant is dead must bee awarded onely of the goods of the Testator or Defendant defunct and not of the goods of the Executor or Administrator This execution of Fieri facias being deliuered to the Sheriffe to bee executed if the Sheriffe shall finde that the Executor or Administrator did diuaste the goods of the Testator or Defendant defunct and shall thereupon returne a Divastauit Then shall a VVrit of Fieri facias be awarded de proprijs bonis Testatoris or Administratoris Or otherwise Execution may bee taken forth against the body of the Executor or Administrator at the choyce of him that sueth it out How to sue a matter of Errour IF you would sue a matter of Errour you must either make a perfect true Copy of the Originall or of the Exigent in that cause and carry it to the Cursitor of the Shiere where the Action lyeth thereby to make yovr VVrit of Errour VVhen you haue your Writ of Errour if it be before Iudgment you may deliuer it to the Clerke of the Treasurie wherevppon the Attourney for the Plaintiffe is to deliuer vnto you the number of the Roles where euery thing is entered And if it bee after Iudgment Then before you know the number of the Roles you must shew cause of Errour to the Court or else your Writ will not be allowed And in case that when the Writ bee alowed the Plaintiffes Attourney must deliuer the number of the Roles o the Clerke of the Treasury who will deliuer the VVrit ouer with the Record And then if the Defendants Attourney doe not get his Record to bee certified the same Terme the Plaintiffes Attourney may procure a day to bee giuen in
then to coÌ„municate them with the publike in a knowne way of dealing and a familiar language of commerce For aunswer whereunto I referre me to the preface in the frontispice hereof Desiring onely such as affect generall good to testifie their generous and ingenerate goodnesse in the assistance hereof Thus the Author prayes in ayde of your Common Pleas men especially and as duetie more bindeth him of that most worthy to be so most eminent a Prothonotarie among you Mr. Brownlowe with this Conclusion You that are Masters of this Science I aske your ayde and free suppliance Catâ—…ra turba tuas muscas venare ministro Fulminis hac valido propria praeaa Vale. THE KINGS BENCH THE Kings Bench consistes of the Prothonotary side and the Crowne Office side c. On the Prothonotaries side are as I deliuered in my Search of Record Onely Personall Actions and some mixt Actions besides such matters as the King is partie FOR their proceeding in personall and mixt Actions It is generally the like as that of the Common-pleas and therefore shall not require a second recitall So are their Fees generally alike For he that is a sufficient Common-pleas man is able to the practice of any other Court of Common Law whatsoeuer And therefore I shall onely shew you in what poynts of proceeding they doe differ and how easily those differences are or may bee reconciled withall The Kings Bench vseth onely a Latitat for their leading processe To this the first Leading Capias of the Common-pleas does answere For as the Capias hath an Originall Writ to goe before it So the Latitat supposeth and pretendeth a Bill of Middlesex to lead it also For that is granted in the Kings Bench because it is intended that the Defendant vpon returne of a Bill of Middlesex precedent doth Latitare in ualliua tua c. Onely the Latitat is like to Doctor Giffords water which serues for all diseases and so it holds one forme in all cases and Actions whatsoeuer and charges the defendant onely De pl. Trans bee it for debt or other cause c. But the Originall must containe the true cause of action and be so exactly set downe and drawn that all the following Processe and proceeding may be tyed to agree with it punctuatim The Kings Bench man payes fiue to the King in debt and the like actions aboue 40. l. So doth the Common-pleas man too But the Kings Bench man he payes but halle so much as the Common-pleas man doth and the Common pleas man is the better pay-maister too For hee payes at the first entrance into suite and vppon the Originall whereas the other payeth not till hee declareth which in many cases neuer is done at all In the Kings Bench the Plaintiffe hath longer time to declare then is allowed in the Common-pleas And where the defendant appeareth vppon ordinary Bayle whosoeuer will may come in and declare against him which is not vsed in the Common-pleas In the Kings Bench you shall not neede to put in special baile vnlesse it be for debt vpon Speciality So is it likewise in the Common-pleas But the Common-pleas enioynes speciall Bayle for 10. l. And the other not vnder 20. l. In the Kings Bench the Attourney for the defendant may mend or alter his Plea after it is deliuered ouer So may the Common-pleas man too But the Common-pleas man must doe it within the same Terme whereas the Kings Bench man hath a longer time For that hee is not tyed to enter by parcell and so soone as the Common-pleas man is but to doe it altogether and at much more leisure For the charge of remouing the body of any Prisoner by Habeas Corpus in the one or by Ostensum est in the other though there bee some difference in the first rise and here and there afterwards in the proceeding of the Remooue putting in Bayle and filing of it yet if wee conferre their Bills of Costs together in the conclusion we shall finde a very little difference in the whole Both pay dammage cleere that is poundage vpon euery twenty shillings in a Iudgment But the Kings Bench payes onely twelue pence in the pound and the other payeth two shillings There bee some other few differences in the formalitie but none in the substance of their mysteries And thus I leaue the Prothonotary side For the Crowne Office side It pleased some to make an especiall suite to exclude my pen from meddling in their mysterie in my former Worke. And therefore as I then sayd so I must now resolue that I doe aduisedly pretermit it and giue it backe to their owne care who are better able to performe this generall good at their pleasure when it shall please them to intend the publique And now I bend my iourney homeward and to my natiue Birth-bed London LONDON THEIR COVRTS OF COMMON LAW viz. First The Lord Mayors Court 2. The Sheriffes Courts THey doe all deale in Actions personall for the most part vnlesse on the Lord Mayors side sometimes a Reall Action falls in by chance for matter or demand of something lying within the Citie Their proceeding generally is ad exemplum of the Kings Bench onely differing in such cases as where their Customes carry their predomination The Defendant if he bee a Free-man hath foure defaults that is foure the next Court dayes of the place where the action lyeth to put in Bayle to the cause But the Forteyner hath no such priuiledge The Plaintiffe hath a day ouer to declare vnlesse it bee so that the Defendant is a Prisoner lying in Durance vppon the same suite For in such case the Plaintiffe must declare vppon the very next Court day following the Arrest And the Defendant is brought by Writ out of the prison to the Barre to pleade vnto the said Declaration There is one mayne difference betweene the Proceeding here and that aboue at VVestminster which is in the most familiar and ordinary action of the Citie viz. their Indebitatus assumpsit And that is that they deny wager of Law here vppon it which howsoeuer it bee countenanced and glossed by the Custome I am sure it takes away the Inheritance of a free-borne Subiect by the Law The like opinion I haue of an Attachment made of goods in proprijs minibus of the owner The proceeding heere generally in all cases where they lay by their Customes are to the president of the Common Law at VVestminster Onely they haue one helpe besides Errour and Erronicè emanauit after Verdict heere which is to marke the cause before my Lord Mayor where how farre that Superintendency may ouerrule I know not  l. s. d. The charge of the proceeding in the Sheriffes Courts in any ordinarie Action where the Iudgement is had by default is about 0 16 0 Where the Iudgement is had by Verdict of Iury about 1 6 8 For a Non suit in case where the Plaintiffe doth not declare about 0 8 0 For the Customes
Defendant ioine with him in Commission Fees inde vt supra And if the Plaintiffe doe Reply before such time as the Defendant is examined vpon Interrogatories hee loseth the benefit of examining the Defendant in that kinde And if the Plaintiff do not reply the next day after the dayes expired which are giuen to him in warning to make his Replication The Defendant may in such case and vpon such default of the Plaintiffe moue to haue the cause dismissed for want of effectuall prosecution  l. s. d. Fee for the Entry of the Order 0 3 0 For the Rest vt supra for Demurrer When the Plaintiffe hath serued the Writ ad Reiungendum vpon the Defendant And Affedauit bee thereof made Hee may take forth his Commission to examine Witnesses This Commission is to be directed vnto such Commissioners as the Plaintiffe and Defendant shall agree vpon  l. s. d. Fee for the Affedauit made for the seruing of the Writ ad Reiungendum 0 2 4 The Warrant 0 3 10 The Writ Com. 0 7 2 If the Defendant doe refuse to ioyne with the Plaintiffe in the Cōmission Then the Plaintiffe may sue out the Commission himselfe alone on his party and direct it vnto foure Iustices of the Peace and execute it at his pleasure Otherwise the Plaintiffe may if he will examine his Witnesses here in Court When the Writ ad Reiungendum is serued vpon the Defendant he need not to enter any appearence therevpon but onely to Reioyne to the Replication Fee inde vt supra And if the Defendant doe ioyne with the Plaintiffe in Commission Then the Defendant is to pay the one halfe of the Fee of the Commission Fee inde 0 vt supra 0 If the Plaintiffe doe delay the suing forth of any Commission to examine Witnesses Then the Defendant vpon Oath made that hee was serued to reioyne may himselfe alone take forth a Commission to examine on his party Fee inde vt supra Or otherwise the Defendant for such delay of the Plaintiffe may the next Terme following moue to haue the Cause dismissed When the Commission is executed and returned The Plaintiffe or Defendant may assigne and giue to each other a day to shew cause why Publication should not bee granted in this matter c.  l. s. d. Fee for Returne of the Commission 0 0 4 The Rule for Publication 0 1 0 After Assignement to Publication the daies so assigned be expired if nothing be said to the contrarie Then Publication may be entred  l. s. d. For the entry of Publication 0 1 0 Note that nothing stayeth Publication but it must be granted vpon Order Affedauit Certificate or Consent After Publication is so had and procured as aforesaid the Cause standeth then at the highest For vntill Hearing nothing more is to bee done here  l. s. d. For the entring of the Cause then into the common Booke of Hearing 0 1 0 Lastly you shall obserue that nothing altereth the aforesaid grounded rules of this most Honorable Court but only Order Affedauit Certificate or Consent Which procured vpon some extraordinarie accidents doe sometimes change the prescribed custome of proceeding and rule of the Court. The forme of proceeding Ore tenus in the Starre-Chamber followeth IF the Delinquent hath done or spoken any thing worthy the Hearing and Censure of this honourable Court And be questioned for the same And therevpon doth confesse the fact or words and subscribeth his hand to the same Confession made in writing before the Lord Chancellour or Lord Keeper or any the Lords Iudges or the Kings Counsaile And doth when he is called to this Barre to answere it likewise confesse the same to be true and acknowledgeth his hand subscribed to the confession made as aforesaid Then and in such case the Court vseth to proceede to Sentence and Censure in the matter It hath not bin seene formerly That any but the Lord Chancellor or Lord Keeper the Iudges or the Kings Counsaile haue taken any such Examinations or Confessions so subscribed vnder the Delinquents hand as aforesaid Neuerthelesse if any other who hath authoritie in this behalfe shall take any such Examination subscription And the partie so examined and subscribing shall at the Barre confesse the matter and acknowledge the hand The Court may proceede to Sentence and Censure therevpon For the life of his Examination is the Confession and acknowledgement thereof at the Barre when the Court doth examine him as the custome is whether that which is confessed in writing be true or not And if the Lord Chancellor or Lord Keeper the Iudges the Kings Counsaile or any other shall take any such Examination and Confession Yet if the partie at the Barre shall either deny his hand thereunto subscribed or the matter therein contained to be true Then the Court doth not vse to proceede to sentence or censure him So consequently the strength of the Examination seemeth not to stand in the partie who taketh it if hee be of authoritie but in the parties Re-examining the same at the Barre and the Recognization thereof And so I conclude the practice of the Court of Starre-Chamber THE EXCHEQVER THE Exchequer hath three seuerall places of proceeding according to the three differing maner of busines belonging vnto it on the pleading side viz. The Chequer Barre The Chequer Chamber The Court of Pleas. For the Exchequer Chamber It is the English Court or place where the proceedings are held by English Bill and Answere And the proceeding thereof is very much like to that of the Chancerie as is said before and therefore I meane not to insist any further vpon it For the Court of Pleas It is the very Imitatiue of the Courts of Common Law in the Hall and therefore I would bee loth to boyle the same meate twice ouer to your Trencher but reserue my selfe for the Chequer Barre especially and the Receipt side The Processe and Proceedings of the Chequer Barre are distributed betweene the two Remembrancers of this Court viz. the Kings Remembrancer and the Lord Treasurers Remembrancer And what doth properly appertaine to the one and what to the other I haue at large set downe in my Direction for Search of Record according to the finall Doome and Order of Sir Richard Lyster Lord chiefe Baron in the time of King Henry the eighth And by the view of the particular matters and businesses therein appropriated so respectiuely you may the better iudge of the proceeding to be held vpon them the rather for that euen here at the Barre side they doe in most things follow the practice of the common Law also Therefore I shall bend my selfe to set foorth the practice of those things which are not presidented in the other Common Lawe Courts at all beeing matters onely proper to this c. with that small difference which is betweene this Court and those of the Common Lawe belowe Staires in point of Appearance at the beginning of a
and the returne of a Cap. Alias Cap. and Plur. Cap. fol. eod And what space betweene the Teste and Returne of an Exigent fol. eod How the Proclamation and Exigent must agree in Teste and Returne fol. 98. What time an Exigent hath to be returned in the Countrey and what in the Citie fol. eod When the Defendant not appearing may be returned vtlawed fol. 98. How and when your Plur. Cap. must be fyled fol. eod When and how the Plaintiffe must make your Warrant of Attourney fol. eod Where it must be deliuered fol. eod When the Defendant is to put in his Warrant of Attourney fol. eod How vpon any the Capias's returned Cepi by the Sheriffe farther Processe shall bee stayd fol. eod What course the Plaintiffe shall take to compell the Sheriffe to bring in the Defendant where hee appeares not Cepi Corpus being returned fol. 99. How to proceed against the Sheriffe in case he be out of his Office before you can get him to bring in the Prisoner fol. eod How to continue the Apposen fol. eod What time betweene Teste and returne of Common Processe fol. eod How Processe may bee continued by the Plaintiffes Attourney diuers Termes fol. eod To what County the Proclamation must bee directed And when it must bee returned fol. 100. In what case there needs no returne of the Proclamation fol. eod How after the Defendants appearance a Iudgement may be had against him for not taking a Copie of the Declaration and making answere fol. eod How the Defendant may call the Plaintiffe Non-suit for not declaring in time fol. eod Where and how a Supersedeas vpon Maineprise must be sued out fol. eod What course the Plaintiffe may take against the Sheriffe for returning too small Issues vpon Distresse fol. 101. What shift the Plaintiffe hath if hee bee not ready to reply fol. eod How the Defendant may plead a new or stand to his old Plea at the day of Imparlance fol. eod How the Defendant may then bee condemned in the cause for not auowing his former Plea or giuing of a new one fol. 101. What care the Plaintiffe must haue to see the Issue be rightly entred And his Warrant put in then at the vtmost fol. eod When it is best for the Plaintiffe to put in his Warrant fol. eod How the proceeding may bee erroneous for want of a Warrant And the Plaintiffes Attourney bee fined grieuously for the same fol. 102. When the Plaintiffe may sue forth Venire facias And how long hee may continue his issue without suing it out fol. eod How by the Plaintiffes delay the Defendant may summon and sue forth Venire facias fol. eod How you may enter the first Venire facias returned And when the Nisi prius and Habeas Corpora are to be awarded fol. eod How to proceed to Execution after Tryall and Verdict fol. eod How to proceed when the Sheriffe returnes the Venire facias sued or serued fol. eod How in case the Iury fill not at the Assizes the Plaintiffe may get it to be filled vp fol. 103. How to get the Iury to bee filled at the Common pleas Barre in case they fill not there fol. eod The order of crauing of Tales at the Barre with the taking out entry of the same fol. eod What you are to doe in case the Sheriffe doe returne Tardè vpon any your Tales fol. eod When and how the Defendant may alter or mend his Plea heere after Replication fol. eod The difference betweene this Court and the Kings Bench in Entring of their Pleas. fol. 103. 104. What is to bee done where the Defendant is returned sufficient in an Action of Trespasse fol. eod What is to bee done where hee is returned Nihil fol. 104. What in case he is returned vtlawed fol. eod How you must sue any of the Nobilitie who are of the Parliament House and how to proceed against them fol. eod How the Plaintiffe may haue his remedy and satisfaction of the Sheriffe in case where hee arrest and deteines not the Defendant vpon Capias ad satisfaciendum fol. eod How he may choose whether hee will take such course against the Sheriffe for an escape or proceed against the Defendant to Vtlary after Iudgement fol. 104 105. How this kinde of Vtlary is pardonable and how not fol. 105. How vpon a iudgement the Plaintiffe may 〈◊〉 Wâ—…t to extend halfe the Lands Goods of the Defendant with exception of some certaine things c. And what heed you must take how you aduenture to sue forth that Writ fol. eod How after Iudgement the Plaintiffe may by Writ leuy it vpon all the goods of the Defendant which he can finde fol. eod How the Plaintiffe may sue out as many Writs of Fieri facias as hee will till hee bee satisfied fol. 105. How to proceed in Writ of Rescous and Ranishment of Ward fol. eod How in a Quare eiecit infra terminum and Eiectione firme fol. eod How in Writ of Annuitie and Couenant vpon an Indenture fol. 106. The proceeding vpon a Writ of Entry fol. eod Where and when the Grand Cape lyeth The manner of proâ—…uring and proceeding vpon it with the meanes â—…o auoide it fol. eod When the Petit Cape may goe forth with the proceeding therevpon to the recouerie of the Land in question and the seizure thereof fol. eod The care to be had to see that no Essoyne bee in the meane time cast for the Tenants appearance with the danger thereof to the Demandant fol. 106. 107. What the Demandant must doe to auoid such euils in all Reall Actions fol. eod What proceeding is vpon Warrantia charta Dedroite and Surdisseisin fol. 107. How you must set your Iudgement on foote againe in case you let it sleepe aboue a yeere and a day without doing of any thing vpon it fol. eod What course is to be taken that the Plaintiffe his Executors c. may proceed to execution against the Defendant his Executors c. in case where either of them dyeth after Iudgement and before Execution fol. eod 108. Vpon whose goods the Execution must bee first awarded the Defendant being dead fol. 108. How in case of Diuastauit returned vpon your Fieri facias you may get it to be awarded vpon the goods of the Executor c. or Arrest his body for your Debt fol. eod How to sue a matter of errour fol. eod The difference of proceeding in a matter of Errour before Iudgement and matter of Errour after Iudgement fol. 109. The preiudice of the Defendant in case hee doe not get his Record to be certified in time fol. eod The danger of losing one Writ of Errour fol. eod When the Errours are to be assigned fol. eod The course whereby you shall bee compelled to assigne Errours fol. eod The danger in not assigning of Errours in due time fol. 110. How to Reuerse Vtlary vpon meane Processe by Writ of Errour fol. eod What be the particular Errours
hand rough-hued drawe an adoration and reuerence amongst the people Good Alexander do not feare thy trading Peruse me not though thou deny thine ayding I aske but ayde of Patience and of Time To frame and finish this poore worke of mine To make to mend to perfect and to polish What Allexanders wisedome thinks so folish To the rest I rest As iealous of your loues as zealous of your liking THO. POVVELL THE ATTOVRNEYS ACADEMY The manner of proceeding in the CHANCERIE THE CHANCERIE NOtwithstanding the practice heere before this time hath bin That no Sub poena should be sued forth of the Court of Chancerie without a Bill of Complaint first exhibited Yet laterly for the ease of all Suitors and Subiects it hath beene thought good that euery man may haue a Sub poena out of the same Court without any Bill first exhibited This Sub poena is the leading processe of this Court by which the party Defendant against whom the Complaint is intended is summoned and required to appeare and make answere to the Complainant vnder a certaine paine and at a certaine day to come The dayes of Returne heere are the vsuall Returnes as in the ordinary Almanack Or else a Sub poena may bee returnable at a certaine day after any the sayd vsuall Returnes or the great Feast dayes from whence the Returnes take their denomination So that you must adde Prox. in place where cause shall require As if the Feast Day be to come Then it must be Prox. Futur in vnum mensem But if the Feast day bee past then it must be a die Paschae in vnum mensem prox futur And the like to other Returnes before or after other Feast dayes The Sub poena being by the Complaynant or some other by him appoynted serued and returnable in manner as aforesayd The Complainant hath lliberty to put in his Bill vntill the day following the fourth day after euery the sayd Returne if the Sub poena bee returnable vpon the certaine Returne day And you must account the Returne day and the fourth day after it for two of the sayd foure dayes And if the Bill bee not fyled on the next day after the sayd fourth day The Defendants Attourney hauing the Sub poena or Labell thereof wherewith the Defendant was serued Or an Oath that the Sub poena was serued hee may get fitting Costs in euery such case When the Defendant hath so got Costs he may haue a Sub poena whereby to commaund the Complaynant presently vppon the sight thereof to pay the defendant or the bringer therof the sayd costs as aforesayd And if the complaynant do refuse to pay the sayd costs accordingly Then the Defendant may vppon affidauit made that the Sub paena for costs was serued haue an Attachment directed to the Sheriffe of the county to attach the Complaynant therefore And vpon returne made by the Sheriffe that the Complaynant cannot bee found an Attachment with Proclamation may bee sued forth against the complaynant And that Proclamation beeing likewise returned by the Sheriffe as aforesayd Then a Commission of Rebellion may bee sued forth against the complaynant But on the contrarie side if the Complainant do put in his Bill And the Defendant appeareth not the next day after the costs day Then the Complainant vpon Oath made that the Defendant was serued with a Sub paena may haue an Attachment and farther Processe vpon like Returnes as in case aforesayd Where note that the party which maketh Oath that hee serued the Sub poena Or that the Sub poena was serued must sweare as followeth That he deliuered the Sub poena to the Defendant Or he shewed the Sub poena to the Defendant and deliuered to him a note of the day of his appearance Or hee left the Sub poena at the Defendants dwelling house where the Defendant most abideth Or hee shewed the Sub poena at the Defendants dwelling house to his Wife or some of his seruants and there left the Labell of the Sub poena or a note of the day of his appearance Or hee must sweare that he heard the Defendant confesse that he was serued with Sub poena And if the Defendant do appeare within the time limited Then the Complainants Attourney may giue vnto the Defendants Attourney on the said day after the Costs day a Rule that the Defendant do make answere to the Complaynants Bill by the same day seuen night then next to come This Rule and day giuen must bee entred into the Register And if the Defendant do not answere by the prefixed day so entered Or if hee doe not otherwise satisfie the Court by sufficient cause and occasion of the delay Then the Complainants Attourney may take forth an Attachment against the Defendant The Causes whereby the Defendant may satisfie the Court of his sayd delay in answere are these for the most part viz. HE cannot make direct answere without sight of his Euidences or VVritings which are in the Country Or hee cannot answere without conference had first with some person named in the sayd Bill Or with some person whom the matter toucheth Or that the Defendant is not able to trauell Of euery which reasons aforesayd Oath must be made ANd vpon Oath so made Or by an especiall motion made for this purpose The Defendants Attourney may procure a Dedimus potestatem directed to certayne commissioners in the countrey to take the defendants answere there And the cause whereupon this Dedimus potestatem is granted must be entred into the Register So likewise in case where the defendant doth not answere within the limited time and an Attachment is therefore awarded against him The Clerke which maketh the same Attachment must enter it into the Register shewing the cause wherefore it was granted But if no day bee giuen to the defendant to answere Then the defendant hath liberty to answere at any time during the Terme And if hee doe it not within that time Then an Attachment may bee sued foorth against him of course And the same with the cause thereof must bee entred into the Register viz. That the defendant appeared and departed without answere If the Sub paena bee returnable so neere vnto the end of the Terme that there cannot bee a day giuen to the defendant to answere hee must at his perill answere by the same day seuen-night following the day of his apparance although it bee in the Vocation For the Chancerie is alwayes open If the Sub paena bee Returnable on the last Returne day of the Terme it selfe Then the defendant is at Libertie to appeare the first returne of the Terme Following But if it be a day certaine although the same bee the last day but one of the Terme yet the Defendant must appeare and answere by that day seuen-night next Following the sayd Apparance If the Sub paena bee returnable immediately though it be serued on the last day of the Terme so it bee serued before
the rising of the Court The Defendant must also appeare and answere by the same day seuen-night And if the defendant make Oath that hee cannot answere without Writings c. or conference with some other person Or if hee haue a dedimus protestatem and Commssion to make his Answere Hee must at his perill procure his Answere to bee put in before the day after the first Costs day of the next Terme Following vnlesse it be Trinity Terme And then and in such case it must be put in the second day or else the complainants Attourney may vpon such default make an Attachment against the defendant and enter the same into the Register for that hee hath not Answered by the day prefixed Or in other case That he appeared and departed without Answere Or otherwise That he did not returne the dedimus potestatem at the day prefixed c. and as the case shall require And though the custome hath bin heretofore That by reason that the Defendant may abuse this liberty giuen to him as aforesayd in delaying the Complaynant by Demurrer in Law No such Demurrer should bee allowed yet is now permitted That the Defendant may by his Answere returned by Dedimus potestatem Demurre in Lawe For that hee not appearing in person at the first his Counsaile in his absence may not Demurre though the Complainants Bill bee insufficient Because euery Demurrer must bee deliuered into the Court by the Defendant in proper Person and not by his Attourney except in Cases where the defendant is not able to appeare in Person In which Cases it is vsed That the defendant may deliuer his Demurrer to the Commissioners Who though they bee by the expresse words of their Commission to receiue the defendants Answere vppon his Oath yet if the defendant deny to answere they are to certifie the same with the reasons by him alleadged wherefore hee will not answere vpon Oath leauing the same to the consideration of the Court And they are to take and returne such Answere as the defendant shall deliuer vnto them But where the Defendant hath before appeared and taken coppy of the Complaynants Bill and hauing had conference with his Counsayle therevpon is by him resolued that hee cannot make a direct Answere by reason of some matter in the sayd Bill layd to his charge which hee cannot cleare without fight of Euidences VVritings or Conference with some Person There is no reason that after â—…ime so giuen to the Defendant from the day of his Appearance vntill the beginning of the next Terme following he should be admitted to demurre to the Complaynants Bill For if there had beene any cause of Demurrer Hee might haue demurred at the day giuen him to Answere So that the Complaynant might haue had time to haue had the opinion of the Court whether the Demurrer were good or not So if the Defendant after such time so taken doe demurre in Lawe The Complaynant shall haue an Attachment of course as though no answere at all had beene put in The sayd Attachment is to be entred thus viz. For that the defendant hath not answered by the day to him giuen therefore an Attachment c. Vpon the returne of this Attachment hee may haue the like Proces as aforesayd And in case where there be more Defendants euery defendant shal be punished alike for his owne like offence Except in case where a Sub poena is granted against a man and his Wife In which case a man shall bee vnder punishment for his VViues Offence For if a man bee serued with a Sub poena in London against him and his Wife shee being in the Countrey yet if hee doe not satisfie the Court by some of the courses before mentioned as well for his Wife as for himselfe hee beeing here in person an Attachment shall be granted against him and his Wife as though he had neuer appeared which Attachment shall be entred For that A. B. VVife vnto C. D. hath not answered according to a day to them prefixed Therefore an Attachment is awarded against C. D. and A. B. his wife If the Complaynant dye his Heyre or Executor who hath the interest of the thing whereof hee complayneth may put in a Bill of Reuiuor against the Defendant his Heyre or Executor as the case shall require Also It is to bee remembred that if the Complaynant Exhibite his Bill against a Man and his VVife for matter which wholly concerneth the VVife VVhereunto they make Answere and after answere made the man dyeth The Complaynant cannot proceede in that suite against the VVoman without a Bill of Reuiuor because the woman shall not bee constrayned to stand to that Answere which shee together with her Husband or solely as Wife vnto the Man made to the Complaynant for that shee was then vnder Couerture And after her husbands death she being seized or possessed of the thing in Controuersie as in her former estate may if shee please make a new answere and shall neuer bee bound or concluded by the Answere which shee made in her Husbands life-time or that shee was then vnder Couerture And yet if shee so please shee may stand to that former answere of hers and proceed in that suite accordingly But if the Complainant exhibite a Bill against a feme sole whereunto she maketh answere and afterwards marrieth the Complainant may proceed against her Husband and her without any Bill of Reuiuor And her husband shall be bound by that answere which she made before marriage because shee shall not be admitted to take aduantage of her owne act VVhere on the contrary if a feme sole exhibite her Bill of Complaint wherevnto the Defendant answereth and afterwards she taketh an husband her husband and shee shall not proceede against the Defendant without a bill of reuiuor because her suite is abated by her owne act whereof the Defendant may take aduantage And if a Man and his Wife exhibite a bill of complaint whereunto the Defendant answereth and the man dyeth the woman shall bee at her choyce whether she wil exhibite a new bill or proceede vppon the Former And the Defendant shall be bound to his Answere made to the Man and his VVife Also if two seized of ioynt estate or two Executors of one Testament Or two Obligors or Obligees Exhibit a Bill of complaint wherevnto the defendant answereth and one of them dyeth The Suruiuor of them may proceed against the defendant without any Bill of Reuiuor And in all cases where a Bill of Reuiuor is requisit after the sayd Bill exhibited and a Sub paena serued on the Defendant to that purpose The Complainant shall be in the same case as he for his Predecessors was at the time when the cause of reuiuor accrewed vnlesse the Defendant shall appeare vppon the sayd sub paena and by way of answere shewe good cause to the contrary which cause must be That the Complaynant in the Bill of reuiuor is not Heyre or
Executor nor standeth in the like case nor hath the like interest or the like cause of complaint as before in the Former suite And no other cause is to be allowed If the Complaynant exhibit his Bill of complaint for Title of any Lands not of the yearely value of Forty shillings And the same be proued by Affidiuit or deposed the defendant shall be dismissed Also if the defendant demurre to any Bâ—…ll exhibited against him or disclayme The Complainant cannot reply For if the defendant be called vp by sub paena ad Reiungendum hauing before made no other answere but a Demurrer or a Disclaymer hee shall haue costs for vniust vexation But after the Defendant hath answered the complaynant hath liberty all that Terme to Reply at pleasure And if hee Reply not that Terme The Defendants attoturney may giue to the complaynants Attourney a seuen-nights day in the time of the next Tearme following to Reply which day beeing past and no Replication brought in On the day then next after it the Defendant may haue costs as in case of a Bill to bee recouered But if the complaynants Replication be put into the Court the defendant can haue no costs allowed vnto him But then the defendant may if he will Reioyne gratis to the Replication and enforce the complaynant to go to commission Or else he may haue commission to examine Witnesses on his owne part against the complaynant and shall haue the carriage thereof This commission shall bee directed to Foure such persons as the defendant shall name Or to any three or two of them without any warning to be giuen to the complaynant But if in this case the complaynant will hee may ioyn in commission and haue the carriage of it himselfe And then he must name two indifferent Commissioners and the Defendant must name the like which being agreed vppon The Complaynant must giue to the Defendant foureteene dayes warning of the day and place when and where the sayd commission shall bee executed This warning must be giuen either by himselfe in person Or else left in writing at the house or place where the Defendant doeth most reside The complaynant in all cases of commission to examine Witnesses shall haue the first choyce of commissioners and carriage of the commission and for his releife He shall examine Witnesses in all these cases following viz FIrst vppon a Bill by him preferred to examine Witnesses in perpetuall memorie of the matter to commaund the defendant either by himselfe or by his Attourney to appeare immediately And within Fourteene dayes to shew cause why the Complaynant should not examine Witnesses in perpetuall memory And if the defendant do thereuppon appeare by himselfe or his Attourney and shew good cause to the contrary such as the court shall allow then the complaynant shall not examine any Witnesses in perpetuam rei memoriam or perpetuall memory But if hee do shew no sufficient cause nor ioyne in commission with the complaynant then the complaynants Attourney must preferre sixe commissioners names to the Lord Keeper or the court c. Foure of the which or Foure such other as the Lord Keeper or the court shall appoynt shall be set downe for commissioners and a commission for the complaynant shal be made forth and directed to the sayd Foure commissioners or any three or two of them to examine Witnesses according to certaine Articles heeretofore set downe in Chancerie which witnesses are neuer to be published during their liues vnlesse Oath be made That the complaynent hath some triall wherein he should giue them in Euidence That the Witnesses are not able to trauell to the place where the tryall should be Or the party Defendant will consent therevnto Neither can they be giuen in Euidence against any other but against the party which was called to shew cause why the said Witnesses should not be examined or some other clayming vnder him by some interest which accrewed vnto them after the Bill preferred by the complainant for the examination of Witnesses It is also vsed that either party after the Bill is exhibited and Answere made thereunto may examine Witnesses in court here before one of the Examiners But the complaynant can haue no commission to examine his Witnesses vnlesse and before the Defendant bee serued with a Sub poena ad Reiungendum Which Sub Poena must bee serued in such manner as is before mentioned And then vppon Afidauit made of the seruing thereof the complaynant if the Defendant appeare not that Terme shall haue a commission directed to foure such commissioners as himselfe shall name or to any three or two of them for the examination of witnesses on his part against the defendant without any warning to be giuen to the defendant Vppon the returne of the sayd Sub paena ad reiungendum the complaynant may giue to the defendant a new Reioyne viz. the same day seuen-night By which time if the defendant do not reioyne he shall lose the benefit thereof And when that day so giuen to reioyne is past the complaynant may giue two ordinarie dayes viz. two Returnes for the defendant to produce his witnesses and then a Peremptorie day Before which day past if the defendant doe come in hee may haue a Commission to examine witnesses of course without any motion but hee shall lose the benefit of Reioynder And the Complaynant if hee please to ioyne in the Commission shall haue the carriage of it giuing to the Defendant foureteene dayes warning of the day and place when and where the sayd Commission shall be executed In the ioyning of this Commission The Complainant must first name one Commissioner vnto whom the Defendant may giue generall exception The Defendant must name the second The Complaynant the third And the Defendant the fourth The Common exceptions which bee giuen to Commissioners are these viz. THat the Commissioner named is of Kindred or Allyed to the party for whom he is named That hee is a Master to the party That he is a Land-lord vnto him Or a Partner vnto him Or haue suite in Law with the aduerse party to him by and for whom hee is named Or is of Counsayle an Attourney or a Follower of the cause of the one party Or one to whom the party is indebted Or any other apparant cause of partiality or siding with eyther party And it is commonly vsed that eyther party may giue exception to one and they seldome giue exception to any more then one on eyther party If the Complainant make default and procure not the Commission to bee executed Then the Defendants Attourney may renue the sayd Commission to the former Commissioners and the Defendant shal haue the carriage thereof Giuing to the complainant foureteene dayes warning of the day and place when and where it shall bee executed And yet neuerthelesse the complaynants Attourney may if the complainant will renue the sayd commission also and giue the like warning also vnto the Defendant Vpon the
execution of eyther of which Commissions and returne whereof eyther of them may giue to the other a day to shewe cause why Publication should not be granted The day so giuen is one weeke which being expired and no cause shewed to the contrary Then publication is granted and neyther partie can examine any Witnesses afterwards vnlesse it be by especiall order of the Court which is neuer granted without an Oath made that the party which requireth the same nor any of them hath seene or bin made priuy to any examination of any the VVitnesses formerly examined in this Court by eyther of the parties And some good cause be showne eyther by Oath or certificate of commissioners why the party could not get his sayd VVitnesses examined within the time limited for their examination In which case sometimes the Court giueth order to examine VVitnesses by a time prefixed at the parties perill with this Prouiso That the party shall not in the meane time see the sayd former examination And sometimes the Court giueth order that the sayd party shall examine his VVitnesses to informe the conscience of the Iudge onely and not otherwise These Depositions are neuer publisht but by especiall order or consent of the parties but deliuered to the Iudge sealed vp by the Officer vnder whose custody they do remayne to the end he may peruse them If any one be called by a Sub poena to appeare in this Court And vppon his appearance the complainant or any other doth arrest him in any other Court He shall haue a Super-sedeas to discharge the Action because he must haue free going and free comming But it is not so if the complaynant bee arrested except it be after issue is ioyned and a day is giuen for the matter to bee heard And the Complaynant comming to the Court with euidence to maintayne his cause is arrested The Court in this case shall defend him and set him free to follow his suite But this is seldome seene And hee that is Plaintiffe in the other Court may declare against him heere Praesentem in curia if hee please See 37. Eliz. If any one who hath Priuiledge in Chancerie be arrested into another Court in a ioynt-action with his VVife for matter concerning her Notwithstanding the Couerture shee shall not haue any benefit of priuiledge here See Powles case If one who is priuiledged in another Court as in the Kings Bench Common pleas or Exchequer do arrest one of this Court who is heere priuiledgd as a Clerke or otherwise The Priuiledge heere how soeuer it is in other cases sufficient to supersede the proceeding else-where yet in this case I haue neuer seene it to preuayle against the other priuiledge For amongst like priuiledged men most speede carries it away The Order made and ordained by Sir NICHOLAS BACON Knight Lord Keeper of the Great Seale touching the Examination of witnesses in perpetuam rei memoriam Dated the tenth of December in the third yeare of the late Qu. Eliz. followeth FIrst the Commissioners shall examine no Witnesses but such as bee aged and impotent Item the complaynant or party who sueth forth the commission shall giue warning by precept from the commissioners vnto the partie that should take preiudice by this examination by the space of fourteene dayes at the least of the time and place when and where the said commissioners will sit vpon this commission And the same warning beeing so giuen The commissioners are to bee satisfied by the Oath of the party complaynant or of some other credible person that warning is giuen accordingly before they shall proceed to the execution of their Commission Item If the party Aduersant or defendant can shew before the Commissiouers good cause of exception either against the Witnesses produced by the complaynant or any of them Or against the commissioners themselues Or otherwise then they shall cease and forbeare any farther execution of the commission And the commissioners shall certifie aud returne the sayd causes and execptions vp with the commission Item If the party aduersant cannot shew sufficicient cause as aforesaid then the commissioners shall proceed to the examination of Witnesses and the party Aduersant or Defendants shal haue liberty to ioyne in the examination of the same Witnesses or of any other likewise vpon Interrogatories on his behalfe if he thinke good Item The commissioners shall certifie in their returne of the commission such acceptations as the defendant shall take against the proceeding in the same commission and whether the defendant did appeare or no And if the Defendant did not appeare they are likewise to certifie and returne whether Affidauit were made of the giuing of warning by precept as aforesand or no Orders to bee obserued before the granting of Publication of the sayd Commission THe party who prayeth publication shall first by himselfe or some other make Oath that the depositious of the same witnesses are necessarily to be giuen in euidence on his behalfe Item Oath also must bee made that the same Witnesses be either dead or so aged or impotent as they cannot trauell to testifie viua voce without danger of life Item This Oath being so taken a Master of the Chancerie must first open the Commission and consider whether this Order before mentionâ—…d hath bin obserued in all poynts wherein he being satisfied publication is thereupon to bee granted Prouided alwayes that no Depositions shal be giuen in euidence but against those persons that were warned by precept as aforesayd or against their Heires or Assignes And prouided also That after examination had and taken as aforesayd And after Publication had and granted of the same examinations The party Aduersant or Defendant shall not bee admitted to haue any new examination on his behalfe concerning the same matter Item This Order is to bee obserued in case where the commission is ex parte quaerentis onely and it is to bee engrossed in Parchment and subscribed with the hand of the Register and to bee annexed to euery of the sayd commissions but not otherwise For if the Defendant ioyne then these Articles shall not need The difference vsed betweene a Ioynt-Commission in the aforesayd nature And a Commission exparte followeth THE Ioynt-Commission is made in forme as all other generall commissions to examine Witnesses Super Interrogator ministrand bee Adding to the end of the same these words viz. in perpetuam rei memoriam permansur The commission ex parte is to haue these rules inserted vnder the Registers hand and the commissioners names are specially to bee assigned by the Lord Keeper or Lord Chancellour for the time being Termino Michaelis Anno Regni Eliz. Reg. Sext. MEmorandum That all Iniunctions granted for preseruation of possession during the suite in the Court of Chancery shall haue this clause condition contayned in them viz. That the party who prayeth possession was in possession at the time of the Bill exhibited and certaine yeares before And that his intrest is not
purpose fol. 156. The charges of a Fine with License of Alienation fol. 157. 158. What the Fine for Alienation is fol. 157. What the Fine is in the Writ of Couenant fol. eod The charge of a Fine knowledged by speciall Dedimus Potestatem fol. 158. 159. The charge of a Fine knowledged before my Lord chiefe Iustice of this Court fol. 159. 160 The charge of knowledging a Fine at the Barre fol. 161. The Fines payable vpon diuers kinde of Writs fol. 161. 162. 163. The lymnes of the Kings Bench with the Actions handled there fol. 165. The Identitie of the forme of proceeding in the Kings Bench and Common-pleas as also of Fees fol. eod In what few points of proceeding they doe differ And how they may bee reconciled fol. 166. 167. The Coherence of the Latitat and the Capias fol. 166. Their small difference in Fine fol. eod THE KINGS BENCH AND LONDON THeir difference in Libertie of time to declare c. inde fol. 167. Their difference in Requisition of Speciall Bayle fol. eod Their difference of libertie to amend a Plea fol. eod Their little difference in the whole charge of Remouing a body by Writ fol. 167. 168. Their difference in paying of Dammage cleere vpon a Iudgement fol. 168. What bee the Common Law Courts of London fol. 169. What Actions they deale in fol. eod The small difference betweene them and the Kings Bench for proceeding fol. eod What time the Free-man hath to appeare In suo loco by mistake it is To put in Bayle pro To appeare fol. eod What time the Plaintiffe hath to declare fol. 170. The difference betweene the Courts of London and those of Westminster in their Indebitatis assumpsit fol. eod Their vsuall and extraordinarie helpe heere after Verdict fol. eod The Charge of proceeding to a Iudgement by default of Verdict fol. 171. Charge of Non suit here fol. eod Where you shall reade the Customes of the Citie which if they will let you I would farther request your opinion how agreeable it is to the Law viz. That the Obligee shall arrest the body of the Obligor vpon that Obligation which is not yet in force according to the prefixion of the day conditioned for payment fol. eod How all other Courts of Record are generally led for formalitie of practice fol. 172. THE STARRE-CHAMBER OF the Starre-Chamber practice fol. 173. What is their Leading Processe fol. eod What time the Defendant hath to appeare fol. eod Fees of his Appearance fol. eod Danger of not appearing in time fol. 174. Fees for procuring the Attachment against the Defendant in such case fol. eod When the Defendant must appeare if the Writ be returnable vpon a day certaine fol. eod What the Defendant must doe if hee bee brought in vpon the Attachment fol. eod How the Defendant may appeare gratis without Processe fol. 174. What Processe may be had against the Defendant vpon losing of the first fol. 175. Fees inde fol. eod What Processe may be against the Defendant the Sheriffe returning Non est inuentus vpon the Attachment fol. eod Fees inde fol. eod What course the Plaintiffe may take against the Defendant appearing vpon Attach cum feod inde fol. eod The danger if the Defendant appearing vpon Attach doe depart without answering the Contempt fol. 176. What the Plaintiffe must doe before he haue Warrant for Processe heere fol. eod What time the Plaintiffe hath to perfect his Bill put in pro forma at the first fol. eod How the Defendant may get the Plaintiffe to be dismissed for want of a Bill fol. eod Fees of Costs giuen inde fol. eod What course the Defendant hath to recouer those Costs giuen vpon the dismission of the Plaintiffe fol. eod 177. What time the Defendant hath to put in his Answere fol. 177. How the Defendant may answere by Commission fol. eod Fees inde fol. eod From whom and how the Commission must be obtained fol. eod 178. How the Commission must bee returned fol. eod The Defendants danger in not answering in this case fol. eod How the Plaintiffe may ioyne with the Defendant in the Dedimus to answere and minister Interrogatories fol. 179. How the charge shall be then borne fol. eod The Plaintiffes time to put in Interrogatories fol. eod The danger if the Defendant depart out of Towne before he bee examined vpon Interrogatories fol. eod How the Defendant may depart no Interrogatories being put in in time fol. 180. What is to bee done when the Defendant hath demurred fol. eod 181. The danger of the Defendant if his Demurrer be certified for Insufficient fol. eod What course the Plaintiffe is to take against the Defendant vpon Certificate of such Insufficiencie fol. eod In what case the Defendants Demurrer may be accepted in the Countrey fol. 182. What course to be taken where the Defendant demurres to one part of the Bill and answeres to another fol. eod How it is with the Plaintiffe when the Defendants Demurrer is found to bee sufficient fol. eod 183. How the Demurrer may dye fol. eod What course is held where the Sufficiencie of an Answere made to Interrogatories is referred to Committees fol. eod When the Plaintiffe may reply and make the Defendant Reioyne fol. eod 184. Where no Replication shall neede at all fol. eod When the Plaintiffe may make the Defendant to ioyne in Commission fol. eod How the Plaintiffe may lose the benefit of examining the Defendant vpon Interrogatories fol. eod The danger if the Plaintiffe doe not reply in time fol. eod When the Plaintiffe may take forth Commission to examine Witnesses fol. 185. In what case the Plaintiffe may sue out Commission alone to examine fol. 185. How the Defendant shall Reioyne fol. eod How the charge shall bee borne when both parties ioyne fol. eod How the Defendant may sue out Commission alone to examine fol. 186. What course the Defendant may take in case the Plaintiffe doe delay the examination of Witnesses fol. eod When day may bee giuen for Publication fol. eod When Publication may be had fol. eod What may stay Publication fol. eod 187. When the cause standeth at the highest heere fol. eod How constant and immutable the grounded Rules of this Court be fol. eod The forme of proceeding Ore tenus in this most Honourable Court fol. 188. 189. THE EXCHEQVER THE Exchequer proceeding fol. 190. The seuerall places of proceeding in the Exchequer fol eod The Exchequer Chamber proceeding fol. eod The Court of Pleas proceeding fol. eod How the proceedings of the Exchequer Barre are distributed fol. 191. The order of appearance here fol. 192. The Charge of appearance in the Exchequer fol. eod 193. The Charge of an enrolement in the Exchequer fol. eod The Charge of the Sheriffes account in the Exchequer fol. 194. 195 196. The Ordinarie charge for passing of an Account fol. 196. 197. Fees belonging to the Sheriffe in his Office
determined by forfeture surrender or other lawfull meanes And Bond must bee put in by the party who prayeth the possession of the penalty of tenne pound with condition that this Information aforesayd is true Item that all Iniunctions granted for the stay of Suites at the common Law shall haue this clause and conditon contained in them viz. That the same Suite desired to bee stayd is for and concerning the same matter depending in this Court and as we begunne at the common Law after the Bill exhibited into this Court and that Bond be put in as aforesayd Item That no speeiall Certiorare doe passe without Bond first giuen on the behalfe of the party who desireth the same with condition That the Bill exhibited containeth matter sufficient to beare a Certiorare And that hee shall proue the contents of his Bill to be true within fifeteene dayes after the returne of the Writ according to the Order and course of this Court And that vppon the granting of euery Procedendo the Bond aforesayd be remembred to the Lord Keeper Termino Trinitatis Anno Regni Eliz. Reg. Septimo IT is ordered that all Suites for no more then sixe acres of Land or lesse except the same bee worth forty shillings by the yeare And all Suites for matter vnder the value of tenne pounds shall be dismissed this Court for such cause onely proued And this Court shall not retaine any such But the party who bringeth the same hither shall pay costs to the defendant as this court shall award Termino Michaelis Anno Regno Eliz. Reg Septimo IT is Ordered that all Processe to heare Iudgment bee returnable sixe or seauen dayes before the day of Hearing and not aboue sauing in the beginning of the Terme when the time will not permit so long warning And the said Writs must bee endorsed on the backside with the very day appoynted for the hearing of Iudgment And soe much for that Terme By the generall custome and ancient vsage of this Court all Bills shall be retayneable here in case where the Equity of the cause requireth and beareth it And wherein the Common Law doth affoord no releife but rather pressure and rigiour After Publication once had the Complainant may procure a day of Hearing of course by such an one of the sixe Clerks as dealeth for him And he may at the end of the Terme when the Lord Keeper setteth downe the dayes of Hearings procure his hearing to bee set downe amongst those assigned for the next succeding Terme This was wont to bee the ancient course of procuring of Hearings howsoeuer it was lately dis-vsed And as I take it the same is now restored againe to the good contentment of all Suitors in this Court The Order of Proceeding against such as refuse to obay his Majesties Iniunctions proceeding and issuing out of the Court of Chancerie FOr the breach of an Iniunction there bee commonly three punishments viz One that the Contemptor shall not bee in all the principall cause till hee haue fulfilled the Iniunction in euery poynt Another that hee shall not bee committed to Ward in the meane time And there continue till he doe conforme himselfe and become obedient to the Iniunction The third that hee shall fine to the King for his Contempt as the Lord Keeper or Lord Chancellour for the time being shall please to award And the Lord Keeper or Lord Chancellour may depense heerein as they shall finde cause and reason Item If the Contemptor do not appeare vppon sight of the Iniunction or not obey the same but doth commit some Act in contempt or neglect thereof Then vpon an Affidauit made of the seruing of the sayd Iniunction There shall bee awarded an Attachment against the sayd Contemptor c. as in the case of Proces before mentioned and declared Item If the Contemptor doe appeare and hath not fulfilled and performed the Iniunction and yet at his comming doth offer to fulfill it alleaging that hee cannot do it here conueniently Then the Lord Keeper or Lord Chancellor vseth to appoint him a certaine day within which hee must doe it And so vppon Bond taken of him with Sureties who are to vndertake in case his owne security be not held sufficient that hee shall performe the Iniunction within the time giuen or at the day to render his body to prison there to remayne till he hath fulfilled the same Hee may be licensed to depart What I haue hitherto set downe is desumed and collected out of the ancient Forme of practice and Orders of this Court of Chancery I shall now deliuer the orders and practice of latter times most of which are agreeable with the former some are de nour ordayned and all are subiect to addition or alteration as the Court shall thinke fitting and done Salua Prerogatiua Curiae The Moderne Orders and Ordinances of Chancery follow Affedauits NO Affedauit shall be admitted or taken which shall tend to the proofe or disproofe of the Title or matter in question or touching the merits of the cause Neyther shall any such matter bee colourably inserted in any Affedauit to bee made touching the Seruing of Proces No Affedauit shall bee taken against Affedauit so farre as the Master of Chancerie can discerne or take knowledge c. If any such bee taken The latter shall not bee vsed or read in Court Contempts IN case of Contempts granted vppon force or ill words vsed vpon seruing of Proces Or other words of Scandall proued by Affedauit the party is forthwith to stand committed But for other Contempts against the Orders or Decrees of the Court First an Attachment goes foorth vpon Affedauit made Then the party is to be examined vppon Interrogatories and His examination is to bee referred And if vpon examination hee confesse matter of Contempt he is to bee committed If hee confesse it not The Aduerse party may examine VVitnesses to proue the Contempt And if the Contempt appeare vppon proofe the contemptor is to bee committed therefore But if the Aduerse party fayle to prooue the sayd Contempt Or fayle to put in his Interrogatories or other prosecution Then the partie charged with the Contempt is to bee discharged with good costs They that are in Contempt especially so farre as Proclamation of Rebellion are not to bee heard neyther in that suite nor in any other except the Court of speciall grace suspend the Contempt Imprisonment vppon Contempts for matters past may be discharged of grace after sufficient punishment Or it may be otherwise dispensed withall in such case But if the Imprisonment bee for performance of any order of the Court in force Then the Contemplator ought not to be discharged except hee first obey Only the Contempt may bee suspended for a time Petitions NO Iniunctions Sequestration Dismissions Retainer vppon Dismissions or Finall Orders shall bee granted vpon Petitions No former Order made in Court is to bee altered crossed or explayned vppon any Petition But such Orders may be
reuersed altered or explained being once vnder the Great seale but vpon Bill of Reuiewe and no bill of Reuiewe shall be admitted except it be vpon error in Law appearing in the body of the Decree without farther examination of matters in Fact or he shal shew some new matter which hath risen in time after the Decree and not any new proofe which might haue bin vsed when the Decree was made Neuerthelesse vpon new proofe which is come to light since and after the Decree made could not possibly haue bin vsed at the time when the Decree passed a Bill of Reuiew may be granted by the speciall Licenee of the Court and not otherwise In case of mis-casting being a matter Demonstratiue a Decree may be explained and reconciled by an order without Bill of Reuiewe Where note that by the word Mis-casting is not intended any pretended Mis-casting or mis-valuing but onely errour in the Auditing or numbring No Bill of Reuiewe shall be admitted or any other new Bill to change matter decreed except the Decree bee first obtained and performed And if it bee for Land that the possession be yeelded If it be for money that the money be paid If it be for euidence that the euidence be brought in and so in other cases which stand vpon the strength of the Decree alone But if any act bee desired to be done which extinguisheth the parties right at the Common Law as making of Assurance or Release Acknowledging of satisfaction Cancelling of Records or Euidence and the like Those parts of the Decree are to bee spared vntill the Bill of Reuiewe bee determined But such sparing is to be warranted by publique Order made in Court No Decree shall be made vpon pretence of equitie against the expresse prouision of an Act of Parliament Neuerthelesse if the construction of such act of Parliament hath for a time gon one way in generall opinion and reputation and after by a latter iudgment hath beene controled Then Releife may be giuen vpon matter of equity for cases arising before the sayd Iudgment because the subiect was in no default Imprisonment for breach of a Decree is in nature of an Execution and therefore the custodie ought to bee straight and the party not to haue any liberty to go abroad but by speciall license of the Lord Keeper or Lord Chancellour being But no close imprisonment is to bee but by expresse order for willfull and extraordinary Contempts and disobedience as hath beene vsed In case of obstinate disobedience in the breach of a Decree an Iniunction is to be granted Sub poena of a summe and vppon Affedauit or other sufficient proofe of persisting in contempt Fines are to bee pronounced by the Lord Keeper or Lord Chancellour in open court and the same are to bee estrated downe into the Hannaper by speciall order In case of a Decree made for the possession of Land a Writ of Execution goeth forth and if that bee disobeyed Then Processe of Contempt according to the course of the Court is to goe forth against the person vnto the commission of Rebellion and then a Sergeant at Armes by speciall Warrant and in case the Sergeant at Armes cannot finde him Or he bee resisted Or if he vppon his commitment do persist in his disobedience an Iniunction is to be granted for the possession and in case that it also bee disobeyed Then a commission is to bee made to the Sheriffe to put his aduersary into possession Where the party is committed for breach of a Decree Hee is not to be enlarged vntill the Decree bee fully performed in all things which are to bee done presently But if there be other parts of the Decree to bee performed at dayes or times to come Then hee may bee enlarged by order of the Court entring into Recognizance with Sureties for the performance de futuro but not otherwise Where causes come to hearing in Court No Decree bindeth any person who was not serued with Proces ad audiendum Iudicium according to the course of the court Or did appeare gratis in the Court. No Decree bindeth any one that commeth in bona fide by Conveyance from the Defendant before the Bill exhibited And is made no party eyther by Bill or by Order But where hee comes in Pendente lite and while the Suite is in full prosecution and without any colour of allowance or priuity of the Court There regularly the decree bindeth But if there were any intermission of suite Or the court were made acquaynted with the conueyance The Court is to giue order vppon the speciall matter according to Iustice. VVhere a Decree is made for a Rent to bee payd out of Land Or a summe of money to bee leuied vppon the profits of Land There a Sequestration of the same Land beeing in the Defendants hands may bee granted vppon the Decree Where the Decree of the Prouinciall counsailes Or the Court of Requests or the like are by contumacy or other meanes interrupted There the Court of Chancery vppon a bill preferred for corroboration of the Decrees of that Iurisdiction shall giue remedy Where any cause comes to Hearing heere which hath beene formerly Decreed in any other of the Kings Courts of Iustice at Westminster Such Decree shall be first read and then this court shall proceede to heare the rest of the euidences on both sides Decrees vppon Suites brought after Iudgement shall containe no words to make voyde or weaken the Iudgement But shall onely correct the corrupt conscience of the Party And rule him to make Restitution of to performe other acts according to the equity of the cause Bill of Reuiewe DEcrees are not to bee reuersed altered or explayned beeing once vnder the Great Seale but vppon Bil of Reuiewe Bill of Reuiewe shall not bee admitted except the Decree bee first obeyed and performed No Bill of Reuiewe shall bee put in except the party that preferres it enter into Renognizance with Sureties for the satisfying of Costs and Damages for the delay if it bee â—…ound against him Reference Report NO Reference vppon a Demurrer or question touching the Iurisdiction of this Court shall bee made to the Maisters of the Chanceâ—…y But such Demurrer shall be heard and ruled in the Court or by the Lord Keeper or Lord Chancellor himselfe For the confirming or ratifying of any Report No Order shall bee made without day to bee giuen by the space of a Seuen-night at least to speake vnto it in Court No Reference shall bee made to any Maister of the Court or any other Commissioner or Commissioners to heare and determine where the cause is gone so farre as to examination of Witnesses Except it bee in especiall cases of Parties neere in blood or of extreame pouerty Or by consent And generally References of the state of the cause are to bee sparingly granted except it bee by consent of the parties No Report shall bee respected in Court which exceedeth the Warrant of the Order of
reference which leadeth it The Maisters of the Court are required that by Report they doe not certifie the estate of the cause as if they would make Breuiates of the Euidence on both sides which doth little ease the Court But that they doe it with some opinion Or otherwise in case they thinke it too doubtfull to giue opinion therein And thereuppon they are to make such speciall Certificate and the cause is to goe on to a Iudiciall hearing without respect had to the same If both parties consent to a Reference for the examination of Accompts to make the Cause more ready for hearing it may bee granted But generally matters of Accompt excepting in very weighty Causes are not fit for the Court but are to bee prepared by Reference with this prouision neuerthelesse That the Causes come first to a Hearing and vppon the entrance into a Hearing they may receiue some direction and bee turned ouer to bee considered and prepared The like course of Reference is to bee taken for the examination of Court Rolles vppon any Customes and the Copies shall not bee referred to any one Master but to two Masters at the least No Reference shall be made of the Insufficiency of any Answere without shewing of some particular points of the defects thereof And not vppon surmize of the Insufficiency generally Where a Trust is confessed by the Defendants answere there needeth no farther hearing of the cause but a Reference presently to be made of the Accompts and so they are to go on to the hearing of the accompts Dismission WHere causes are dismist vpon full Hearing and the Dismission signed by the Lord Keeper or Lord Chancelour such causes shall not be retained againe neither shall any new Bill be admitted except it be vppon new matter like vnto the case of the Bill of Reuiewe In case of all other Dismissions which are not vppon Hearing of the Cause If any new Bill bee brought the Dismission is to be pleaded and after Reference and Report of the Conents of both Suites and consideration taken of the cause or causes of the former Dismission The Court shall rule and order the Retyning or Dismission of the new Bill according to Iustice and the nature of the case All suites grounded vpon VVills Nuncupatiue Leases paroll Or vppon Long Leases that tend to the defeating of the Kings Tenures Or for the establishing of the Perpetuities Or granted vppon Remainder ouer vnto the Crowne to defeate purchasers Or for Brocage or Rewards to make mariages Or for bargaine at play oâ—… VVagers for bargaines for Offices contrary to the Statute of the Second of Edward the sixt Or vppon contracts for Vsuâ—…ie or Symony are Regularly to be dismissed vpon motion if they bee the whole matter of the Bill and there be no speciall circumstances to moue the Court to allow them a proceeding And all Suites vnder the value of ten pouuds are regularly to be dismissed Dismissions are properly to be payed and had either vppon hearing or vpon Plea vnto the Bill when the cause comes first into the Court. But Dismissions are not to bee prayed after the parties haue bin at charge of examination of witnesses except it be vpon speciall cause If the Complainant discontinue prosecution after all the Defendants haue answered aboue the space of one whole Terme the cause is to be dismissed of course without motion But after Replication is put in the cause is to bee dismissed without motion and order of the Court. For double vexation the cause may bee dismissed Where causes are remoued by speciall Certiorare vppon a Bill containing matter of equitie The Complaynant is vppon receipt of his writ to put in Bond to proue his suggestions within foureteene daies after the receipt which if he do not proue then vpon certificate from either of the Examiners presented to the Lord Keeper or Lord Chancellor the cause shal be dismist with costs and a Procedendo shall be granted Demurrer DEmurrers and Pleas which tend to the discharging of any Suite shall bee heard first vpon euery day of Orders that the Subiect may know whether he shall need to giue further attendance or no. A Demurrer is properly vpon matter defectiue contained in the Bill it selfe or forraigne matter But a Plea is of forraigne matter to discharge or stay the Suite as That the cause hath bin formerly dismist That the Complainant is vtlawed That the Complainant is excommunicate That there is another Bill depending for the same cause Or the like And such Plea may bee put in without Oath in case where the matter of Plea appeares vppon Record but if it bee any thing which doth not appeare vpon Record then the Plea must be put in vpon Oath No Vtlary shall be allowed without pleading the Record sub pede Sigilli Nor Plea of Excommunication without the Seale of the Ordinary Where any suite appeareth vppon the Bill to bee of the nature of any of those which are Regularly to be dismissed according to the Order before mentioned the said Order is to be set forth by way of Demurrer Answere WHere an Answere shall be certified to be insufficient The Defendant is to pay costs And if a second Answere be returned insufficient in the poynts before certified for insufficient then he shall pay double costs And vpon the third like case treble costs And vpon the fourth quadruple costs and then to be committed also till he shall haue made a perfect and sufficient answere and he shall be examined vpon Interrogatories touching the poynts defectiue in his answere But if any answere be certified to bee sufficient then the Complainant is to pay costs No insufficiencie of answere can bee taken hold of after Replication put in because it is admitted for sufficient by the Replication An answere to a matter charged as the Defendants owne fact must bee direct without saying that It is to his remembrance or as hee beleeueth If it bee layd downe to bee done within seauen yeares before And if the Defendant do deny the Fact Then he must trauerse it directly and not by way of Negatiue pregnant As if a fact be layd to be done with diuers circumstances The Defendant may not Trauâ—…rse it literally as it is layd in the Bill But he must Traueâ—…se the poynt of substance So as if hee bee charged with the receipt of an hundred pounds He must Trauerse that he hath not receiued an hundred pounds or any part thereof And if he haue receiued any part of it he must set downe what part hee hath receiued If a Hearing bee payed vpon Bill and answere The answere must bee admitted to bee true in all points And a Decree ought not to be made but vppon hearing of the answere read in Court Where no Counsaile appeares for the Defendant at the Hearing and the Processe appeares to haue beene serued the Answere of such Defendant is to be read in Court No new matter is to bee contayned in any Replication except it
Court vnto him to do it and to remooue the same By which day if the Defendant doth it not accordingly then hath hee lost the benifit of the Errour And after one VVrit of Errour so put by the Defendant shall neuer haue any more And if the Record bee accordingly certified then the next Terme following you are to assigne the Errours there Otherwise there will goe forth two VVrits of Scire fac to be deliuered to the Sheriffe of Midd. and to giue you warning to assigne the Errours which if you doe not within three or foure dayes after the Returne of the latter of the sayd two Writs the Writ of Errour will bee quasht and you shall lose the benefit thereof And if one be vtlawed vpon meane Processe and would reuerse the same by writ of Errour hee must take this course viz. Looke if there be any Writ vnreturned Or any VVrit mis-returned Or any VVrit vnfyled Whether the Proclamation bee fyled or no And whether it bee well returned Or whether a Warrant of Attourney be put in or no All these before mentioned be Errours which before Iudgement the Court will correct themselues And if you finde any of the said Errours you must goe to the Clerke and shewe him the number Role where the Exigent is entred and cause him to enter the Vtlary This being done you are then to get the Bundles where any such writ is fyled to bee brought into the Court from the Office of Custos breuium where they be kept Then you must haue one to enforme the Court therefore on your behalfe If the Errour which you pretend bee for want of a Proclamation then you are to get aswell the Record of the Terme where the Exigent is entred as the bundle of VVrits to bee brought into the Court to be reviewed And the like you are to do of the meane Processe And if it shall appeare to the Court That any of the Processe bee fyled and not returned Or there be error in the Returne Or there bee want of meane Processe or Proclamation the Court will award the the Reuerser to bee entred And if the party vtlawed can finde no Error and yet would vndoe the vtlarie if it bee vtlary before a Iudgement He is to sue out his writ of Errour and therevpon a Supersedeas Then hee must sue out his pardon of Course and vppon that Hee may haue a Scire facias directed to the Sheriffe of the County where the Originall was laid to giue warning to the plaintife to bee ready in Court to prosecute his action against the Defendant if hee haue any thing to charge him withall Hereupon if the plaintiffe doe not declare against him the Defendant within a certaine space giuen to him by the Court Then the Defendant shall bee quit of that action and the plaintiffe is to beginne his suite againe if hee will But if the partie vtlawed haue any goods or Cattle taken by colour of that Vtlary Then hee is to sue out a writ de non molestand from the Clerke of the Treasury which writ hee is to deliuer to the Sheriffe VVhereuppon the Sheriffe is to deliuer to him his goods or Cattell againe without Bond. But it is otherwise where the Defendant doth not bring his Writ de non molestand but intends to ouerthrow all by Errour for in that case hee shall bee driuen to enter into Bond for the proouing of the Errour In euery case where the cause goeth with the Plaintiffe vpon a Demurrer and the Debt or matter recouered is not expressed the Iudges of the Court may giue their finall Iudgment and grant you a Writ to enquire of dammages which writ shall bee directed and deliuered to the Sheriffe who by vertue thereof is to impannell a Iurie who after they be sworne vpon Euidence to be produced on the Plaintiffes part may giue in dammages so much as they thinke in their consciences and as the VVitnesses shall prooue vpon their Oath that he hath sustained Also in an Action of waste you are to proceede in like sort if you certefie the Iudges how the Defendant hath made the place waste and you doe it before Iudgment is by them giuen But the Iury needeth not to haue such great care of the dammages in waste committed as in other cases of enquirie in that kind For whatsoeuer the Iurie giues in dammages therein the Court will according to the Statute in that case especially prouided double the same dammages The Plaintiffes Attourney must be carefull to looke to the Clerke of the Essoynes and take heede where the Essoynes do lye and whether they be lawfully cast or no. And not onely so but the Attourney for the Plaintiffe or Demādant must farther looke to the Adiournying of the Essoynes the casting of the Nerecipiatur for the aduantage of his Client And the Attourney for the Defendant should also be as watchfull ouer the Casting of the Essoynes For that oftentimes it proues to bee a benefit to himselfe and a commodity to his Clyent Euery Essoyne must bee adiourned in time with such sufficient continuance as the nature of the Action requireth For want of Adiournement of the Essoyne there lyeth a Non-suite The casting of an Essoyne where it will not lye may be disalowed quashed and turned into a default But when it is rightly cast then it is allowed and then it is to be adiourned And you must farther take heede where the inferiour Tenant may pray in ayde of the Superiour Lord and when and in what case a Vowcher lyeth to recouer by force If Bastardy bee alleadged in generall in any case the Processe for the tryall of it is to be directed to the Bishoppe who is to certifie the same The like course is to bee held in Pleas of Aduowson whether plenaritie or not plenaritie to be so tryed and so certified likewise VVhat Pleas Attournies may plead and what not TO a Bond for pa◅ment of mony 1. Conditions performed 2. Per minas 3. Per Dures 4 Non est fact Gen. Speci To the Bill of Debt plead Per Minas Per Dures imprison Deins age Non est fact Generall Speciall To any other Actions of Debt plead Nihil debet per patriam Nil debet per Legem Deins age so it be not for Apparell To a Bond for deli uery of Corne c. plead Per Dures Per minas Non est factum Deins age Conditions performed The Common issues to Declarations grounded vpon Simple actions be Per legem or Per Patr◅am To a Bond for performance of Couenants vpon an Indenture or an Arbitrin◅ent may bee pleaded Per minas Per dures Non est fact or At large To an Action of Trespasse you may plead Non Cul. or At large if it bee not vpon trial of a Title To an Action of Battery plead Ex insultu querentis or Non Cul. To an Action for Rent plead Rien in arrere To an Action of the Case vpō Assumpsit plead Non Assumpsit
that in case it shall bee proued that hee absented himselfe in fauour of the aduerse party hee may bee fore-iudged his practice and receiue some other fitting and exemplary punishment in that behalfe FINIS Foelix quem nulla Cyconia pinsit T. P. A TABLE OF THE CONTENTS HANDLED IN THIS succeeding TRACTATE And first in the Chancerie HOw the Sub Poena of later times was thought fit to be granted without exhioiting of any Bill for the purpose fol. 1. The vse of the Sub Poena fol. 2. The manner of Returnes here fol. 2. What time the Complainant hath to put in his Bill fol. 2. How the Defendant may haue costs against the Complainant for not putting in his Bill in due time fol. 2. 3. How the Defendant may recouer the said costs against the Complainant fol. 3. How the Defendant may in the said case sue the Complainant to the Commission of Rebellion fol. 3. How the Complainant may haue costs against the Defendant for not appearing fol. 3. How the Complainant may recouer those costs against the Defendant fol. 3. 4. How the Oath must bee made for the seruing of a Sub Poena fol. 4. How the Complainant may make the Defendant to answere to his Bill the appearance being made fol. eod What course the Complainant may take against the Defendant for not answering within the time prefixed fol. 5. The causes whereby the Defendant may satisfie the Court of his delay in answering fol. eod How the Defendants Attourney may procure a Dedimus Potestatem to take his Clyents Answere in the Countrey fol. 5. 6. How the Attachment made against the Defendant for not answering must be entred fol. 6. What libertie the Defendant hath to answere where no day is giuen to him for that purpose fol. eodem How the Attachment is to bee had and entred of course against the Defendant for not answering fol. eodem How the Defendant is tyed to answere in case the Sub poena bee returnable so neere to the Termes end that day cannot bee giuen to answere fol. eod What libertie the Defendant hath to appeare where the Sub Poena is returnable on the last day of the Terme fol. 6. 7. How the Defendant is tyed to appeare and answer being serued on the last day of the Terme with a Sub Poena returnable immediate fol. eod How the Defendant in case where he hath benefit of delay or to answere by Dedimus is tyed to put in his answere fol. eod How the Defendant may by Dedimus potestatem Demurre in his Law and how it is to bee certified fol. 8. How and in what case the Defendant is denied the beuefit of Demurrer to the Bill 8. 9. How an Attachment lyes in case of Demurrer not allowable fol. 9. How to proceede vpon the said Attachment fol. eod How euery Defendant shall be in like paine vpon like fault fol. eod How the Husband shall suffer for the wiues non appearance fol. 9. How an Attachment in such case lyes against both fol. 10. How in case the Complainant doe dye his Executor or Administrator may reuiue the sute fol. eod How the Complainant shall bee enforced to reuiue his suite laid against the Husband and his Wife in case where the Husband dyeth with the Wiues priuiledge in that case for Answere fol. eod fol. 11. How the Feme sole answering alone loseth that priuiledge in case of after-marriage fol. eod How the Feme sole being Complainant is by after marriage enforced to reuiue her suit fo eod The priuiledge of the Wife and her power of election whether she will abide the Bill exhibited formerly by her husband her selfe or no her husband being sithence deceased fol. eod How of Ioynt parties after a Bill exhibited by them the one dying the Suruiuor may proceed against the Defendant fol. 12. How the Complainant vpon Bill of Reuiuor shall be in case as when the cause of Reuiuor accrewed except good cause bee showne to the contrary fol. eod The Bill exhibited for Land vnder 40. s. value per annum is to be dismissed fol. eod Vpon Demurrer or Disclaimer no Replication doth lye fol. eod The danger thereof fol. 12. 13. What libertie the Complainant hath to Reply after the answere is put in fol. 13. What time is limited to him to reply fol. eod How the Defendant may Reioyne enforce the Complainant to ioyne in Commission or otherwise examine witnesses ex parte alone fol. eod How that Cōmission shall be directed fol. eod How the Complainant may ioyne in Commission fol. eod How Commissioners must bee named when both parties doe ioyne fol. 14. What warning must bee giuen for speeding of the Commission and how it must bee giuen fol eod The priuiledge of the Complainant in naming of Commissioners and carrying of the Commission fol. eod In what cases hee may examine Witnesses fol. eod What warning the Defendant is to haue in case where hee will examine in perpetuam rei memoriam fol. eod How the Defendant vpon good cause may stay his examination in perpetuall memory fol. 14. 15. The manner how the Complainant may proceed to examination no cause being showne to the contrary fol. 15. How those Examinations are to bee published fol. eod How those Examinations may bee giuen in Euidence fol. 15. How either partie may examine Witnesses in the Court fol. 16. When the Complainant is ready and able to haue a Cōmission to examine Witnesses fol. eod How the Complainant may proceed to Commission ex parte the Sub Foena to Reioyne beeing serued fol. eod What day the Complainant may giue to the Defendant to Reioyne fol. eod The Defendants danger in not Reioyning accordingly fol. eod How the Complainant may limit the Defendants time to produce his Witnesses fol. eod The benefit of the Defendant by comming in before the last peremptorie day giuen And his preiudice for not comming in sooner before the former dayes giuen were past fol. 16 17. How in Ioynt-Commission either party is to name his Commissioners with the order thereof and the manner of exception therein vsed fol. 17. The common exceptions vsed to bee giuen to Commissioners fol. eod How the Defendant may renue and carry the Commission the Complainant failing to execute the same fol. 18. How the Complainant may renue it also fol. 18. How either party may after either Commission returned giue day for Publication fol. eod What day is to be so giuen and how publication is granted after it is past fol. eod How no Witnesses are to bee examined after publication but by speciall order for speciall cause And with what prouision and limitation it is vsed to be granted fol. 18. 19. How Depositions taken by such speciall order are publisht fol. 19. How the Defendant being arrested in comming to make his appearance here vpon Sub poena may be released by the Court. fol. eod The difference of the case where the Complainant is so arrested fol. eod
which before Iudgement the Court will correct of it selfe fol. eod How you are to proceed when you finde any of those Errours fol. eod How if the party vtlawed can finde no Errour in Vtlary before Iudgement yet he may procure a Supersedeas and discharge the action by Pardon afterwards fol. 111. How the party vtlawed if he haue any goods taken by that Vtlary may free and haue them againe fol. 111. 112. In what case the Defendant shall be forced to enter into Bond to proue Errour fol. 112. The practice of the Court where the cause goeth with the Plaintiffe vpon a Demurrer the Dâ—…bt or matter recouered not being expressed for his reliefe by Dammage fol. eod The like proceeding in an Action of Waste if the Waste be certified in time fol. eod What extraordinarie prouision is made to giue satisfaction in case of Waste fol. eod Care is to bee had by all Plaintiffes and Demandants to heed where Essoynes lye and may be lawfully cast as also to the adiourning of Essoynes And the casting of the Ne recipiatur fol. 113. The Attourney for the Defendant is to heed the casting of Essoynes aswell fol. eod How Essoynes must be adiourned fol. eod What danger in the omitting of the Adiournment fol. 113. The danger of casting an Essoyne where it will not lye fol. eod What heed must bee had to discerne where the Inferiour may pray in ayde of the Superiour And where Vowcher lyeth fol. eod To whom the Processe must be directed for cleering the Question of Bastardie fol. eod Also to cleere and prooue Plenaritie or not Plenaritie in case of Aduowson fol. eod What Pleas Attourneys may plead fol. 114. To a Bond for paiment of money fol. 114. To a Bill of Debt fol. 114. To any other Action of Debt fol. 114. To a Bond for deliuery of Corn c. fol. 114. To a Bond for performance of Couenants vpon an Indenture Or vpon an Arbitrement fol. 115. To an Action of Trespasse fol. eod To an Action of Batterie fol. eod To an Action for Rent fol. eod To an Action of the Case vpon Assumpsit fol. eod To an Action for Slander To an Action for deteining of any thing whereof there is no Bond To an Action vpon Eiectment fol. eod What bee the Common issues vpon simple Actions fol. eod What you may plead vpon an Account fol. 116. What vpon Admistration What vpon a Demise fol. eod What is the generall issue in an Assize fol. eod How all Speciall Pleas are pleaded heere fol. eod How the Defendant is to peruse any Paper-booke of speciall pleading to which the Sergeants hand is put with the proper remedy against such Defendant if he deteine it fol. eod What aduice the Plaintiffes Attourney should haue vpon speciall Pleas and Issues vpon them fol. eod The danger of omitting such aduice fol. 117. What heed the Defendants Attourney must take in suffering a Nihil dicit against his Clyent especially vpon a Bond. fol. eod What benefit one may haue by tryall of a Title vpon an Action of Trans tantum fol. eod The difference betweene such an Action And Eiectione firme fol. eod What makes an Action at Trouer to lye fol. eod The difference betweene Trouer and Detinet fol. eod In what case it is better to suffer an Amerciament then to appeare fol. 117 118. The Inconuenience of continuing an issue too large fol. 118. What course either party may take if at the calling of the Iury they thinke them too fauourable fol. eod For what reason you may except against any of the Iury. fol. eod How many of the Iury may bee chosen for Tryers to the rest fol. eod How an exception against any of the Iury for combination with the Sheriffe or his Ministers shall be tryed fol. eod By whom and how things obiected foâ—… matter of fauour â—…o either party shall bee tryed fol. 119. The vsuall causes of Challenge to any of the Iury. fol. eod Vpon what testimony the Tryers shall finde the obiection or Challenge fol. eod What the Iury shall finde fol. eod How the whole Iury if they be challenged shall be tryed fol. eod The manner how to proceed in Tryall of an Issue fol. 120. What belongs to the Plantiffes Attourney to doe at the Tryall fol. eod What concernes the Counsaile Witnesses Iury and Bayliffe attending the Iury to doe at the Tryall 120. 121. What you are to doe if the Verdict doe passe with you fol. 121. How to sue forth a Recouerie fol. 121. What belongs to the Attourney to doe who sueth in a Recouerie in a Writ of Entry in the Post. fol. 122. Oath must be made of the true yeerely value of the Lands fol. eod What is the effect and Condition of the Recognizance which is to be entred into when you are to haue your Writ from Mr. Attourney vnder his hand fol. eod 123. What course you must take before you sue out your Writ of Entry if the Land be held in Capite fol. 123. What is to bee done after your said Writ is past through Mr. Attourneies hand fol. eod How many Sergeants you must reteine in this case aâ—… Barre fol. eod What is to be done after the Recouery is acknowledged fol. eod 124. How much you shall bee cast behinde-hand heerein by default of the Tenants personall appearance fol. 124. What course to take where the Tenants doe noâ—… appeare personally fol. 124. How the Recouerie may be ouerthrowne by the Attourneies neglect fol. eod What course hath beene formerly anâ—… in times past taken for exemplifying of the Writ of Enâ—…rie aad Seisin with the Râ—…urnes and The benefit of hauing this Writ De non molestando in a readines fol. eod Actions Transitorie and Actions Locall fol. eod The charge of the originall Writ and the meane Processe and Seale inde fol. 138. 139. The ordinary charge to sue an Vtlary in a single Writ fol. 139. 140. The charge of a Nisi prius in Guild-Hall London taken by default fol. 140. 141. The Charge of a Nisi prius in the Countrey fol. 142. Fees belonging to the Prothonâ—…tories their Clerkes fol. 143. 144. 145. Fees belonging to the Phillozers fol. 146. Fees due to the Custos Breuium fol. 147. When Originals and Plur. Cap 's may be put in here fol. eod When the Bundles of Writs of the Termes past ought to be brought in here fol. eod Fees of the Treasurie-house fol 148. 149. Fees of the Clerke of the Essoynes fol. 149. 150. The Cryers Fees fol. 150. The Charge of Reuersing of an Vtlary fol 151. Fees belonging to the Clerke of the Vâ—…laries fol 151. 152. How to get an Vtlarie to be certified fol. 152. The Charge of trauersing of an Vtlarie And the Pardon vpon the same fol. eod 135. The charges of a recouerie at the Barre fol. 154. 155. 156. A Rate of Fines vpon Recouery and Alienation by Table for the