relation to his practice yet I durst not presume to proceed to enlarge thereon lest I should be justly rebuked In some Cases there will be no Plea put in or Issue joyned the first Sessions but the Defendant upon some occasions must move for an Imparlance which is called Licentia interloquendi for brevity Li. Lo. being a granting of time to imparle between that and the next Sessions or to plead by the first day of the next Sessions or some day in the Vacation as the Court shall think fit to appoint or both parties agree to be entred tunc pro nunc for there is a general and special Imparlance and sometimes the Plaintiff will have cause to imparle as well as the Defendant when after the Defendant hath answered or pleaded he is not ready to reply for in all or most Actions begun at a Sessions there must be Recovery by Default or after appearance and Declaration either an Issue Imparlance or a Nihil dicit if the Plaintiff do as he may call for proceedings without both parties will be at a stay by consent wherein commonly a Nihil inde is for that time entred on the Writ or Declaration in which Cause the Plaintiff if he please may proceed the next Sessions after as formerly he might And in such Actions wherein Issue the first Sessions is not joyned if the Plaintiff will proceed the next Sessions he must then look the Docket to know how the matter stood the Sessions before and continue the same unto the Book of Imparlance according to the words of the Docket which may also be done the second Sessions but paying the Prothonotory for the continuance If Causes have slept after appearance and before Declaration be put in and the Plaintiff will not appear to proceed the Defendant if he desires to go on must move the Court to appoint the Plaintiff a time to declare or reply c. as the Case requires and in default thereof that a non-Suit may be entred which the Court of course will grant and the same Rule being entred and not performed then the non-Suit will be entred and if it be after the Plaintiff hath declared the Defendant will have his Costs and an Execution for it if it be not in such Actions wherein Costs do not lye for seldome or never any Costs is had by the Defendant if the Plaintiff become non-Suit before he declares for I knew never any had or granted I should towards the end of the foregoing leaf where I mentioned view lay not in a Writ of Entry Sur Disseizin declared that it did lie in the other Writs as of Dower Writ of Right and Formedon wherein after Declaration is put in and a Rule given to the Tenant to Answer the Tenant may demand view of the Lands which must be done in Court or Office before the Rule be quite out which view so demanded is granted which excuseth the Tenant of making any Answer till the Demandant sues out the Writ of View whereunto as well the Tenant must appear as the Demandant declare de novo by a Similis Narratio and the Tenant must be careful to observe his time to demand the view for it is not grantable after a general imparlance and if the Tenant slips the time he shall not come to it again and he must be more careful to appear or essoin for an essoin will lie at the calling of the Writ of View else the Demandant will then recover seizin of the Lands and have a Writ of seizin and if the Defendant essoins he will gain a day longer to appear and then must appear whereupon the Demandant declares by Similis Narratio mutat mutandis as is aforesaid There are at the great Sessions sometimes other Actions as of Replevin Detinue Accompt Rationabili parte bonorum Partition Waste Actions upon Penal Statutes Curia Claudenda de muliere abducta cum bonis viri Audita Querela and others which have but ordinary proceedings as hath been treated in some other Actions before spoken of whereupon I will only speak a word or two of the nature of each of them Replevins most commonly are brought in inferiour Courts and afterwards removed to the Sessions wherein the Plaintiff declares and the Defendant avows as his Case requires and afterwards the Plaintiff is to put in his bar which is called a Replication in another Action And in this Action both Parties are Plaintiffs and may recover for the Defendant if he makes good his Avowry is to recover his Rent or what else he distrained for with his Costs and Damages at the Trial but if the Plaintiff be non-suited the Defendant is to have a Returno habendo to restore the Cattle distrained by him to his custody as they were before replevied whereby to satisfie his demands But then the Plaintiff if he will may have a second Deliverance and go on again to Trial but if the Defendant recovers in this he is to have a Returno habendo unrepleviable but if the Plaintiff recovers he is to have only Damages for the wrongful distraining of his Beasts and in case the Goods cannot be replevied a Withernam may be had to take the Parties own Goods that did distrain in value c. there is also a homine repligiando for releasing a man detained by another person except for some offences which are mentioned in the Writs and there is sometimes a Capias in Withernam that issues out it is too tedious to express all things concerning them and therefore I leave the Reader if he be ignorant to take pains to learn them out of better Authors as I did In detinue the Plaintiff is to recover the things detained and in default thereof the value of the same in money which the Jury usually finds The same Process is in Partition and in Waste and Accompt which is Summons and Distress but in Partition and Waste the Demandant will recover by default upon the third Writ if the Tenant appears not as in some other former Actions treated of appears And in these two Actions of Partition and Waste there lies no Costs but treble Damages and the place Wasted is recovered in a Writ of Waste And in Partition there be two Judgements one after the Verdict which is no more then siat inter eos partitio and the other upon Return of the Writ awarded to the Sheriff to make the Partition which must be upon motion and is quod partitio praedicta firma stabilis teneatur imperpetuum And in a Writ of Waste the Demandant may depending the Action move for a Writ of Estrepement and is ordinarily granted being a Writ to the Sheriff to restrain and prevent the making or committing any further waste upon the Land Whilt the Action is depending Actions upon penal Statutes are usually brought by way of Information wherein a Distringas is the next Process and the Issue Verdict and Judgement therein if found by the Prosecutor are as the several
Statutes do direct or else a not guilty The Action of Curia Claudenda and do muliere abducta cum bonis viri are in some respects especially that of de muliere abducta c. in the nature of an Action of Trespass the Curia Claudenda being an Action brought by one against another for not securing or enclosing the Fence or Hedge lying between both their Grounds and time out of mind as urged by the Plaintiff usually made up and fenced by the Defendant and all other Owners of his Lands the other de muliere abducta c. is for taking away the Plaintiffs Wife with some part of the Plaintiffs Goods without alledging of which Goods and that also in particular the Action will not be well laid In all my time of Practice I saw but one Action of each of these that is one of Curia Claudenda in Flint-shire about 30. years ago and one de muliere abducta c. in Denbigh-shire 24. years ago wherein 200. l. Damages were recovered The Rationabili parte bonorum is when a Widow upon the custome of North-Wales sues the Executor of her Husband for the moyety of her Husbands personal Estate or when a Brother or Sister upon the same custome sues for a share as may more at large appear in Law Books in which Action all is recovered in Damages being what the Plaintiffs Witnesses can make appear the Moiety to the Wife or the share of the Brother or Sister to be really worth through all the personal Estate Audita Querela lyes when one is apprehended and imprisoned for Debt and Damages recovered against him and against another person who was principally Bayl or Surety with him for the same Debt and when that other person had formerly been apprehended for the self same Debt and Damages and hath satisfied the same for it will not lye without real payment or satisfaction was made by the other person that was formerly taken in Execution though he never lay so long in Goal and came out some way or other without satisfying the party Plaintiff or it will lye for one as became Bayl or entred into Recognizance though the Debt or Recognizance be not really paid and satisfied but the Audita Querela â—n that Case must be brought before the parties attain to the full years if the Audita Querela be made good but a discharge out of the Goal and from the Recovery Recognizance or Execution there are original Writs at the Sessions not spoken of before videlic t a Writ of of Error a Writ of false Judgement a Certiorari or Recordari The Writs of Error is to move the Record of any Recovery had in any inferiour Court which is a real Court and so a Court of Record into the great Sessions so that the Errors therein if any be may be there heard and examined A Writ of false Judgement or sometimes called Accedâ—s ad Curiam is to remove the Record of any Recovery in a mean or base Court which is a Court that hath not power to hold Pleas but under forty shillings to the Sessions A Certiorari for removing any Action depending before it be tryed by Jury in any real Court or Court of Record which hath power to hold Plea above forty shillings which are Courts held by Charter in Corporations or Lordships and in some Lordships Marchers by prescription unto the Cost of the great Sessions there to be proceeded upon and go to Issue and Trial if the Plaintiff when it is removed will prosecute and follow it A Recordaâ—e is to remove any Action begun and not tried in the said base Court under 40 s. to be proceeded on as is aforesaid touching the Certior at the Sessions Now for proceedings in the said Writs of Errours false Judgement Certiorari and Recordari thus much which followeth The Writ of Error after it is granted must be delivered to the Steward or Judge of the Court where the recovery was had and he must certifie the Record to the next Sessions or an Attachment lies against him And when it is there entred he that put in the Record must assign Errours by his Councel and sue forth a Scire facias ad audiendum Errours directed to the Sheriff at the return whereof if a Scire fcci be returned the Defendant in the Writ of Error must appear and plead to the Assignment of Errours which is In nullo est erraetum in Common Pleas and if he doth not appear and plead the Court may proceed by default to hear or rather to examine the Errors and in both cases there must be a day appointed for reading the Record and then after part thereof is read the Errors are opened by Councel and if the Cause be argued on both sides thereupon the Court will either reverse or affirm the Judgement and if Judgement be reversed the Plaintiff in the Writ of Error shall have his Costs but there are no Costs upon reversal of a false Judgement as shall be said hereafter And if Judgement be affirmed the Party shall have Execution as well upon his former Judgement as for what Costs and Damages shall be awarded by the Court to him for that delay A Writ of false Judgement is directed as well for Judgement given in other mean Courts as in his own County Court for such as are Judges in those Courts have not the return of Writs but in this Writ there is a far shorter proceeding when the Record is put in then in the Writ of Error for here needs nothing after it is put in but Councel to move to have it read which being done Judgement is either reversed or affirmed If reversed the Defendant in the Court below who is the Plaintiff in the Writ of false Judgement is to have a Writ to be only restored to what he hath lost that is to what he hath paid upon the former Judgement if any to have no Costs but the bare sum he was driven to pay upon the former recovery in the Court below If affirmed as seldom or never it is then the Plaintiff in the inferiour Court is to have Execution out of the Sessions for what he formerly recovered without Costs A Certiorari is to remove an Action above 40 s. as is aforesaid out of a real Court or Court of Record before any Judgement or Trial be had therein in that Court. And in that and in the Recordari such as sue them forth are to deliver them into the Sessions by their Attornies having first called them from such as are to return them to wit the Steward or Judge of the Court of Record for the Certiorari as in the Writ of Error before and to call to the Sheriff for the return of the Recordari to whom the same as before is said 〈◊〉 false Judgement is directed and are to be proceeded upon as in all other Actions of the nature they be from the beginning only that Writ serves for an Original or a Q 〈◊〉
in Actions upon the Case for Debt where the proof must be punctual with the Declaration In all Actions of Trespass Trespass upon the Case Trespass and Ejectment the words of the Writ or Queritur to the Sheriff are Quod ponet per vadios salvos plegios and on every Writ where these words are the Sheriff is to retorn Issues which must be more or less as the nature greatness or condition of the Cause requires which if he doth not the Court upon motion will command to heighten or encrease the Issues thereby to compell the Defendant to appear and to expedite the Plaintiffs Cause to Trial because it is well known that in all these Actions the Plaintiff cannot recover by default for want of appearance but after appearance if the Defendant pleads not the plaintiff may have a Writ to enquire of Damages as hereafter appeareth If the Defendant appears not the Plaintiff must sue forth a Distringas an alias a pluries and a plus pluries Distringas and so in infinitum till appearance be had and upon every Distringas the Sheriff is to encrease the Issues or rather at least to double them but if the retorning of Issues will not compell the Defendant to appear then the Sheriff may be compelled to retorn a Nihil habet in Balliva mea per quod distringi possit c. and upon that Retorn a Capias may be had to apprehend and attach the body of the Defendant to answer c. And if thereupon the Sheriff retorns a Cepi Corpus c. the Defendant being brought to the Bar shall upon motion be ordered to remain in the Sheriffs Custody till he find Bayl or Pledges to answer such Recovery as shall be had against him for it is an observed Rule he who comes in or appears upon Bayl must go out or be discharged upon Bayl. If the Defendant after appearance plead not then the Plaintiff is to move in all the last mentioned Actions for a Writ to enquire of Damages and then the awarding of it must be entred which in some respects is in nature of a Judgement and upon the return of it and of the Juries Inquisition Judgement for the Dammages and Costs is to be entred but not used without a special motion to have it granted for the Defendant may object many things against the Inquisition and thereby prevent the filing of it and so perhaps put the Plaintiff to take out a new Writ In Writs of Dower quod ei deforceat the second Writs are Summons and the third is a grand Cape upon which if the Defendant appears not the Demandant is to recover by default and to have a Writ of Seizin of the Lands but the Tenant may appear upon the grand Cape and save or excuse his default which is very seldom and not so easily done if the Demandants Councel will urge all that is just and requisite by Law for his Client to demand and require before the Tenant be admitted to appear If after Appearance and Declaration put in and three Rules past the Tenant pleads not a petty Cape is to be awarded against him and thereupon Judgement shall be entred of course and execution awarded When the Plaintiff or Demandant after Declaration put in do not proceed the Defendant or Tenant may call him to proceed and if he makes default a non-suit will be entred and the Defendant or Tenant shall then have Costs in all Actions wherein the Plaintiff or Demandant ought to have had them if he had recovered In a Writ of Dower where the Husband died not seized there is no Costs for Demandant or Tenant but where the Husband died seized the Demandant recovers as well Dower as Costs and Damages which the Jury always finds viz. the value of the Profits of the third part of the late Husbands Lands since his death as the Jury shall have Evidence to find the worth or value but where the Recovery happens to be by Default and so without Jury then there is a Writ to be directed to the Sheriff as well to assign Dower to the Demandant as to enquire by a Jury whether the Husband died seized or not and if he did to enquire of the value of the Lands and upon retorn of that Writ if the dying seized be found the Demandant shall have a Writ of execution for the third part of the Profits according to the Verdict and for her Costs of course The common and ordinary Writ of Dower sayes in the close thereof Vnde nihil habet but in a Writ of right of Dower as where one received part of her Dower and sues for the rest in the same Township these words of Vnde nihil habet must be left out which difference is to be usually read and seen in several Books which an Attorney should necessarily learn that he may know which Writ to take out when his Clyent tells his Case to him lest his Councel may undervalue him for his ignorance in common and ordinary things Upon every Writ of Quod ei deforceat the Demandant after appearance may declare either in the nature of a Writ of Entry sur disseizin or in the nature of a Writ of Right or in the nature of a Formedon which are of divers sorts If the Demandant recover in a Writ of Entry he recovers also Costs and Damages and so shall the Tenant if the matter pass with him but in the two other last mentioned Writs there are no Costs to be had on either side and on the Writ of Entry there lyes no view but in the rest it doth as hereafter shall be more fully declared A Writ of Right is a concluding Action because it is of the highest nature and in it and in a Formedon the Tenant may vouch and then a Writ of Summons goes to the Sheriff to summon the Vouchee whereon if he retorns Nihil habet c. there goes out an alias and a pluries and then a Sequatur sub sue periculo And in some Cases in these Quod ei deforceats and in other Actions where the Actions cannot be well laid or commenced but in the name of several persons whereof some of them will have no mind to bring or prosecute the same it will be requisite to take out Writs of Summons ad sequendum simul cum and Summons and Severance which Councel must direct and in all Cases of that high nature there is indeed nothing to be done without his directions which the Attorney will be the better able to observe and prosecute if he understands them as in some measure he should And in some cases the Demandant may vouch and become Defendant when he shall defend his Estate against such Recovery as shall be pleaded against him so that there are divers other thing wherein there is a great deal of learning in those Formedons and Vouchers worth any mans knowledge towards the Law and though fit and requisite for an Attorney to know as much as is in
thereby he may perhaps prevent a greater charge and a longer delay the Challenge hath but an ordinary form therefore I omit it and though the Pedegree be a little mistaken I never found it much material for it would come to the same viz. that the Plaintiff may have his Process either to the Sheriff Coronors or Elizors and avoid all inconveniences that falls out by omitting it But in these Challenges there must be observed what the form of Law requires as if it be for Kindred to the Sheriffs Wives then to mention that she is living if the case be so if she be dead to mention her death and that the Sheriff hath Children alive by her if he hath and many such things that if the Wife be dead and no Children living by her there needs no Challenge And if Process is to go to Elizors the Court must be moved to nominate them and then swear them but if otherwise then you are to take out your Process of first Jury-writ to the Sheriff or Coronors or one of them as the Defendant admits it and he shall have no benefit of any Challenging to quash the array though there were Kindred but if you omit this course as is said and take Process to the Sheriff when he is of kin then the Defendant may when you have retained and instructed your Councel and been at charge with your Witnesses and so be ready for Trial put you off that Sessions by challenging and quashing the Array upon that Kindred or Alliance suggested by that Challenge made to quash the Array which Challenge to quash the Array must be moved and put into Court by the Councel of the Defendant after the calling and appearing of the Jury and before they be sworn And that challenging may be two-fold the one as principal as for Kindred and Alliance between the Plaintiff or his Wife and the Party who returned the Jury the other for favour as where the Sheriff or his Officers returned the Jury by nomination of the Party or where the Lessor in an ejectione firme is of kin for as I should have said before if there be no Kindred at all between the Lessee who is the Plaintiff in the Action and the Sheriff and if you find there is Kindred between his Lessor and the Sheriff it behoves you before you take out your Jury-Writ to put in as before is shewed a Challenge to the Sheriff for Kindred to the Lessor or where there is Kindred between the Plaintiff or his Lessor and such as returned the Jury by bastardy that as I heard is no principal Challenge but a Challenge to the favour And so if that Challenge to the Array be made good upon good Oath punctually the Array as aforesaid will be quashed and the Plaintiff be put to begin de nove with Jury-Writs which cannot be brought about that same Sessions for the Defendant may cast an essoin to the Venire facias the first Jury-Writ but to all such Challenges to the Array the Plaintiff is called to speak to it and he must either confess it or deny it And so both Parties joyn issue upon it if confessed then the Array is quashed if denied then Triers are sworn to try whether the Kindred be as is said which Triers will be two or three of the Jury that had appeared And if they find the Kindred the Array is quashed if not the Array will be affirmed and the Plaintiff shall go on with his Trial and the Jury that were called and appeared will be sworn to try the cause but if the Array be quashed as for Kindred to the Sheriff the Plaintiff must take a Venire facias to the Coronors though the next Sheriff be no way kin or allied to him And if the Jury writ whereon the Array was quashed was returned by the Coronors the Plaintiff must begin and take his Venire facias to Elizors though there were new Coronors sworn that were neither kin nor allied to the Plaintiff because the Plaintiff taking out his Jury-Process de novo cannot go backward but must still go forward If the 24. Men returned on the Venire facias are returned by a Sheriff that hath no relation to the Plaintiff and a succeeding Sheriff that will be of kin to the Plaintiff returns the decem tales on the habeas Corpora in that case the Defendant if cause be to Challenge the Array is to say nothing to such as appears on the principal Pannel till those appear who were returned on the docem tales by the last Sheriff and not before a Challenge may be put to the rest of the Array from that place forward ut supra when Triors are named by the Court as is aforesaid to try whether the Array returned stand indifferent by reason of the Kindred proved between the Plaintiff and such as returned it the Plaintiff or Defendant may twice challenge or accept against those Triors without shewing any cause for it but the third Challenge is peremptory which must be allowed at the Partiesown peril when the Plaintiff hath made put in his Challenge as is aforesaid or is assured that he needs not he is to take out his Venire facias and return it or file it in Court which the Defendant may if he please Essoin and thereby gain a day longer to prepare himself but the Essoin must be cast at the Challenge of the Writ or else too late when the Essoin is not allowed or not Essoined at all then a Habeas Corpora with a Decem tales is to be taken out and so if cause requires a Distringas Juratorum with an Octo tales Upon Challenge the Habeas Corpora or Distringas Jurat the whole Jury therein returned will be called and after they are all called if twelve appear they will be sworn but before they be sworn any of the Parties may challenge any one of them or all if there be cause by the Poll if any Party dislikes any of the Jury by reason of Kindred or favour to the other Parties Attorney must say when that Jurors come to the Book to be Sworn I challenge him for the Plaintiff or for the Defendant which will in the margine of the Pannels be entred And then he that is challenged is not sworn till twelve be found out if so many indifferent men appear upon the Pannel or till all the names in the Pannel be called And if full twelve be not found to appear upon the Pannel and after the Pannel is perused and gone through then the Party which challenged any is called to shew his cause of Challenge against such and such and then must his Councel or Attorney manifest the Cause which is most commonly for Kindred or Alliance to the other Party or that the Jury challenged is Tenant Servant or within the Plaintiffs destress if the Challenge be put in by the Defendant and so e contrario if the Challenge be put in by the Plaintiff if you name at
first but one of those Causes of Challenge and the Juror upon Oath deny it you are not allowed to go back and name the rest of the Causes of Challenge And therefore for fear of the worst all those Causes are usually named at first for the Juror challenged is to be examined upon the Voyer dier to all those exceptions and if he doth confess or acknowledge any of them he is put by and excused if not he is sworn to try the Cause and very often when the Party challenging will not allow the bare denial oâ— the challenged but will produce proof to make good the Causes or one of them for which challenged whereupon two of them that will be already Sworn to Try the Cause will be again Sworn to try whether the Party challenged is an indifferent man as he stands unsworn to be of that Jury or no if they find or say he is or stands indifferent he is presently Sworn to Try the Cause and if they say he is not he is put by as is said before And if a Challenge be made by Plaintiff or Defendant to any of the Jury for corruption or any other miscarriage in him as may be then you must prove it by Witnesses for the Juror will not be compelled to his Oath in this as in other cases to accuse himself in such case and as good not challenge any or rather better upon that score if it cannot be palpably proved for if not proved he will be Sworn to Try the Cause and perhaps when he is amongst his Fellows debating the Cause think of the ignominy which was spoken and offered him and could not be proved and then do the Party as challenged him a discourtesie if not a mischief If there do not appear full twelve upon calling of the Pannel after they are twice called then the Plaintiff is told by the Clerk as called the Jury that there is not a full Enquest and asked what he prays and then Councel prays a tales but it is in the Plaintiffs choice to pray a tales de Circumstantibus or a tales at Common Law which is had upon further Process But if he prays a tales de Circumstantibus as most usually it is then the Sheriff Coronors or Elizors or some of them that made retorn of that Pannel is presently to retorn as many of the standers by as will make up a full Jury but if you pray a tales at Common Law you may take out your further Process at that or the next Sessions if you sue out a Venire facias one Sessions and do no more then you are to take out the Habeas corpora the next Sessions and continue the Cause if the Cause be stayed upon Habeas corpora to continue the Cause the next Sessions after and sue forth a Distringas Juratores if after Issue joyned the Plaintiff will not proceed in the Cause then the Defendant upon any default made by the Plaintiff may go on if he please by moving the Court that he may proceed with a Proviso which of course the Court grants and the same Rule being entred the Defendant shall proceed and take the matter in the same place where the Plaintiff left to wit if the Plaintiff left it after Issue joyned before any Writs taken out the Defendant is to take out a Venire fac with Proviso which is no more then to prohibit the Sheriff to retorn one Writ of the same nature in case two came to him one from the Plaintiff and one from the Defendant so that the Sheriff is to retorn only the first that comes to him and if the Venire facias be taken out by the Plaintiff the Defendant upon the Plaintiffs default may take out the Habeas corpora with a Proviso and so forward in all Processes with a Proviso and the Court shall proceed thereon to Trial or non-Suit let the Plaintiff appear or not appear but if the Plaintiff please he may appear and give Evidence as well upon that Writ of the Defendant as if it had been sued out by the Plaintiff and challenge the Jury or the Array Co. lib. Intr. 340. As for kindred between the Defendant and the Sheriff but if the Plaintiff appears not as soon as the Jury are sworn the Plaintiff will be called and upon his non-appearance non-suited When a Jury is called and after full appearance of twelve and are ready to be sworn the Defendant before any be sworn will be called to appear and will be told in all personal Actions that if he doth not appear the Jury will be taken in his default whereupon the Defendant either appears by his Attorney or not appears if he does not appear the Plaintiffs Councel prays that the Defendants default may be entred and the Jury taken by default which is accordingly done and though the Defendant makes default and appears not by his Attorney yet if he please his Councel will be admitted to speak for him and manage his Evidence if there be any as far forth as Councel can in the Defendants defence but an Attorney will not be admitted to speak or act any thing for him but in a real Action when the Tenant is called ut supra he is told that if he appears not a Pettite Cap. will be awarded against him and upon his non-appearance or default the Demandants Councel will move that the default may be entred and the Pettite Cap. awarded which the Court grants and the Trial stayed and the Pettite Cap. issued out and when it is retorned and called which will be ordinarily the next day after the default the Demandant shall have Judgement and recover seizin of the Lands unless there be a receit in the Case but before I speak thereof I will end with the manner of Trials for at some Trials after the Jury are sworn and after some Evidence given or before any Evidence given the Cause is by both parties consents referred or stayed wherein in such a Case to prevent a Verdict or a non Suit of either sides a Juror is withdrawn which will be the first second third or last or any other that were sworn of them that appeared on the Pannel as the Court shall direct and then is strucken out of the Pannel and the Jury discharged and paid equal by both parties Plaintiff and Defendant the withdrawing of a Juror must alwayes be with the consent of both parties and cannot be by an Act of the Court without consent of the Plaintiff and Defendant and where a Juror is withdrawn if the Cause be not comprized and ended by the next Sessions following the Plaintiff may go on if he please and if he will not the Defendant may go on with a Proviso as is before said and if it stood upon the Habeas corpora there will issue out a Distringas Jurat wherein all that were named upon the former Pannel will be named in the Distringas saving him who was withdrawn and stricken out of
Determination of the Court which sometimes after Argument is given and entred for Plaintiff or Defendant as is before spoken where a special Verdict is given and therefore I will not enlarge further thereon having stood somewhat longer on manner of arguing and determination of a special Verdict then altogether concerned my purpose being to direct an Attorney how far he was to act in that and in this It is the Councels part to manage all things Again when a Jury after they heard their Evidence and deliberate thereon comes to deliver their Verdict if the Plaintiff when he is then called becomes non-suit it is requisite that the Defendants Attorney have care which I omitted to speak of when I formerly spake of a non-suit where it had been more proper that is to say a special Entry made of that non-suit that it was after Evidence whereby the Record may be as several Presidents are for it drawn up accordingly for there is a very great difference and strong one when occasion is to be urged between a common ordinary Non-suit before Evidence and a Non-suit after full Evidence on both sides given for it is near as good as a Verdict for the Defendant And in so doing the Attorney may perhaps benefit his Client far more then what he had formerly done for him in this Cause if the Plaintiff should afterwards stir therein and bring his Cause about again to another Trial. After Recovery or non-Suit there may be several Writs of Execution had by the party that recovers though but one at a time for to attain the fruits of his Recovery which Writs in Debt and all other personal actions are either a Capias ad satisfaciend a Ficri facias or an Elegit the one being to take the body the other to seize on the party goods and chattels the third to find the moiety of his Lands that he had at the time of the Judgement given and all his Cattel except the Cattel of his Plow If an Elegit be taken out the party can resort to no other Writ â—till the time expires that he must sue forth a Sci. fac for to renew his Judgement if a Capias be taken out he cannot resort to a Sci. fac but after a Fi. fac there may be a Cap. had upon retorn of Nihil habet in Balliva mea c. After an enquiry is made upon an Elegit and Lands found the party that sued it out if he conceives that what is done upon it it may satisfie his Recovery is to retorn it and have it filed in the Prothonotary Office or else keep it with him and accept a time to take out another Elegit or another Writ if it be to be obtained for if he files his Elegit he is thereby concluded and barred from having any further Execution though by that which he filed he could never attain to the third part of his Recovery If a Sheriff upon a Capias retorns Non est inventus the party may have an alias if he please or an Exigent which is to the Sheriff to proclaim the Defendant at the fourth or next County Court and at the fourth County he is to be outlawed by the Coronors Judgement and when the Exigent is retorned then will issue out a Capias ut legatuâ— which is either general or special the general is to take the body only and the special is as well to take the body as to find or to seize on the party his Lands and Goods to the Kings use till the party clears himself of the Outlary But I never understood in all the time of my experience and upon all my enquiry how or in what manner legally a man upon an Outlary had out of the Sessions and Lands found thereon may come to reap the benefit thereof by satisfying his Recovery though it is ordinarily done in England for no Inquisition upon an Outlary was ever retorned to our Welch Exchequer which is an Office belonging to the Sessions for making of Original Writs there and how it may be transmitted or Cognizance taken of them at the Exchequer above forth I leave them to signifie that have reason to be more knowing then my self therein for there was no such proceedings in all my time and never before for ought I heard There are also in Actions of Dower and on other real Actions a Habere facias seisinam as an Execution to be taken out to obtain possession of the Lands recovered and in it sometimes a Writ to enquire of Damage as in Dower which is recovered by default or where it appeared not what the Damages were and a Capias or Fieri fac for the Costs wherein Costs lyes which Writ when executed is to be retorned and filed and in Ejectione firmae an Habere facias possessionem is the Execution for to put into possession with a Cap. or Fieri fac as is aforesaid included or by it self for the Costs and Damages which likewise are to be retorned and filed after they are executed If Execution be not taken out till a year be expired since the last Execution upon any Judgement was sued forth then the Plaintiff should have no Execution though Prothonotories use to do it by continuing the Cause before he takes out a Scire fac to the Sheriff to sum non the party Defendant to shew cause wherefore the Plaintiff should not have Execution and if the Sheriff retorns thereupon a Scire feci as there is a Rule given by the Court to shew cause c. but in some Courts there be two or in some three Rules to appear and the like to plead which in Summe seems to be too favourable to the Defendant and in great delay to the Plaintiff which may tend to his prejudice but in default of appearing and pleading something to it Judgement is entred which is Quod fiat Executio and then Execution awarded the Defendant may plead thereunto what the Law admits and as his Case stands Nul tiel record and several other things But some hold that that Plea holds not in the same Court where the Judgement was obtained others I found of opinion it would but when it is admitted as soon as the Record of the Judgement is produced and read there is an end of it and Execution is presently awarded if the Sheriff retorn upon the Fieri facias Nihil habet per quod c. the party Plaintiff must take out another Scire fac and if the Sheriff retorns the same Retorn on that then those two Nichils amount to a Scire feci and the party shall have Execution as if a Scire feci had been at first retorned in case the Defendant appears not or afterwards plead not There be several Causes wherein a Scire fac is requisite after Judgement before Execution be made or taken out as if the Plaintiff or Defendant died after Judgement there must be a Scire fac for the Plaintiffs Executor or Administrator of the Defendant if the
the return thereof if cause require to enter and issue forth Proclamation of Rebellion but no sequestration without motion in Court and every of these Processes to bear teste from day to day and all contempts are to be cleared or paid for before answer be received and all Bills and Answers to be subscribed by Councel 3. If no Bill be filed against the Party served within three Courts after the entry of his appearance he shall upon the producing of the Subpoena or Ticket wherewith he was served and filing of it with his Affidavit of his service be of course dismissed with vj. s. viij d. costs and if after answer no exceptions or reply be filed and entred or other proceedings given within four Courts the Defendant is of course to be dismissed with 13. s. 4. d. costs having first by himself or his Attorney moved the Plaintiffs Attorney to give proceedings 4. After replication entred and received and issue joyned and at any time before publication either Party is at liberty to examine witnesses before the Register giving notice of the witnesses names in writing to the Attorney of the adverse party and for want of notice the examinations to be suppressed and the first interrogatories to be ministred to all the witnesses without any alteration without special order of Court 5. That in all causes wherein witnesses have been examined in the Registers office or by Commission returned and certified publication shall without motion pass if cause be not shewed by the Plaintiff or Defendant before the rising of the second Court on Wednesday in the Sessions week in the County wherein such causes arise and both parties if present or such of them as appear there in person or by Attornies that present Sessions at their peril without service of any Process in that behalf otherwise if absent and not appearing as aforesaid to be served with a Process to hear Judgement therein at such time and place as the Justices of the same great Sessions shall appoint 6. If a Bill of Costs awarded upon any hearing or otherwise be in difference between the Attornies the Register is indifferently to tax and allow the same and the order to pass according to his approbation therein without motion 7. That no motion in any cause after appearance entred be made by Councel or Attorney without notice first given of the purpose and intention thereof to the Councel or Attorney for the Party against whom such motion is to be made and that if any such motion shall be made before notice the same shall be of no effect and at every motion the last Rule in that cause to be produced 8. Where any Person shall be brought in by Process or shall appear gratis to be examined upon a Contempt he shall give notice of such his appearance to the Attorney of the other side and if within three Courts after such appearance or notice given Interrogatories shall not be exhibited to examine him or if being examined no reference shall be procured of his Examination then the Party so examined shall be discharged of the Contempts without further motion and attend the Register for taxing of Costs which the Register is to tax without further order Montgomery and Denbigh A Note of the Fees belonging to the Prâ—â—â— thonotary of North-Wales in Causes real and mixed FOr every mean Process before Appearance ij s. For every Warrant of Attorney and Essoin severally iv d. For every Declaration Plea Reply Rejoynder Surr. Demur and joyning in Demur ij s. For every Issue joyned of either Party ij s. For every Pet. visum ij s. For every Imparlance ij s. For every Writ of Grand Cape ij s. Petty Cape ij s. View ij s. Sum. ad aux ij s. Sum. ad Warr. ij s. and other Judicial Writs ij s. For every Continuance ij s. viij d. For every Challenge to the Sheriff ij s. the like to either Coroner ij s. to all three in all vj s. For Challenge unto the Array ij s. For Affirmation or Quasat thereupon ij s. For every Ven. fac ij s. q. For every Hab. Corp. Distring c. ij s. viij d. For every Tales de Circumst ij s. For calling the Jury j s. For every Adjournment of Jury Remanet or Juror withdrawn by Assent of Parties ij s. For Verdict and Judgement iv s. For every privy Verdict v s. For Reading the Record ij s. For Reading the Evidence ij s. For every Non-suit iv s. For every Capt. by default ij s. For every Writ of Seisin ij s. For Slander the Fees for the most part concur with the precedent Fees as experience will inform Fees in Personal Actions above 40 s. Debt or Damages FOr the first Bill or Pone x d. For every second third Sum. or Distr vj d. For every Warr. of Att. and Essoin severally iv d. For every Adjourn ij d. For every Decl. viij d. For every Pet. Audit viij d. For every Li. lo. xij d. For every Bar and other Pleas xij d. For every long Plea entring Indent and Awards in heo Verba for every sheet viij d. For every ordinary Issue of either Party xij d. For every Non est factum xij d. Similiter inde iij s. For every Demurrer xij d. For Issue thereunto xij d. For every Continuance j s. iv d. For every Ve. fa. j s. ij d. For every Challenge Plea Quasat or Affirmat as before per piece ij s. For every Hab. Corp. j s. viij d. Voc. Jur. j s. Tales ij s. For every Adjournment of Jury Remanet or Juror withdrawn ij s. For Reading Record j s. For Verdict and Judgement ij s. For Non-suit ij s. For Capt. by default j s. For Ca. Sa. or Fi. fa. vj d. Personal Actions under 40 s. FOr every Summons Pone and Writs thereupon issuing iv d. Warrant Attorney iv d. Declaration iv d. Euery Issue iv d. Continuance viij d. Judgement viij d. After Issue joyned the Fees are taken as in the former Action above 40 s. For Awarding upon Record and making of every Writ of Retorn Habend ij s. Second Deliver ij s. Ca. in Wither ij s. Priviledge ij s. Procedendo ij s. Certiorari ij s. Elegit ij s. Scire fac ij s. Inquir de dam. ij s. Ha. Cor. cum Causa ij s. Duces tecum ij s. Distr Ballium ij s. Distr nuper vic ij s. Sum. severans ij s. Restitution ij s. Diminution ij s. Extent ij s. Mittimus ij s. Cap. ad Respondendum j s. Exigent j s. Cap. ult j. s For Recording the Appearance of every Person Arrested ij s. iv d. For every special Bail ij s. iv d. For Entring upon Record an Infants Admission to his Gardian or Procheyne Amy by the Court ij s. iv d. For a Deed Inrolled for every side of a Roll v s. For entring every Attornies name in the Roll when he is Sworn iij s. iv d. The Fees of Common Recovery with a single Voucher NArr vers tenant
〈◊〉 to ground the Action And in case where any man 〈◊〉 sued out any of the aforesaid 〈◊〉 mentioned Writs of purpose to delay proceeding in the Court below as often it falls out and the Party suing forth the same is slow or negligent to return and put in the same the other Party Plaintiff in the Court below is to move the Court to appoint a time to put in the same or in default thereof that a ne recipiatur may be entred which is entred And if it be not put in by the time appointed the Plaintiff below may take out a Copy of that Rule or if he please take out a Writ of Procedendo and thereby proceeded in that Court below notwithstanding the former Writ procured or taken out for delay ut supra and if the Writ of Certior be put in into the Sessions and the Plaintiff in the Action will not appear and prosecute then a non suit will be entred wherein no Cost lies if it be before Declaration And if the Defendant appears not the Plaintiff may proceed and shall recover by default if it be an Action of Debt if otherwise he may proceed as the nature of the Action requires But if Bail be entred in the Court below to answer the Action as commonly there is and that certified with the Plaintiff as often it is and indeed should be then when the Writ and Plaint is returned and filed and the Plaintiffs appearance entred by his Attorney the Plaintiffs Attorney is to move the Court that the Defendant be ordered to put in there the same Bail as was in the Court below all which is usually granted and had And there be good Reasons it should be so that besides the Common-Law-Rules before mentioned which is That he who comes in upon Bail or once is driven to find Bail should again finde Bail it is fit that the Party Plaintiff should stand in the superiour Court notwithstanding the Defendants removing of the Action from below in as good a condition and in no worse then he was in the other Court for if the Plaintiff should have no Bail found him at the Sessions the other Bail that was put in at the Court below being free by the removing here the Plaintiff would be in a far worse case then he was and perhaps if the Defendant prove insolvent be remediless of the fruits and benefits of his Action at the Sessions And if Bails were not ordered to be given upon all Actions removed to the Sessions where Bail had been formerly given in the inferiour Court then it were no great matter or prejudice to any loose mean and unthrifty Person to be arrested in any Corporation for any sum of Money though never so great and just for he could readily find some or other sufficient Bail if both were assured and knew that that Bail could presently or shortly after free and discharge charge himself by being at th◠charge of a Certiorari and retorn it into the superior Court which indeed any Bail would do to free himself from his first Engagement and so put the Principal were it not for the Course before-mentioned in the same estate as he stood before the Arrest which would be heard to the Plaintiff but as it is used as before is said if the Principal for all their moving of the Action be not able to find at the Sessions the same Bail again as was at the Court below or another as good the Plaintiff shall as aforesaid have a Procedendo to the inferior Court If an Attorney finds himself any way ignorant as the best many times may be what Process to issue out in any of all the Actions before-mentioned or how to prosecute the same from time to time let him often attend Councel to be guided and often instructed by him and he cannot do amiss for therein few or none do miscarry in their business but such as trust overmuch to themselves and so neglect the advice of others which is too common and known a fault Therefore I should advise all Attorneys never so able and knowing to attend their Councel as often as possibly they can not only to give him Instructions in their Clyents Cause but also to receive Directions how to proceed in the Cause and also to bring his Councel Copies from time to time after the Action is called of the Writs and of the Declaration and all pleadings thereunto yea and of all Rules passed in the Cause were very requisite for otherwise if any thing prove amiss they cannot be faultless and in observing and doing what there above is advised they will not only much further their Clyents Cause and gain to themselves more knowledge but also avoid the blame and censure which Councel too often and sometimes justly laid upon the Attorneys for their neglect therein and so shall they not only preserve but also encrease their good repute and credit with Councel and Clyents which I hope all discreet Attorneys do or at least should esteem and look upon far above their gain and profit Hereunto touching the proceedings in Actions till Issue be joyned in them Now followeth how to proceed and what is to be done in them after Issue is joyned Now for further proceedings in all Causes to trial after Issue is joyned the Party Plaintiff is to sue forth his Jury Writs as his Venire facias and Habeas corpora and if need be a Distringas Juratores and for better expediting of his Trial and preventing rubbs and obstacles that may come in his way he must consider and enquire whether there be any kindred affinity or alliance between him or his Wife and the Sheriff or his Wife and if there be he must put in his Challenge to the Sheriff and thereby pray Process to the Coronors to retorn his Jury and move before any Writs goes out that the Defendant may answer it and thereupon the Court will appoint a time ordinarily but to the next sitting and then if he does not answer it by saying Vicecomite non obstante as he may and usually is done or pleaded to it if he please which is seldome done or say nothing to it then the Plaintiffs prays by having Process to the Coronors is granted but if the Defendant yields it as is aforesaid by allowing the Sheriff notwithstanding that Challenge the Process goes to the Sheriff And so again if he knows or suspects kindred or alliance to any of the Coronors he may put his Challenge to the one and pray Process to the other Coronor and the other which is of kin not to intermeddle or put in a Challenge to both Coronors if there be cause and pray Process to Elizors which is alwayes the safest course and in a Cause of any consequence no man should omit any of these to all those Officers notwithstanding the little charge he be thereby at and the little delay he is thereby put unto which seldome is not used to be above one day for