is aliorum negotiorum gestor for qui per alium facit per seipsum facere videtar likewise these Statutes following do institute Attorneys in the County Court viz. 6 E. 1. cap. 8. 20 H. 3. cap. 10. c. F. N. B. 156. I could instance many more but I hope these are sufficient to stop the black mouth of a scurrilous Antagonist In their practice they ought to be honest and just according to their office and oath not exciting men to Suits especially such as are forrain and illegall nor for little offences and small debts nor voluntarily argenti gratia delay their Clyents nor demand any sums of mony for the prosecution of the Action otherwise then is allowed by the Court. Of Bayliffs A Bayliff is a Servant or Minister of the Law and by consequence a Servant to the party at whose Suit he is to distraine the goods of any one Therefore he ought to be true faithfull and vigilant in levying of Distresses he ought not to be exoculated with common rurall bribes as too many of them are His office is thus described by Fleta Balivus esse debet in verbo verax in opere diligens fidelis ac pro diserto appruatore cognitus plegiatus clericus qui de communioribus legibus pro tanto officio sufficienter se cognoscat Et qui sit ita justus quod ob vindictam seu cupiditatem non querat versus aliquos c. He is to be contented with his wages and fees allowed him which are certain and known and as I have described particularly being usually paid if he take more then he ought or commit any error in the Execution of his Office contrary to the tenure of his Precept then is he to forfeit forty shillings and to be convicted thereof by the examinations of the Justices of Peace or any of them 14 E. 3. cap. 9. And the Sheriff ought not by his oath to have any Bayliff but such as he will answer for and such as be true and sufficient men in the County and make each Bayliff take an oath for the true execution of his office but such things are now not taken notice of And by the Statute of 27 Eliz. cap. no Bayliff or other person ought to take a Distresse nor to execute any Processe untill he be sworn but now common experience and practice at this day bears testimony to the contrary Alfred once King of England hanged Judge Arnold for saving a Bayliff from death who had robbed the people by Distresse and for extorting of Fees If the like Law were executed upon some of our grand Malefactors it would make the Remainder more honest What Actions may be brought in this Court HAving precipitated my self thus far before I enter upon the Proceedings of the Court I will demonstrate the grounds and cause of Proceedings and that is Actions which is the form of a Suit given by Law to recover a mans right or actio nihil aliud est quam jus prosequendi in judicio quod sibi debetur Therefore what Actions will hold in this Court take as followes All Actions of debt either upon an account made by the parties for wages after a hire sums of mony owing or due from one man to another whether by writings or otherwise it is grounded sometimes by writing as an Obligation Bill Covenant or other especialty sometimes without writing as an Arbitrament Rent mony lent Parol Contracts or the like All Actions of Detinue Trover and Conversion deceit upon a Warranty a Delivery Nusance Case for scandalous words case upon Assumpsits and other Actions of the case as for a Dog killing Cattell abusing a Distresse spoyling my Goods c. Actions of Trespass Assault and Battery c. All these Actions would afford very much matter to treat of at large but least this Treatise should swell beyond its limits I will refer you to the reading Fitzherberts Natura brevium which doth learnedly treat of the nature of all Actions that lye in any Court of Judicature Within what time Actions must be brought ALL Actions of debt grounded upon any lending or contract as Book-debt without especialty and for Rents in arrear all Actions of Trespasse quare clausum fregit Actions of Trespasse Trover Detinue and Replevin for taking away Goods and Chattels Actions of account all Actions of the case except Actions for Slander which shall be sued must be commenced and brought within six years after the cause of such Action or Suit accrued if the Plaintiff be then of full age discovert compos mentis at Liberty out of Prison and in England otherwise within such time after he becomes so and not after All Actions of Trespasse for Assault Menace Battery wounding and imprisonment within four years after the cause of Action and not after All Actions of the case for scandalous words within two years next after the words spoken and not after Who may bring Actions and who not IDiots mad men or such as have lucida intervalla such as are deaf and dumbe or any other man woman or child except persons disabled by Law being wronged may bring the proper Action appointed for remedy in that case and all or any of these wronging others may be sued And if an Idiot sue or be sued he must doe it in person An Infant must sue by Prochein amy and being sued must defend by Guardian A Feme covert cannot sue but with her Husband An outlawed person is disabled to sue any Action against any man in any Court of Law or Equity yet as Executor he may sue because it is not in his own right but in trust for another but any man may sue him by Coo. Sup. Litt. 128. A man that is attainted in a Praemunire may not sue in any Action Idem 129. And a man that is a convict recusant is disabled so long as he so continues No Barretor can maintain any Action in this Court nor have Judgment unlesse it be required by all the Suitors West 1. cap. 3. But note all these disabilities remain during the continuation of the same impediment Of Pledges in this Court PLedges are absolute except it be for Forrainers or such as live out of the County or out of the Jurisdiction of the Court or such as are unmarried that have no goods distrainable and it is if these be Plaintiffs but if the Defendant should non-suit the Plaintiff and have Judgment against the Plaintiff and his Pledges I never yet saw the forme of the Judiciall Precept that ever issued out to levy the costs upon the Pledges goods Of the Proceedings in the Court BEcause I would not have the Country and young Practisers ignorant of the Proceedings in the Court which is the life of practice I thought it necessary to make an Abridgment of the terms of Law now used in the Proceedings And first of Appearance because it is the first thing done after goods attached The first thing the
Defendant in any Action or Suit is to do is to appear and shew himself in person or by an Attorny in the Court to answer the Action and defend the Suit He may also appear by an Essoin which is an excusation coming from the French word Exoine it doth delay the cause a Court day longer the common Essoin is de male vener and if he do not appear the next Court then it passeth by default Judgment entred and Execution issues out against his Goods and Chattels But after the Defendant hath once appeared in the Court by an Attorny there shall be no Essoin allowed But if he appear neither by an Attorny nor by Essoin then further Processe issues out against his Goods and Chattels viz. The Precept of Duces tecum and attachment and Distresse upon attachment infinite untill he do appear After the Processe executed the next Court the Plaintiff is to appear and file his Declaration to shew his cause of Action or matter of complaint in which must be shewn who complaineth and against whom for what matter how and in what manner the Action grew between the parties and at what time and place the wrong was done and in conclusion he must aver and profer to prove his Suit and shew the damage he hath sustained by the wrong done unto him Speciall care ought to be had that it be drawn in manner and form yet by the Statute of 36 E. 3. cap. 15. A Declaration shall be good if it have matter of substance though the terms he not apt however to avoid doubts and that the Attornies may not depend altogether upon uncertainties let them be diligent in taking right and full instructions from their Clyents and inform themselves of every puntilio which may be materially incident to the case that so they may know what manner of Action is most proper to be brought on the behalf of their Clyents In some cases manner and form is chiefly to be looked at but in other some not altogether so materiall As if an Action of debt be brought of the sale of a Horse for five pounds where the bargain was for two horses the Defendant pleads that he oweth him nothing in manner and form the Jury ought to find for the Defendant for that that the bargaine was for two horses for five pounds fo manner and form there is materiall and parcell of the charge and so it is in every case where the Action varies from the bargain or speciall matter But if an Action of the case be brought by the Husband alone upon an Assumpsit to him by R. the Desendant saith he did not assume in manner and form and the Plaintiff gives in evidence of an Assumpsit made to his wife and his agreement to it afterwards this is good and manner and form is not materiall If an Action be brought before there is any cause of Action the Declaration is insufficient But if a Trespasse was done the fourth day of May and the Plaintiff declareth the same to be done the fifth or the first day of May when no trespasse was committed yet if upon evidence it salleth out that the Trespasse was done before the action brought it sufficeth 19 H. 6. 47. 5 E. 4 5. 21 E. 4. 66. And Littleton saith That the Jury may finde the Defendant guilty at another day then the Plaintiff supposeth for the Law of England respecteth more the effect and substance of the matter then every nicity of forme and circumstance Apices juris non sunt jura Note that in actions of debt upon Emisset for Wares for Money or other things lent upon an In simul computassent actions of Trespasse Battery or upon the case c. you are not tyed to lay the certaine day but you may lay it any time after the cause of action accrued If an action upon the case be brought upon an Assumpsit the Plaintiff must declare upon the whole promise made and not upon part of it else the Declaration is not good Mich. 22. Car. b. r. If there be words in a Declaration which have no signification the words shall be adjudged to be void words and shall not hurt the Declaration but the Declaration shall be taken as if those words were left out of the Declaration Hill 23. Car. B. R. Pasc 24. Car. B. r. A Declaration ought not to shew a thing by implication it must be set forth expressely If the Plaintiff do alter his Declaration after the Defendant hath pleaded to it the Defendant may alter his Plea For by the amendment of it it may be so altered in matter that it may require a different answer from what was sormerly pleaded and in that case if he should not amend his Plea he might be triced sor want of a good Plea Prac. reg fo 235. A Declaration is sometimes called a Count as Count in debt Kitch 281. Count in Trespasse Brit. cap. 26. Count in an Action of Trespasse upon the case for a slander Kitch 251. But a Count is more properly used in Reall than Personall Actions And a Declaration more applyed to Personall than Reall F N. B. 18. a. 60. D. N. 71. a. 191. c. 217. a. If after Processe executed the Plaintiff do not appear and file his Declaration and the Defendant doth appear upon such default the Plaintiff is non-suited and the Defendant may have Judgment and Execution for his costs In every case where the Plaintiff may have costs against the Defendant there if the Plaintiff be non-suit or a Verdict passe against him the Desendant shall have his costs as in Trespasse Debt Covenant by Specialty or upon Contract Detinue Accounts Actions upon the case or upon the Statute for personall wrongs 23 H. 8. cap. 15. Administrators nor Executors shall not pay any costs neither upon Non-suit or Verdict because their Actions are brought upon Debts or Contracts not made between them and the Defendants But if they bring Actions for things done to themselves as for the taking away of goods from them c. and they be Non suit or Verdict passe against them in this case they shall pay costs After the Plaintiff hath appeared and Declaration filed upon the appearance of the Defendant Emparlance is to be entered Emparlance is when the Defendant being to answer the Suit or Action of the Plaintiff desireth some time of respite to advise himself the better what he shall answer being nothing else but a Continuance of a cause till a further day Now to demonstrate what the word Continuance signifieth it is after a Suit is begun and the Plaintiff hath declared he must continue his Suit from Court day to Court day or else the adverse party may take advantage of it and this is called a Continuance being but onely a proroguing of a Suit from time to time to keep it in being And this is by the Act or order of the Court and
and truly try this Issue between party and party according to your Evidence so help you God And as they are sworn enter by every mans name Jur. viz. juratus est he is sworn Being all sworn bid them stand together to hear their Evidence Then swear the Witnesses The Evidence that you are to give to this Inquest touching the matter in variance shall be the truth the whole truth and nothing but the truth so help you God Then let the Jury depart from the Bar to agree upon their Verdict At their return command the Bayliff to call every one by their names and count them Then aske them if they be all agreed on their Verdict Jur. yea Who shall say for you Jur. The foreman Then call the Plaintiff A. B. appear or thou loseth thy Plaint three times Then aske the Jury if they will stand to their Verdict Jur. yea Whether do you find for the Plaintiff or for the Defendant Jur. for the Plaintiff What damages Jur. 2 d. What costs of Suit Jur. 2 d. Harken to your Verdict this you say you find for the Plaintiff and assesse damages 2 d. and costs of Suit 2 d. so say you all Jur. yea Then bid the Plaintiff pay the Jury If the Verdict find matter incertainly or ambiguously it is insufficient and no Judgment ought to be given thereupon as if an Executor plead plene administravit viz. fully Administred of all the goods and Chattels which were of the Testator and issue is joyned thereupon and the Jury find that the Defendant hath goods within his hands to be administred but find not of what value this is incertain and therefore insufficient A Verdict that findeth part of the issue findeth nothing for the residue this is insufficient for the whole because they have not tryed the whole Issue wherewith they were charged But if the Jury give a Verdict of the whole Issue and of more c. That which is more is Surplusage and shall not stay Judgment for utile per inutile non vitiatur but necessary incidents required by the Law the Jury may find The Court being ended adjourn the Court to another day to be kept commanding the Bayliff to make Proclamation O yes c. and say All manner of persons that have any more to do at this Court let them come forth and they shal be heard otherwise they and every one else may depart for this time and keep their houre here on Munday the fourth day of August next by nine a clock in the morning c. Now the Court being done and the Defendant condemned by Verdict then Judgment being entred a Fieri facias shall be awarded to make Levy of his goods and thereupon the Defendants goods shall be taken praised and sold to satisfie the party Plaintiff and if the Defendant hath no goods whereupon Levy may be made then the Plaintiff rests without remedy in this Court Of Distresse COnsidering the many lacrymable wrongs the Country hath sustained by those Locusts that litigious generation of men a clamorous company qui ex injuria vivunt Seminaries of discord worse then any polars by the high way side monstra hominum rabulas forenses irreligious harpies scraping griping catchpoles Bayliffs and corrupt practisers and how much the ignorant people are abused and deceived yea many times as the sad experience of many will inform us ruined and utterly undone by them they being the sole causes of those ignominious aspersions cast upon the Court The advantage that it would produce to the Common-wealth is in-explainable if the Statute of 1. of H. 5. cap. 4. were observed that is that Sheriffs Bayliffs one year not to be in that Office in three years after because by their continuall being in that Office they grow so crafty and cunning that they are able to deceive the Sheriff and ruine the whole Country Therefore that the Country may not be altogether ignorant of their seeming authorized Actions I will declare what and when they may distrain and what and when they may not But first to declare what a Distresse is A Distresse is either said to be reall that is when Land is distrained upon a grand cape or petit cape of which we have nothing to say here or it is said to be personall where moveable things are distrained and this is that we are to speak unto Therefore a Distresse is where one doth take and distrain the Beasts Cattell and other things of another man in some ground or place for debt rent or other duty behind or for some wrong or damage done The Sheriff nor his officers cannot break a mans house in the night time to execute any Processe or to do any ministeriall act for the Law giveth no colour to break a mans house by night None can be distrained that are out of the Jurisdiction of the Court Marl. cap. 2. No Distresse can be made in the night but for Damage feasant The Bayliff may attach a man by his goods citing him to appear and answer such a day at such a mans Suit in such a Court and for such a cause Or he may onely give the Defendant warning in the presence of two others to appear such a day in such a Court at such a mans Suit it is sufficient And if an Attachment be made it must be of such goods of the Defendants own proper goods as are movables viz. by meer Chattels personalls which may be forseited by Outlawry and not immovables A Bayliff cannot sever horses joyned to a Cart. Sheep may not be distraind if there be a sufficient Distresse besides No man shall drive a Distresse out of the County where it was taken A Distresse may not be impounded in severall places upon pain of five pounds and trebble damages A man cannot work goods distrained nor convert them to his own use The goods of any man may be taken in any place within the County in another mans house or ground as well as his own If a Bayliff distrain or attach the horse of a master where the Plaint is against the servant Trespasse lyes for the Master against the Bayliff for the Bayliff ought to take notice at his perill whose goods he distrains or attaches 13 H. 4. fo 2. 14 H. 4. 24. 11 H. 4. 90. Dr. and St. 139. After Distresse or Attachment made if the Bayliff doth not return his Precept the next Court Trespass lyes against the Bayliff for the Defendant and an Action of the case lyes against him for the Plaintiff for not returning of the Precept 10 E. 4. fo 18. 3 H. 7. fo 3. By Choke If one take Beasts in the name of a Distresse he ought to put them in an open Pound for that he who is distrained may give to them sustenance but if he distraine dead Chattels he may put them where he will but if they spoyl in his default he must answer for them 19 E. 4. fo 2. b. If goods distrained
chattels which late were W. W. deceased at the time of his death and now remaining in the hands of I. W. Executor of the Testament of the said W. W. and not administred of as well a certain debt of 40 l. which T. L. in my County Court by vertue of a Writ of Justicies recovered against him as also 20 s. which to the said T. L. in the same Court was adjudged for his costs and damages which he sustained by reason of the detaining of the said debt If the said I. W. Executor of the Testament of the said W. W. have so much goods or chattels in his hand which were the said W. W. at the time of his death sufficient to satisfie the debt and damages aforesaid If he have not so much goods or chattels in his hands which were the said W. W. at the time of his death sufficient to satisfie the said T. L. of the debt and damages aforesaid That then you or some of you levy of the proper goods and chattels of the said I. W. the damages and costs aforesaid so that I may have the said mony at my next County Court to be holden at the Castle of Y. c. to render to the said T. L. the debt and damages aforesaid whereof he is convict And this given under the Seal of my Office the c. I. B. Esq c. to all and singular my Bayliffs c. greeting I command you and every of you that of the goods and chattels of T. O. you levy 20 s. which S. D. in the County Court according to a Statute provided in that case were adjudged for his costs and damages which he sustained in his own defence in a certain Plea of debt which the said S. D. against the said T O. of late brought because the said T. O. did not prosecute his Suit but was thereupon non-suited and convicted so that I may have the mony at my next County Court at the Castle of Y. holden on Munday c. next to satisfie the aforesaid S. D. of his costs and damages aforesaid And this c. Given under the Seal of my Office the c. I. B. Esq c. to all c. greeting I command you that of the goods and chattels of T. C. you levy 40 s. which to P. P. in my County Court were adjudged for his damages which he sustained in his own defence in a Plea of debt by the said W. against him the said P. P. lately brought whereof the said P. P. was quieted and by Verdict of his Country whereof the said T. C. was convict have you the mony at my next County Court to be holden at the Castle of Y. on Munday c. to satisfie the said P. P. of his damages aforesaid And this c. given under the seal of my office c. I. B. Esq c. to all c. greeting I command you and every of you joyntly and severally that of the goods and chattels which late were of E. S. Esq who dyed intestate as it is said and now in the hands of R. M. Gent. and A. his wife Administratrix of the goods and chattels which were the said E. S. at the time of his death remaining to be administred you cause to be made as well a certain debt of 4 l. which I. W. hath recovered against the said E. S. in my County Court as 30 s. which to him the said I. W. in my same Court were adjudged for his costs and damages which he had by occasion of detaining of the same debt by vertue of a Writ of Justices so that I may have the said mony at my next County Court to be holden at the Castle of Y. c. to render the aforesaid I. W. of the debt and damages aforesaid whereof the aforesaid E. S. was convict And whereupon it was considered in my same Court that the aforesaid I. W. should have Execution against the aforesaid R. M. c. of the debt and damages aforesaid of the goods and chattels aforesaid by his the said R. M. his default And this given under the seal of my office the c. I. B. Esq c. to all singular my Bayliffs c. greeting I command you and every one of you joyntly and severally especiall to F. P. Bayliff of the Liberty of S. and his Deputies who hath the goods taken upon an Execution issuing out of this Court that those twenty weather Sheep of which each you cause to be apprised at eight shillings of the goods of I. C. Esq which you took and remain in your hands unsold for want of buyers as you your self returned to my Court you expose to sale and the mony thereof which in the whole amounts to eight pounds you have at my next County Court at the Castle of Y. holden on Munday the tenth day of May next to render to W. G. which to him the said W. G. in my Court were adjudged for his damages which he had by occasion of a certain Trespasse to him committed by the aforesaid I. C brought whereof he is convict And this given under the Seal of my Office the 18 day of October in the year of our Lord 1657. By the Sheriff Of a Scire Facias IF a Fieri facias do not issue out within a year and a day after Judgment entered it cannot be had till there be a Scire facias first sued out to summon the Defendant to shew cause why Execution should not be done and if now he neglect to answer or cannot be found to be summoned then a second Judgment shall be given that that Execution be done of the first Judgment If Judgment be given against a Testator albeit it be within a year after Judgment had yet there must first issue out a Scire facias against the Executor or Administrator before Execution to shew cause why it should not be had Or if a man recover against a Feme-sole and she become covert viz. take a Husband within the year and the day then he that shall recover must have a Scire facias against the Husband Scire facias post diem annum I. B. Esq Sheriff c. greeting Whereas W. F. of late in the Court of the aforesaid County by Judgment in the said Court of the County aforesaid held at the Castle of X on Munday the tenth day of February 1654. before the Suitors of the said Court recovered against G. L. as well a certain debt of thirty two shillings which the said W. F. in the same Court recovered against him as thirteen shillings and ten pence which to the said W. F. in the same Court were adjudged for his damages which he sustained by the occasion of the detaining of the debt of which he is convicted for as by the proceedings from thence in the same Court residing notwithstanding the manifest Execution of the aforesaid Judgment remains to be done as by
County of Y. there held c. the aforesaid I. H. and the rest of the Defendants within named the fifth time exacted were at which day the aforesaid I. H. appeared and rendred himselfe to the prison of his Highness c. of the Castle of Y. whose body before the Iustices within written at the day and place within contained ready I have as within to me is commanded but the rest of the Defendants within named appeared not therefore c. as above And besides I. S. who hath rendred himself to the prison of c. of the Castle of Y. whose body before the Justices within written at the day and place within contained ready I have as this Writ exacteth and requireth And besides I. C. who dead is will not appear therefore by Judgement c. and the aforesaid T. C. waved is in presence of T. C. and F. W. Coronors of c. of the County aforesaid At the County c. 1. 2. 3. 4. exacted he was and hath appeared and rendred himself to the prison of c. of the Castle of Y. where so sick he is that fore fear of death him before the Justices within written at the day and place within contained have I cannot The Return of the Writ of Proclamation BY vertue of this Writ to me directed at my County of Y. held at the castle of Y. within written on Monday c. the year c. within written the first time to be proclaimed I caused And at my County of Y. held at the Castle of Y. aforesaid in the said County of Y. on Monday c. the year c. within written the second time to be proclaimed I caused as also at the general Sessions of the peace held at Skipton for the West riding of the said County within written on Tuesday viz. the 12. day of Sept. aforesaid the year c. within written publickly to be proclaimed I caused that I. C. and all other the Defendants within named themselves to render to the within named Sheriffs of London so that the same Sheriffs have their bodies before the Justices within written at the day and place within contained as this Writ exacteth and requireth The manner of proceeding upon the Writs of Recordare Pone Writ of False Judgment c. in the Common Pleas after removall out of the County Court YOu must repair to the County Clerk or his Deputy and demand a Return of the Writ of Recordare or Pone If upon the return the Defendant appear then must you declare and when your Declaration is drawn enter it upon a roll in one of the Prothonotaries offices and see that it be docqueted together with the number of the roll If the Writ be returnable in the begining of a term especially in issuable terms the Desendant is to answer the same term unless the Desendant hath Emparlance to plead until the following term Rules to answer must be entred in the Remembrance in the Prothonotaries Office entring in the Margent or over the head of the Rule that if the Defendant do not plead within some few dayes let Judgement be entred And if no plea be brought in within the time then may you sign Judgement with the Prothonotary in default of answer If the Defendant appear not upon the return of the Writ then may the Plaintiff have a Procedendo to carry the cause back again into the County Court If the Plaintiffs Attorney declare not against the Desendant upon his appearance within a reasonable time of the Term then may the Defendants Attorney enter a Rule in the Bill of Pleas against the Plaintiff to declare and if he declare not then may he enter a Non prosec and sign it with the Prothonotary and costs given for the unjust vexation If the Defendant plead generall issue then must the Attorney for the Defendant set his hand to the Doquet book of the Plaintiffs Attorney who draws up the plea and makes a Copy of the issue and delivers it to the Defendants Attorney and then they usually give notice of triall If the Defendant plead specially he is to bring it to the Plaintiffs Attorney under a Serjeants hand and if the Plaintiff reply specially it must likewise be under the Serjeants hand the like upon a Demurrer to a Declaration and Rejoynder in Demurrer If your triall be by Nisi prius at the Assizes in the Countrey and the Jury appeare not full upon the Pannel then may you require a Decem tales de circumstantibus viz. ten of the standers by to fill up the Jury or more or lesse as is requisite which Tales must be mentioned upon the return of the Postea and the Judgment upon it in the Issue Roll. Having entred your Declaration with the Issue joyned in the Prothonotaries Office then make out a Venire facias upon your Issue and get signed with the Prothonotary and seal it then get it returned by the Sheriff of the County where the action is laid and upon the return of it sue forth an Habeas corpora and deliver the same to the Sheriff to summon the Jury and get it returned before the Assizes In suing forth your Nisi prius ingrosse your Record according to the copy of the Issue made up and the entry of it upon the Roll in the Prothonotaries Office and examine it if it be upon an Issue joyned the same Term whose hand must be to it then carry the same to the Clerk of the Treasury to signe and make up the Record If the Issue was entred of a Term past then must you deliver the paper Book of the Issue to the Clerk of the Treasury to examine the same by the Roll and to make up the Record which must be signed by him then must it be sealed with the Lord chief Iustice of the Court and then deliver it together with the Hab Corp Iur. returned by the Sheriff to the Clark of the Ass for that County where it is to be tried paying the Judges Then retain Councel and have your witnesses ready for the trial The triall being had and verdict passing for your Client the next Term you are to call of the Clerk of the Assizes for a return of the Postea and thereupon the Prothonotor will assesse costs and cause Judgement to be entred upon which you may have Execution by Capias ad satisfaciendum Fieri facias or Elegit c. according as you desire and as the nature of the action brought doth allow or require Note that a Capias ad satisfac is only against the body who must be imprisoned until satisfaction be made and if the Defendant cannot be found the Plaintiff cannot have another Execution 20 E. 2. for he may chufe at the first whether he will have a Capias or an Elegit but if he take the Capias he shall not have the Elegit afterwards nec è converso 15. H. 7. 15. The Writ of Fieri
same A. B. saith that the said Record is vicious and much defective and that false judgment is done to him in the said plaint in this that in the Record no mention is made whole that Court of the Honour of P. is and in this that no mention is made who is Lord of the said Court nor who are Suitors of the same and also in this that the Jury have not found that the said A. B. converted the same peece of Cloth to his proper use and so the same A. B. saith that divers ways in the said Court false Judgment is done to him in the said plaint And prayeth that the said Judgement for those divers errors and others being in the Record as false and erroneous may be revoked and taken for nothing And that he unto all which he by reason of the said false judgement lost may be restored And that the Justices here proceed to the examination of the premisses And because the Justices here c. SOME SELECT PRESIDENTS OF DECLARATIONS AND PLEADINGS Incident and belonging to this COURT Debt Executor against an Executor upon a Bill E. F. Executor of the last Will and Testament of I. F. deceased by vertue of a Writ of Iusticies to the Sheriff of the County aforesaid directed by I. S. his Attorney complains of M. VV. Executor of the last Will and Testament of R. VV. late of T. in the County Y. husbandman deceased otherwise called R. VV. late of T. of Y. Husbandman deceased of a Plea that he render unto him 7 l. of c. which he unjustly detains from him c. for that whereas the said R. VV. in his life time that is to say the 20. day of c. year c. at the Castle of Y. in the County of Y. and within the liberty and jurisdiction of this Court by his bill obligatory sealed with his Seal and here in Court produced bearing date the day and year abovesaid acknowledged himself to be indebted to the said I. F in his life time the whole and just sum of 7 l. of c. to be paid to the said I. F. his heirs executors administrators or assigns upon the third day of May next ensning the date of the said Bill and for the payment thereof the said R. VV. then and there bound himselfe his executors administrators and assigns Neverthelesse the said R. VV. in his life time though often thereunto required the said 7 l. to the said 1. F. whilest he was living hath not paid neither hath the said M VV. Executor of the last Will and Testament of the said R. VV. after his death paid the same to the said E. F. Executor of the last Will and Testament of the said I. F. to which said M. VV.'s hands came all and singular the goods and chattels which were the said R. VV.'s in his life time sufficient to satisfie all the debts which the said R VV. at the time of his death owed to any person or persons whatsoever as also to satisfie the said E. F.'s debt but the said R. W. whilst he lived refused to pay the same to the said I. F. in his life time and the same M. W. likewise after the said R. W.'s death refused to pay the same to the said E. F. after the death of the said I. F. and still refuseth so to do and unjustly detains the same by reason whereof the said E. F. saith he is damnified 10 l. and thereupon produceth this suit c. And the said E. F. produceth here in Court the said letters testamentary by which it appears the said E. F. to be Executor of the last Will and Testament of the said I. E. deceased c. Vpon a Bill to be paid at the day of marriage and issue upon it T. N and E. his wife Administratrix of the goods and chattels which were of I. B. deceased complains by S. D. his Attorney of I. H. of C. in the said County Gent of a Plea that he render unto them 5 l. which he unjustly detains c. for that whereas the said I. H. such a day year and place by his certain bill obligatory with his seal sealed and here in Court produced the date whereof is the same day and year For and in consideration of one Gold-ring with a certain Stone called a Diamond in the same Ring fixed of the aforesaid T. B. in his life time received the day of the making of the aforesaid bill did acknowledge and grant to and with the aforesaid T. B. in his life time that he the said I. H. his executors or assignes would pay or cause to be paid to the aforesaid T. B. his Executors or assignes for the same Ring at such a day and time as he the said I. H. should be wedded or married or at any other time after his marriage whensoever he should be required by the aforesaid T. B. his Executors or assignes or by him that should bring the said bill the said sum of 5 l. to his or their use the aforesaid time to be paid and the same T. N. and E. in fact say that the aforesaid I. H. after the making of the said bill to wit such a day year and place within the Parish Church of H. did take to wise one I. D. by which the action did accrew unto the said T. R. in his life and to the said E. after the death of the said T. B. whilst she was sole and to the said T. N. and E. after espousals between them celebrated to require and have of the aforesaid I. H. the same 5 l. Yet the aforesaid I. H. although often required the aforesaid 5 l. to the aforesaid T. B. in his life time or to the aforesaid E. whilst she was sole to whom the administration of all the goods and chattels which were of the aforesaid T. B. the time of his death such a day year and place was committed to the aforesaid T. N. and E. after espousals between them celebrated hath not rendred but the same to render to them hath denied and the same to them the said T. N. and E. as yet to render doth deny and unjustly detain whereupon they say they are damnified and have damage to the value of 10 l. and thereupon they bring their action c. And they bring into Court here the letters of administration c. The Defendant pleads that he was within age at the time of the making of the Bill AND the aforesaid I. F. by R. B. his Attorney comes and defends the force and injury when c. and sayes that the aforesaid N. and E. ought not to have their action aforesaid against him because he saith that he at the time of the making of the Bill aforesaid was within the age of one and twenty years and this he is ready to aver whereupon he demands Judgment whether the aforesaid T. N. and E. ought to have their action aforesaid against him c.
Lord Protector and for the Lord of this Court or Law day draw near and hear your charge all the rest keeping silence whilst the charge is in reading upon pain and peril that shall fall thereon Before the charge gather the common fine which the tenants do pay every Leet or Law day acording to the custome of the Mannor The Exhortation before the Charge My Masters YOU of the Jury the charge which you by oath have promised to observe toucheth and concerneth divers good Lawes and Statutes instituted and made for the preservation of the publick Peace and also for the private tranquillity of every one of you and your posterities which matters the Sheriffe or the Lord of this Franchise considering and wishing your security and desiring likewise good orders to be observed and kept among you that right and equity may be administred to every of you hath therefore caused his Highnesse the Lord Protectors Leete to be summoned and kept here this day I will therefore by your favour before I enter upon the principals of your charge declare unto you by what authority you are brought hither and wherein you are obliged to observe The causes hereof are two 1. The first is for that his Highnesse and royall predecessors have given and granted unto the Sheriffe or Lord of this Mannor authority and power to keep a Leet or Law day twice in the year at which Leet or Law-day all the Headboroughs Tithingmen Dezmers and all other persons that are resident or inhabiting within the Jurisdiction of this Leet being above the age of twelve yeares and under the age of sixty are bound by the Lawes of the Commonwealth to appeare to the intent that the Lawes and Statutes may be there published and declared so that knowing the dangers of the not observing of them they may avoid divers inconveniences which otherwise would have much prejudiced them and further to inquire of the breakers of the same and present them that such offenders may receive condign punishment The other cause or authority is for that you being the Lords tenants are bound by reason of your tenure at the Lords Court Baron when it shall happen to be kept according to law that is to say at every three weeks end or according as the custome is and being here by these two authorities you are bound to serve in all such things as you are legally and joyntly charged withall as well concerning His Hignesse the Lord Protectors Leet as the Lords Court-Baron Now to the intent that you may have better cognizance of your oath I think it convenient with your patience to insist a little upon it What things are to be considered by a Jury in swearing IN swearing three things are principally to be considered 1. That you swear to seclude all favour and affection to the parties not fearing the rich nor pitying the poor not considering the simplicity of any person nor the smallnesse of the offence but having an affection to truth before your eyes declare that which is truth to your knowledge and no further 2. The second is you must swear in righteousness viz. for the very zeal and desire you have in declaring the truth for the executing of justice for the observing of Covenants honest promises Statutes Lawes and good Customes and having a respect in doing and performing these things you do that which tends to the glory of God the honour of the Lord Protector the preservation of the People and Common-wealth which kinde of swearing is the mandate of the Almighty Thou shalt feare the Lord thy God and serve him and shalt sweare by his Name That is we must onely serve and feare him acknowledging his holy Name which is done by a legall swearing It is also commanded in many places of the divine Writ but conditionally to wit we must sweare in truth in Judgment and righteousnesse c. 3. In swearing and taking an Oath you must do it with Judgement not rashly nor unadvisedly but soberly and with caution considering what an oath is which in briefe I will declare to you An Oath is the recording or calling to witnesse the name of God to confirme the truth of that we say and which is according to the testimony of St. Paul An oath for confirmation is among men an end of strife For in ambiguous and obscure matters where the knowledge of men is brittle and faileth we betake ourselves to God that he which is the only Truth may give a Testimony unto the truth and he that useth God for a Witnesse doth also call for revenge of perjury at his hands if he deceive and speak not the truth now at the imposition of your hands upon the Booke you sweare truly to enquire and make a true presentment of these things wherewith you are charged and not to let from declaring the truth either for favour fear affection or envy of any person consider that in this Book is recorded Gods eternall verity whereby we have remission of errors and offences and an enjoyment of eternall salvation I am confident of your knowledge of the plagues and threats in the Gospel to the obstinate and perjured bearers of false and unjust testimony condemners of innocent and guiltlesse persons so that it you voluntarily perjure your selves you absolutely deny God his mercy truth and the merits of our Saviour betaking your selves and adhering to that Destroyer of mankinde the Devil the author of all pejury and persidiousnesse and by forswearing and forsaking the truth you forsake Christ the light and truth it selfe And although that perjury doth escape sometimes unespied and punished and be kept secret betweene some of you and others yet your hearts will judge and repute one another false and be suspitious of each others actions But God that faithfull one of Israel will not deny himselfe neither will he suffer the profanation of his Name to go unpunished when at the last day the secrets of all mens hearts shall be apparent then the truth and your Consciences shall be your accusers and Christ the righteous Judge shall justly condemn you to eternall death and damnation Which sin of perjury the most High by his Prophet hath threatned to punish Thus referring this to your serious considerations and not to trouble you with prolixities Verbum sat sapienti a word 's enough to the wife I will proceed and declare to you the Articles of your charge The Charge of the Court. YOu must understand That High treasons petty treasons and Felonies which are against His Highnesse the LORD PROTECTOR are to be enquired of and presented in this Court but not punishable here the which offences you must set down in writing indented and sealed the one part to remain with the Steward the other with the Jury and the same must be delivered to the Justices of the next Assizes holden within the County The Charge of the Court-Leet Judgment 1. You shall first
the King c. And lastly That the same Court of the Kings did judge not onely according to meer right and Law but also after equity and good conscience And after this order and in these two Courts was all Justice administred This Court continuing untill the time of William the Conqueror and ever since during the times and raignes of the ancient Kings and doth yet continue in manner the same forme and substance that it then was and will doe in despite of those Sycophants that have had their Primum mobile from it and now endeavour its subversion that Viperous brood of Birds that have so much defiled their owne Nest that the whole Countrey laughs at their folly and that the pleas ought no more to be taken from it now in our dayes without cause than they ought then to have been which may evidently be proved by those ancient Writs of Pone Recordare Writ of false Judgment and Accedeas ad curiam which are yet in use to this day and to this onely end to remove suits upon cause out of this Court into superior Courts But because this requireth great search of Records to make any further progression whereunto I have no accesse I must leave it to such whose abilities are more strenuous to travell in that so intricate a path This Court is no Court of Record but onely a Court Baron though it had in ancient times the cognition of great matters as may appear by Glanvile lib. 1. cap. 23. 4. by Bracton and Britton in diverse places and by Fleta lib. 2. cap. 62. but it was abridged by the Statute of Magna Charta cap. 17. and much more by 1 E. 4. cap. unico therefore pleas holden in this Court by Plaint nor pleas holden by Writ of Justicies are not taken as matters of Record for those pleas are holden by reason of the Court which the Sheriff holdeth by reason of his Office This Court as Dalton reporteth in his Office of Sheriffs was ordained for the Sheriff to hold Pleas there for particular or private matters under forty shillings between party and party It is now as it was alwaies holden once every moneth upon a day certaine the moneth being computed according to twenty eight dayes in the moneth and not according to the Kallander 9 H 3. c. 35. 2 E. 6. c 25. It holdeth no plea of debt or damages to the value of forty shillings or above because a Fine is due thereby to the Lord Protector yet if the debt be forty shillings or above and the Plaintiff will acknowledge in his Declaration the receit of so much as to bring it within forty shillings in this case the plaint is good But if the debt be above forty shillings as five pounds the Plaintiff cannot divide this into five severall actions to make this Court hold plea of it for in this case the Defendant may wage his Law And of Debt Detinue Trespasse and other actions personall above forty shillings the Sheriff may hold plea by force of a Writ of Justicies to him directed for that is in nature of a Commission to him and is not returnable Neither doth this Writ alter the nature of the Court for therein the Sheriff is not Judge but the Freeholders or Suitors yet all Judgments shall be pronounced by the Sheriff This Court may be kept at any place within the County at the pleasure of the Sheriff but not out of it Yet the Sheriff of Northumberland by the Statute is to keep his County Court in the Towne or Castle of Alnewicke and in no other place The Sheriff of Sussex by the Statute is to hold his County Court one time at Chester and the other time at the Burrough of Lewes and so to be kept alternis vicibus for ever And also the Sheriff of the County of Chester is to keep his County Court in the Shire Hall of the sayd County Daltons Office of Sheriffs fol. 157. 158. To this Court all persons dwelling within the County owe suit by reason of their resiance No Fine can be imposed in this Court upon any offendor because it is no Court of Record Co. 8. 41. 60. 11. 43. Fitz. 73. d. But a man may be amerced for a contempt or a disturbance of the Court in the presence of the Court. This Court will entertaine no suits for Charters of Land or for Inheritance or for Freehold of Land or any titles of Land or to make severall plaints upon one entire debt by Bond or Trespasse Vi armis or actions touching life nor actions to compell one to render an account The Office of the County Clarke THe Sheriff being elected which is done yearly in the morrow after All soules in the Exchequer Chamber by the Statutes 9. E. 2. 14 E. 3. cap. 7. And his Letters Patents do commonly beare date the sixth day of November 1 2 E. 4. e. 1. unlesse it be in cases of necessity that the Court is sorced to adjourne it Crook fol. 595. before the next County day after his election and discharge of the old Sheriff he ought to be very diligent in deputing and constituting a County Clarke such a one as is sufficient and able to keep the Court that no corrupt dealing be in it as he will answer the contrary and that he be very skilfull in entring the proceedings in it He ought to be endued with these qualities according to the description of Fleta Provideat sibi Vice com' de Clerico circumspecto fideli viro provido discreto gratioso humili pudico pacifico modesto qui in legibus consuetudinibusque provinciae officio Commit ' Cleric ' se cognoscat jura in omnibus teneri affectei quique sub-balivos in suis erroribus ambiguis sciat instruere docere c. Which is thus Paraphrased That a County Clarke ought to be endued and qualified with circumspection fidelity providence humility peace and modesty and must know himselfe or be expert in the Lawes and customes of the Countrey and to have ability to instruct or direct the Bailiffs or other Ministers in dubious things wherein they may erre He must neither be attracted by price nor lucratory corruption nor any sinister affection to wander out of the way of right Qui nec as Bracton adviseth ad dextram nec ad sinistram vel propter prosperitatem terrenam vel adversitatis metum à tramite justiciae declinet The Sheriff and not the Protector hath power to delegate this Office to whom he pleaseth as it appears in Myttons case in the fourth Reports where Queen Elizabeth by Letters Patents did grant the Office of Clarkship of the County Court of Somerset to Mytton with all Fees c. for life Arthur Hopton Esquire Sheriff of the same Shire interrupted him because it was incident to his Office Mitton complained to the Lords of the Councell and was referred to the two chiefe
day of June in the year of our Lord 1656. By the Sheriff If the Defendant do not appear the next Court after the Distringas executed then farther Processe issueth against him viz. a Duces tecum to cause him to appear If not upon the first Duces tecum he appear you may have an Alias Duces tecum and a Plures Duces tecum ad infinitum untill he appear and no other remedy here The form is thus Duces tecum Y. ss I. B. Esq Sheriff c. to all c. greeting I command you and every one of you joyntly and severally that you bring with you and have at the Castle of Y. at my next County Court all those goods and Chattels of R. B. which late by vertue of another Precept of mine to you first directed you distrained at the Suit of S. D. and that you farther distrain the said R. B. by his other Goods and Chattels in the said County so that he be at the Castle of Y. at my next County Court to be holden on Munday the c to answer to the said S. D. in a Plea of debt And have you then and there this Precept Given under the Seal of my office the twentieth day of July in the year c. If you have your Distringas or Duces tecum speciall Then the form is thus Speciall Y. ss I. B. Esq Sheriff of the County aforesaid to all my Bayliffs and their Deputies in and through the County aforesaid more especially to R. S. and T. W. my Bayliffs in this behalf specially deputed greeting c. Â then proceed as in the former Of the Writ of Justices THis Writ issueth out of the Chancery directed to the Sheriff giving him power to hold Plea in this Court in Actions for forty shillings or above and though it be directed to the Sheriff yet are the Suitors Judges It is called a Justices because it is a Commission and no originall to the Sheriff to do a man Justice and Right and though it be quod Justices B. yet the Sheriff is not Judge therein but the Suitors and a Writ of false Judgment lyeth upon their erroneous Judgment and it requires no return unlesse the Action be removed by a Writ of Recordare and then the Writ must be returned together with the Record The form of the Precept upon the Writ is as followeth Yo. ss G. M. Esq Sheriff of the said County to all and singular my Bayliffs within the said County and to their Deputies greeting By vertue of a Writ of Justicies of Oliver Lord Protector c. to me directed I command you and every one of you joyntly and severally that you or some of you do Justice to I. C. so that he be and appear at my next County Court to be holden at the Castle of Y. on Munday c. to answer unto E. L. in an Action of debt and that you or some of you certifie your doings herein Sealed with the Seal of my office the two and twentieth day of August in the year of our Lord 1657. By the Sheriff A Replevin IF any goods be taken wrongfully as before I have more at large declared then the party grieved may have a Replevin which must be made after this manner Yo. ss G. M. Esq Sheriff c. to all and every my Bayliffs c. greeting Because G. A. hath comed before me and given sufficient security to prosecute his Suit and make return of his goods if return thereof shall be adjudged Therefore by vertue of my Office I command you and every of you that you or some of you Replevie deliver to the aforesaid G. A. two kine which H. H. hath taken and unjustly detained against the said G. A. and his Pledges and also that you summon and take safe Pledges of the said H. H. so that he be and appear at the Castle of Y. at the next County Court there to be holden upon Munday c. to answer the aforesaid G. A. in an Action for the taking and unjust detaining of his said goods and that you or some of you then and there make return of your doings together with this Precept Given under the Seal of my Office c. And if the Cattell be not delivered by vertue of the said Replevin then the Plaintiff may have an Alias Replevin with these words vel causam mihi signifie with which Replevin must be made after this manner Yo. ss Alias Replevin G. M. Esq c. to all and singular my Bayliffs c. greeting Because G. A. hath comed before me and given sufficient security to prosecute his Suit and make return of his goods if return thereof shall be adjudged Therefore by vertue of my Office I command you and every of you as formerly I have commanded you that you or some of you Replevie and deliver to the said G. A. two Kine without delay you cause to be replevied or the cause to me you signifie wherefore my Mandates to you therefore directed execute you would not or might not which H. H. hath taken and unjustly detained c. as before in the other Replevin And if the Cattell be not delivered upon this Replevin nor shew sufficient cause why he did not then the Party may have a Plures Replevin vel causam mihi signific which must be made verbatim as the Alias Replevin was made and if return be made upon any of these Replevins quod averia elongat sunt ad loca sibi ignot ita quod averia ill ' praef G. A. non potuit deliberar then the Plaintiff may have a Withernam which must be made in this manner Yo. ss Withernam G. M. Esq c. to all c. greeting Because G. A. hath com'd before me c. as in the former I command you and every of you as diverse times I have commanded you that you or some of you replevie and deliver to the said G. A. two Kine which H. H. hath taken and unjustly detained and doth unjustly detain as it is said and that you upon diverse of my Precepts for Replevie to be made to you directed we have certified that the same two Kine elongated are to places unknown so that view of the same have you could not therefore I charge and also command that you take in Withernam Chattells to the value of the said two Kine of the Chattels of the said H. H. to be delivered to the said G. A. for the two Kine aforesaid elongated and also that you summon and take safe Pledges of the said H. H. so that he be and appear c. as before in the Replevin Yo. ss Alias capias in Withernam G. M. Esq c. to all c. greeting Because you have at my County Court held at the Castle of Y. on Munday c. the year c. to me returned that by vertue of my Warrant to you many times directed you came to the Pound of H. H. to the place where the
insinuation the aforesaid W. F. hath recovered And because that I will that those things which were in the said Court be rightly done to demand due of the said Iudgment Therefore I command you that by honest and lawfull men of my Bayliwick you give notice to the aforesaid G. L. that he be at the Castle of Y. at my next County Court there to be holden upon Munday the third day of May next to shew if he have any thing to say or no why the said W. F. ought not to have his Levy or Execution against him according to the force form and effect of the said Recovery if it seem expedient to him and have you then and there the names of them by whom you give him notice and have this Precept c. Given under the Seal of my Office the fourth day of Aprill in the year of our Lord 1656. Scire facias against an Executor after Judgment against the Testator I. B. Esq Sheriff c. greeting Whereas N. N. late in the County Court of the said County held at the Castle of Y. on Munday c. before the then Sheriff of the said County by Iudgment of the said Court had recovered against H. N. as well a debt of forty pounds as two and twenty shillings and two pence costs for his damages which he sustained by reason of the detaining of the said debt whereof he is convict as appears by the Proceedings remaining in the said Court And whereas the Execution of the Judgment yet remaineth to be done and the said H. N. since the giving of the Judgment aforesaid is dead as by the intimation of the said N. N. I am informed And because I am willing that those things which are rightly done in the said Court should be duly put in Execution I command you that by honest and lawfull men of the said County you make it known to F. N. Executrix of the Testament of the said H. N. that she be at the next County Court to be holden for the said County at the Castle of Y. on Munday c. to shew if she have any thing or know what to say why the said N. N. ought not to have his Execution against her of the debt and damages aforesaid to be levied of the Goods and Chattels which were of the said H. N. at the time of his death and further to do and recieve c. Given under the Seal of my Office c. Scire facias after marriage I B. Esq Sheriff c. greeting Whereas A. B. late in my County Court held at the Castle c. before the Suitors of the said Court had recovered against C. D. as well a certain debt of forty pounds as forty shillings which to the said A. B. in the said Court were adjudged for the costs and damages which she had by occasion of the detaining of the debt whereof he is convicted as by the Proceedings thereof in the same Court before the said Suitors remaining manifestly appeareth Neverthelesse Execution of the said Judgment remaineth yet undone And the said A. B. since the Judgment aforesaid given hath taken to Husband T. R. as by the allegation of the said A. B. I am given to understand and because I will that those things which are rightly acted in my said Court be duly put in Execution I command you that by honest and lawfull men of your Bailiwick you give notice and make known to the said C. D. that he be at my next County Court holden at c. to shew that if he hath or knoweth any thing to say or no for himself wherefore the said T. R. should not have execution of the said judgement of the debt and damages aforesaid according to the form and effect of the recovery aforesaid if to him it shall seem expedient and have you there the names of them by whom you give him notice and make known to him and have this precept c. Given under the seal of my Office the 4. day of Iune in the year of our Lord 1658. Venire facias Jurator I. B. Esquire Sheriff of the County aforesaid to the Bayliff of the hundred of O or his Deputy greeting I command you and every of you that you cause to come before me or my lawfull Steward by me appointed for the County Court to be holden at the Castle of Y. on Monday the c All those severall persons mentioned in the pannel hereunto annexed to trie such several issues between party and party as shall then and there be given them in charge And hereof you must not fail as each of you will answer the contrary at your perils together with this precept Given under the seal of my Office c. Or thus I. B. Esquire c. These are to require you the said Bailiff to cause to come twelve good and lawfull men of your Bailiwick that they be and appear at the next County Court holden at the castle of Y. on Monday c. by 9 of the clock in the forenoon to trie an issue joined between A. B. plaintiff and C. D. desendant concerning a plea of debt or as the case is And this given under the seal of my Office c. And if a full Iury do not appear then as many as make default shall be amerced and a Decem tales awarded to summon ten more as followeth and the same day given to the first Iury. Decem tales I. B. Esq c. These are to require you the said Bayliss to cause to come ten more good and lawfull men of your Bayliwick that they be here at the next County Court holden at the Castle of Y. on Munday c. with others which to them shall be adjoyned to try a certain Issue joyned between A. B. Plaintiff and C. D. Defendant of a Plea of Debt c. And as many of these as make default shall be amerced and then an Octo tales shall be awarded and if necessity require it afterwards a Sex tales Subpoena or a Warrant to summon Witnesses I. B. Esq Sheriff of the County aforesaid to I. B. I. G. c. greeting To you and every of you I command that all excuses and delayes being set apart you and every of you be and personally appear at the next County Court holden at the Castle of Y. on Munday the 10. day of Iune next to testifie the truth according to your knowledge in a certain Action there depending between A. B. Plaintiff and C. D. Defendant on the part and behalf of the Plaintiff in an Action of debt And hereof fail you not under the forseiture of one hundred pounds each of you And this given under the Seal of my Office the c. A Liberate to deliver goods taken upon Originall or mean Processe I. B. Esq Sheriff of the County aforesaid To all and singular my Bayliffs within the said County and their Deputies especially to A. B. greeting For as much
D. did Essoin because he could not come until the next County Court to be holden at the Castle aforesaid at which said next Court viz. on Monday the 10 day of October then next following in the year abovesaid came the aforesaid A. B. by his Attorney aforesaid and offered himself against the said C. D. in the plaint aforesaid and the said C. D. then and there came in his proper person to answer the aforesaid A. B. in the plaint aforesaid and put in his place I. R. his Attorney against the said A. B. in the plaint aforesaid and by his said Attorney desired of the said Court that the said A. B. should declare against him upon his said plaint and thereupon the said A. B. by his Attorney aforesaid declared against the said C. D. upon the plaint aforesaid in manner and form following A. B. By vertue of a writ of Iusticies by S. D. his Attorney complains of C. D. of an action of trespasse and assault for that the said C. D. the 10. day of October in the year c. at the Castle c. in and upon the aforesaid A. B. did make an assault and affray and him did beat wound and evil intreat so that he did despair of his life and other harms did do unto him to the great damage of the said A. B. wherefore the said A. B. saith he is damnified to the value of 20 l. and thereupon brings this action c. Whereupon at the same Court at the request of the Defendant day was given to the said parties in the plaint aforesaid till the next county Court to be holden before the suitors aforesaid on Monday the 15. day of November then next following saving to the Defendant c. at which day at the said Court before the suitors aforesaid holden at the Castle of Y. aforesaid came aswell the said A. B. by his Attorney aforesaid as the said C. D. by his Attorney aforesaid and then and there the said I. B. Esquire was removed from the office of Sheriff of the County aforesaid and R. L. Esquire was duly elected and did enter into the said office of Sheriff of the County of Y. aforesaid whereupon at the same Court at the request of the parties further day was given to the said parties in the plaint aforesaid until the next County Court on Monday the 13. day of December then next following in the year abovesaid to be holden before the suitors aforesaid saving to the parties c. at which day at the said Court before the suitors aforesaid holden at the Castle aforesaid came aswell the said A. B. by his said Attorney as the said C. D. by his Attorney aforesaid And the said C. D. by his Attoruey aforesaid came and defended the injury when c. And the said Attorney said that he was not informed by his said Clyent of any answer for him the said C. D. to the said A. B. in the plaint aforesaid to be given whereby the said A. B. did remain against the said C. D. thereupon without defence for which the said A. B. ought to recover against the said C. D. his damages by occasion of the trespasse and assault and wounding aforesaid but because it was not known to the Court what damages the said A. B. had sustained by reason of the premises therefore at the next County Court holden at the Castle of Y. aforesaid in the County aforesaid before the Suitors aforesaid upon Monday the 10. day of Ianuary then next following in the year aforesaid it was required by the oaths of I. W. R. S. S. G. M. L. T. P. c. twelve good and lawfull men of the County aforesaid being present in the Court and in the full County sworn to inquire what damages the said A. B. sustained by occasion of the trespass assault wounding say upon their oaths that the said A. B. hath sustained damages by occasion of the trespass assault and wounding to ten pounds and for his costs and charges by him in that behalfe expended to two pence therefore it was considered by the said Court that the said A. B. should recover against the said C. D. his damages and costs aforesaid by the Jurors aforesaid in form aforesaid assessed and also forty shillings by the Court aforesaid to the said A. B. by his assent for increase of costs to him adjudged which said damages and costs do amount to twelve pounds and two pence And the said C. D. in mercy c. In testimony whereof c. The nature of an Accedeas ad curiam THis Writ issues out of the Chancery directed to the Sheriff commanding him to go to such a Court of some Lord or Franchife as Court-Baron or the like being no Court of Record where a Plaint is sued or a false judgement is supposed to be given in some suit which hath been in the Court and by this the Sheriff is there to make Record of the same suit in the presence of the Suitors of the same Court and four lawfull men of the County and of this he is to make a Certificate into the Court above under his seal and the seals of four of the Suitors of the same Court at the day appointed by the writ F. N. B. 71. Plowden 74. Finch 444. This Writ cannot be had without shewing some special cause for the removing of it as that a Freehold is in question there or some forreign plea is pleaded not triable in that Court or such like F. N. B. 70. 119. The County Clerk is to make a precept upon the Writ in this manner Yo ss I. B. Esquire Sheriff of the County of Y. To the Steward and Bailiff of the Court of the Honour of P. greeting I command you by vertue of a Writ to me directed that you take with you four discreet and lawfull Freeholders of the County aforesaid and that you go to the Court aforesaid and in full Court there cause the Plaint to be recorded which is in the same Court without Writ between R S. and G. M. of a certain trespasse upon the case brought by the said R. S. against the said G. M. as is aforesaid And that you certifie the Record to me so that I may have the same before the Justices of the Common Bench at Westminster from the day of the holy Trinity in fifteen days under your seals and the seals of four lawful men of the said Court of those that shall be present at the Record and that you prefix the same day to the parties that then they be there ready to proceed in the said plaint as shall be just and have you the names of the said four men and this Precept fail not hereof c. Given under the Seal of my Office this second day of Iune in the year of our Lord 1656. By the Sheriff Honour of P. ss The Court Baron of G. S. I. K. c. holden at
facias is onely against the goods as Leases for years or moveable goods as Corn Houshold stuffe Cattle Apparrel Money Plate c. and it ought to be sued out within the year after the Judgement Co. 3. 13. After a Fi. fa. a man may have an Elegit but on the contrary after the Elegit he cannot have a Fi. fa. because the Elegit is of a higher nature then the Fieri facias An Elegit is a Writ whereby the Plaintiff is to have Execution of the half of all the Defendants lands and chattels except Oxen and beasts of the Plough till the debt and damages be wholly levied and paid to him and during the term he is tenant by Elegit Terms of the Law The Proceedings upon the Writ of False Judgement YOu must call of the County Clerk for a return of the Writ together with the whole Record of all the proceedings from the original and beginning of the cause in the County Court The Writ being returned you must assign Errors and take Copies thereof and thereupon sue forth a Scire facias to the Plaintiff in the Action to hear Errors To which the Plaintiff may appear and plead the common plea which is that The action nor proceedings in the County Court are in nothing erroneous Then must the Desendant endeavor to get a Rule or day given for the arguing of the same Errors But if the Defendant doth delay and doth not call for a return of the writ nor proceed then the Plaintiff may sue forth another Scire facias against the Defendant to shew cause why he should not have Execution upon the Judgement had in the County Court And if at the Return of the second Scire Facias Errors be not assigned then Judgment is confirmed in that Court into which the Writ is returnable If Errors be found and allowed to be sufficient and good then is the said Judgment to be reversed and made void But if Errors be not found good then is the Judgment in the County Court affirmed and further costs for delay of Execution allowed to the Plaintiff who may presently sue forth Execution out of that Court into which the Writ was returned against the Defendant Note that if the Judgment be reversed and made void yet notwithstanding it takes not away the Plaintiffs cause of action for he may commence a new action against the Desendant for the same cause The same proceedings are upon an Accedeas ad Curiam See the Record upon it The manner and form of drawing up Records upon a Writ of False Judgment and Accedeas ad Curiam THe Sheriff is commanded that if A. B. shall secure the same Sheriff to prosecute his plaint then in his full County he cause to be recorded the plaint which was in the same County by writ of his Highnesse the Lord Protector c. between W. B. and the same A. B. in a certain Trespasse upon the case to the same W. B. by the same A. B. done c. And whereupon the same A. B. did complain that False Judgment was done to him in the same County and that he should have here at this day that is to say Octab. pur under his Seal and by four lawfull Knights of the same County who should be present at the Record and that he should have here the Summoners the names of the four Knights this Writ and another Writ And now here at this day came aswell the same A. B. by Simon Dunn his Attorney as the said W. B. summoned c. by Phit Prince his Attorney And the Sheriff to wit Geo. Mar. Esquire now returneth that the same A. B. had found to the same Sheriff Pledges to prosecute his said Writ to wit Iohn Doo and Ric Roo And that he by vertue of that Writ to him directed at his County held at the Castle of York in the County asoresaid the 10. day of May in the year of our Lord 1657. made the same plaint to be recorded which was in the same County between the same A. B. and W. B. and the Record of the same plaint before the Justices here at this day under his seal and the seals of H. M. and four lawfull Knights of the same County hath ready of those who were present at the Record And that he summoned the same W. B. that he should be here at this day to hear the Record by R. S. and F. L. as by the same Writ to him it was commanded c. which said Record followeth in these words OLIVER Lord Protector c. To the Sheriff of York greeting W. B. hath requested that A. B. of C. in your County husbandman although the same W. B. be our true and faithfull subject and as our true and faithfull subject from the time of his nativity hitherto hath carried and behaved himselfe and of good name and same among many of our saithfull subjects was noted called and reputed notwithstanding the same A. B. not ignorant of the premisses the same W. B. unjustly to vex and him of his goods name fame and opinion whereof from his nativity to deprive conspurgate And the same W. B. into perturbation vexation and infamy amongst his neighbours and many other saithfull subjects and people of this Commonwealth to induce plain salse and scandalous words of the same W. B. at C. in the presence of many faithfull subjects and people of this Commonwealth said published and pronounced in these English words following to wit W. B. the same W. B. meaning hath stoln my horse By speaking publishing and pronouncing which same words the same W. B. not only in his good name and same is hurt but also in his doings and businesses with honest persons with whom the same W. B. in buying selling and lawfull bargaining before used is much prejudiced and made worse to the no little damage and losse of the same W. B. c. And therefore we command you that you hear the said Plaint and afterwards cause the same to be with-drawn that we hear no more clamour thereof for defect of Justice Witnesse c. Pleas held at the Castle of York in the County of York upon Monday the second day of June in the year of our Lord 1657. AT this Court W. B. complaineth of A. B. in a plea of Trespasse upon the case W. B. by P. P. his Attorney complaineth of A. B. in a plea of Trespasse upon the case for that to wit that whereas the same W. B. is a good true and faithfull subject of this Common-wealth of England from the time of his nativity hitherto hath carried and behaved himself and of good name same credit and reputation honestly with good and grave men as well his neighbours as other saithfull subjects of the said Cōmonwealth was had noted called and reputed without any falshood thest perjury selony deceit or stain of any other fault or hurtfull crime unspotted and untouched by the whole time aforesaid carried
answer for the same A. B. and C. C. his Clyents to the same E. F. in the said Plaint And the said Attorny for his said Clyents saith nothing in Bar as in others by which the said E. F. his damages against the said A. B. C. D. by occasion of the taking and unjust detaining of his Cattle aforesaid ought to recover but because it is unknown to the Court here what damages the said E. F. sustained by occasion of the premisses It is commanded to the said I. S. then Bayliff of the Wapentake of W. aforesaid one of the Ministers of the County Court aforesaid that he cause to come before the said Sheriffe at the next county Court of the County aforesaid to wit the 15th day of May in the yeare abovesaid at the Castle of Y. aforesaid then next following to be held twelve honest and lawfull men of the neighbourhood of S. to be suspected by neither party to enquire upon their Oath what damages the said E. F. sustained aswell by the occasion of the taking and unjust detaining of the cattle aforesaid as for his costs and charges by him about his suit in this behalf laid out and the same day was given to the said E. F. here c. At which said next County Court the same 15. day of May in the yeare abovesaid before the same Sheriff of the County aforesaid held came the said E. F. by his Attorney aforesaid And the same I. S. Bayliffe of the Wapentake aforesaid sent not his precept thereof Therefore as before it is commanded to the said I. S. Bayliff c. that he cause to come here at the next County Court before the same Sheriff of the County aforesaid to wit the 12 day of A. in the yeare abovesaid at the castle of Y. aforesaid to be held the 12th c. to enquire c to inform aforesaid c. At which day to wit the 12th day of April aforesaid before the same Sheriffe of the County aforesaid came the same E. F. by his Attorney aforesaid And the said I. S. Bayliffe c. and one of the Ministers of the same Court returned before the same Sheriffe the said precept de venire fac in all things served and executed And thereupon the Jury being thereof impannelled and called came and to enquire in forme as aforesaid sworn and charged say upon their oath that the said E. F. sustained damages by reason of the taking and unjust detaining of the Cattle aforesaid besides his costs and charges by him about his suit in this behalfe laid out 30 s. and for these costs and charges to 12 d. Therefore it is considered by the Court here that the said E. F. recover against the said A. B. and C. D. his said damages by the Jury aforesaid in form aforesaid assessed and also 26 s. to the same E. F. by the Court here for his said costs charges of his assent of increase adjudged which said damages in the whole amount unto 57 s And the same A. B. and C. D. in mercy c. Whereupon it was commanded to the same I. S. Bayliff of the Wapentake of W. aforesaid that of the goods and Chattels of the same A. B. and C. D. in his Bayliwick he should levy the damages aforesaid and that he have the money before the said Sheriffe at the next County Court at the castle of Y. to be held to wit the tenth day of March in the yeare abovesaid to render to the said E. F. for his damages aforesaid Whereupon the same E. F. prayeth that the said A. B. and C. D. would assigne and declare to the Court herein what or wherein false judgement is made to him in the said Plaint if any thing can be found proved or made appear c. And hereupon the same A. B. and C. D. say that the said Record is vitious and very much defective in this to wit that by the same Record it appeareth that the same cattle were taken the 15. day of January in the yeare abovesaid and that the complaint thereupon was levyed at the County Court of the Sheriff the 19th day of December in the yeare abovesaid so that the complaint was levied before the taking of the cattle afore made c. Also in this that by the Record it appeareth that the County Court aforesaid was held before the said Sheriffe of the County aforesaid whereas the same Court ought to be held before the same Sheriffe and suitors of the same Court so that the same Plaint was levied Coram non judice And the processe thereupon adjudged without any warrant in Law And so the same A. B. and C. D. say that in the County aforesaid false judgement was done to them in the said Plaint And pray that the said judgement for those errours and others in the same record and proceedings being may be revoked adnulled and altogether taken for nothing And that they unto all things which they by occasion of the judgement aforesaid have lost may be restored c. It was commanded the Sheriffe that if A. B. should secure the same Sheriffe to prosecute his complaint that then taking with him four discreet and lawfull Knights of the County aforesaid in his proper person he come to the Court of the Honour of P. and in full Court cause to be recorded that Plaint which was in the same Court of his Highnesse the Lord Protector between C. D. and the same A. B. in a certain Action upon the Case to the same C. D. by the same A. B. done as it is said Whereupon the same A. B. complaineth false judgement to be made to him in the said Court and that he should have here the Record at this day to wit Octab. Hill under his seal and by four lawfull men of the same County of those who shall be present at the Record and that he summon by good summoners the said C. D. that he should be here to hear that Record And that he have then here the names of the foure Knights and that Writ c. And now here at this day to wit Octab. Hill came as well the same A. B. by S. D. his Attorney as the same C. D. by P. P. his Attorney And the Sheriffe to wit G. M. Esq now returneth that the same A. B. found to the same Sheriff pledges to prosecute Io. Doo Ric. Roo And that the same C. D. was summoned to be here at this day by Io Den and Ric. Fen and that he by vertue of the same Writ to him directed took along with him I. S. W. P. I. H. and W. VV. four discreet and lawfull Knights of the County aforesaid and in his proper person came to the said Court held at P. in the County aforesaid the 15th day of October in the yeare of our Lord 1657. and in full Court made to be recorded the said Plaint whereof in the same Writ mention is made which said Record here at
to the said A. W. by which an action accrews to the said A. W. to have and require of the said I. S. the said 24 s. Neverthelesse the said I. S. though often required c. For not setting forth of Tythes R. H. Farmer of all and singular the tythes of hay growing within the Parish of F. in the County of Y. by vertue of a Writ of justicies by R. N. his Attorney complains of T. W. upon a Plea that he render to him 6l of c. which he oweth to him and unjustly detains For that whereas the said T. L. the day yeare c. at F. aforesaid in the County aforesaid c. was possessed and occupied of and in four acres of Medow in F. aforesaid and Parish aforesaid and being so possessed he the said T. W. did then and there cut down the grasse growing in and upon the said four acres of Meadow and two loads of hay there coming to the value of 40 s. then and there did take and carry away before he the said T. W. had set out and severed the tythes or tenth part thereof from nine parts of the same or agreed for the said tythes or tenth part thereof which the said R. did against the form of the Statute in the 5th yeare of E. 6. in such like case made and provided VVhereupon action doth acrew to the said R. H. to have and demand of the said T. VV. the said 6l that is to say the treble value of the said hay so carried away Yet notwithstanding the said T. VV. though often requested c. Vpon an Award R. H. by vertue c. by E. B. his Attorney doth complain of H. S. of a Plea that he render unto him 10 l. of c. which he oweth him and unjustly detaineth c. For that whereas the 25th day of A. in the yeare c. at the Castle c. it was concluded and agreed betwixt the said H. S. on the one party and the said R. F. on the other party that they and both of them should stand and abide the order doom and Judgement of I. D. and M. L. of all and every the suits troubles differences debts trespasse or whatsoever hath formerly been in any kinde of dealing betwixt them two from the beginning of the world to the day of the date of the said writing being the said 25. day of A. or else one or either party not standing thereto to forfeit to the other parties the sum of 10 l. of c. And for confirmation thereof they did both of them set to their hands and seales the day and yeare first above written at the Castle aforesaid c. as by the writing thereof ready to be shown to this Court may appear And whereas afterward that is to say the day yeare c. at the Castle c. the said I. D. and M. L. taking upon them the charge of the premisses by their order in writing bearing date the same day and yeare last above mentioned and here in Court to be shown did arbitrate order and award that the said R. F. should deliver to the said H. S. one parcell of starch then into the hands of the said R. F. and the bag wherein the starch is put affirmed to be the goods of the said H. S. upon the sight of the said Order And further they did thereby order and award that the said H. F. should pay or cause to be paid to the said R. R. upon the sight of this order the sum of 50 s. of c. And that all those suits debts trespasses or debates whatsoever from the beginning of the world until the said 25. day of April the yeare c. should utterly cease and have an end or else the party not standing to the same to forfeit as in the said Order is expressed the sum of 10 l. as by the said award sealed the said day year c. by the said Arbitrators and here in Court ready to be shown may appear And the said R. F. in fact saith that though he hath performed all things in the said award on his part to be performed Yet the said H. S. hath not performed any thing in the said award on his part to be performed And namely for that the said H. S. hath not paid to the said R. F. upon the sight of the said Order being the day yeare c. at the Castle c. the sum of 50 s. of c. whereby action doth accrew to the said R. F. to have and demand of the said H. S. the said 10 l. The said H. S. notwithstanding though often thereunto requested the said 50 s. to the said R. F. hath not yet paid but the same to pay c. For Attorneys Fees R. A. Gentleman c. by T. S. his Attorney doth complain of W. P. of a Plea that he do render unto him 1 l. 17 s. 2 d. of c. which he doth owe unto him and unjustly detains from him For that whereas the said W. P. the day yeare c. at the Castle of Y. did retaine him the said R. A to be the Attorney of him the said W. P. in the County Court holden at the Castle of Y. in the County of Y. before the suitors of the same Court to prosecute as the Attorny of him the said W. P. for him the said W. P. in a certain Action in the name of him the said W. P. against one T. C. of a Plea of Debt from the said day and yeare c. so long as should please both parties taking for his fees and paines in that behalfe sustained every Court day in which he the said R A. should be the Attorney of him the said W P. in the said cause 2 s. of lawfull c. besides his other reasonable charges and expences by him the said R A. in and about the prosecution of the said action to be laid out By vertue of which said retainer the said R A. was the Attorney of him the said W. P. for eight Court dayes then next following and that he did lay out to the Clark and other Offices of the said Court in and about the prosecution of the said suit 1 l. 1 s. 2 d. of c. which together with the 16 s for his fees for the said Court dayes doth in all amount to 1 l. 17 s. 2 d. of c. By reason whereof an action doth accrue to the said R A. to have and recover of him the said W P. the said 1 l. 17 s. 2 d. yet the said W P. although often requested the said c. to the said R A. he hath not rendred but to render the same to him he hath altogether hitherto refused and doth yet refuse to the great damage of him the said R A. Whereupon he saith that he is damnified and hath damage to the value of 35 s. And thereupon he brings this suit c. Vpon a Lease for Tythes W.
voluntary will make to the said A. the said writing and not by force and hardnesse of imprisonment as the said B. above hath alledged And this he prayeth may be inquired of by the Countrey And the said B. likewise c. The Assault made by the Plaintiff c. ANd c. when c. And as to the Trespasse and Assault aforesaid above supposed to be done the said I. R. saith that the said R. W. his action aforesaid against him ought not to have because he saith that the aforesaid R. VV. the day year c. aforesaid upon him the said I. R. at the Castle c. did make an Assault and him would have beaten wounded and evil intreated by which the said I. R. himselfe against the aforesaid R. VV. did then and there defend And saith that if any evil to the said R. VV. then and there happened was of the proper assault of him the said R. VV. And in defence of him the said I. R. And this he is ready to verifie whereupon he prayeth Judgement if the aforesaid R. VV. his action aforesaid against him ought to have c. Replication ANd the foresaid R. VV saith that he by any thing before alledged from having his action aforesaid ought not to be debarred because he saith that the foresaid I. R. the day yeare c. abovesaid at c. in his Declaration aforesaid above specified of his own proper injury and without such cause by the said R. VV. above alledged upon him the said R. VV. did make an assault and him did beat wound and evil intreat so that of his life he did despair against the peace of the Lord Protector that now is as the said R. VV. above against him hath complained And this he prayeth may be inquired of by the Countrey And the said I. R. likewise Therefore c. The Defendant pleadeth the Plaintiff within age to bring his action and should have brought it by Guardian and not by Attorney ANd c. when c. And sayes that the foresaid I. R. ought not to have his action aforesaid against him because he sayes that the foresaid I. R. the day and year in the Declaration specified to wit the day year c. the day of the issuing forth of the Writ of Justicies of him the said I. R. that is to say the day year c. was within the age of one and twenty years And that the foresaid I. R. declared against him the said P. C. in the Plaint aforesaid by his Attorney whereas by the due form of Law he ought to have declared by his Guardian And this he is ready to aver whereupon he prayes Judgement whether the aforesaid I. R. ought to have his action aforesaid against him c. To a Trespasse in Walking Not guilty and as to the residue of Trespasse tender of amends ANd c. when c. and saith that as to the breaking of the close aforesaid as also to the treading down and consuming of the Corn and grasse aforesaid with his seet in walking in the same four acres of land aforesaid of new assigned above supposed to be done saith that he is in no wise thereof guilty c. and of this he putteth himself upon the Countrey and the Plaintiff likewise And as to the residue of the trespasse aforesaid in the same four acres of Land of new assigned above supposed to be done the same A. saith that the same B. his action aforesaid ought not to have because he saith that the residue of the trespass aforesaid in the same four acres of Land of new assigned above supposed to be done was done with the cattle aforesaid by negligence and against the will of the same A. and that the same A. afterwards and before the day of commencing of this action of the same B. to wit the 16 day of May in the year c. at the same parish of R. in the said County of Y. offered to the same B. 20 s. of lawfull money of England for and in satisfaction for the residue of the trespasse aforesaid so as aforesaid done which said 20 s. were sufficient amends for the same residue of the trespasse aforesaid in the same four acres of Land with the appurtenances of new assigned as beforesaid done and that the same B. the said 20 s. as aforesaid offered to receive of the same A. then and there altogether refused and as yet doth refuse and this he is ready to verifie And c. Replication ANd the same B. as to the same plea of the said A. as to the said residue of the trespasse aforesaid in the same four acres of land with the appurtenances of new assigned done saith that he by any thing in the same plea before alledged ought not to be barred from having his action aforesaid against him c. because he protesteth that the aforesaid residue of the trespasse aforesaid in the same four acres of land with the appurtenances of new assigned was not done with the cattel aforesaid by the negligence and against the will of the same A. protesting also that the said 20 s. in satisfaction for the trespasse aforesaid were not offered before the same day of commencing the suit of the said B. as the same A. hath above alledged for plea the same B. saith that the same 20 s. were offered by the same A. to the said B. for a certain trespasse by the same A. with his cattle aforesaid to the same B. in a certain other Close of land with the appurtenances called the S. of the same B. in the Parish of R. aforesaid in the County aforesaid done without that that the same A. offered to the same B. the said 20 s. for and in the satisfaction of the foresaid residue of the trespass aforesaid in the same 4 acres of land of new assigned done as the same A. hath above alledged and this he is ready to verifie whereupon for that the same A. the said residue of the trespass aforesaid in the same four acres of Land with the appurtenances aforesaid of new assigned done above acknowledgeth the same B. prayeth judgment and his damages by occasion of the residue of the trespass aforesaid to him to be adjudged c. Rejoynder ANd the same A. as before saith that he offered to the same B. the said 20 s. for and in satisfaction of the said residue of the trespasse aforesaid in the same four acres of Land with the appurtenances of new assigned done as he hath above alledged And of this he putteth himselfe upon the Countrey and the same B. likewise Therefore c. Misnomer in Baptism pleaded in Abatement of the Writ of Justicies ANd the said A. by Simon Don his Attorney comes and prayes Judgement of the Writ of Justicies aforesaid because he saith that the name of Baptism of the said Agnes in the Writ aforesaid named is Anna and not Agnes as the said B. hath above
said C. D. the said Messuage Garden Land and Wood with the appurtenances from the said Feast of the Annunciation of c. until the Feast of the Annunciation of c. next before the time of the taking aforesaid had and occupied and for that that 30 s. of the said Lease by the said time unto him the said A. B. at the time of the said computation remained in arrear and as yet remaineth unpaid doth well avouch the taking of the said Cattel in the said place in which c. and justly c. And this he is ready to prove whereupon he prayeth judgment and the return of the said Cattel to be adjudged unto him c. The Defendant saith that the Goods were taken as a pawn or pledge for money lent ANd the aforesaid A. B. by c. comes and defends the force and injury when c. And as to the breaking the Close c. he is in nothing thereof guilty and as to the residue of the trespasse aforesaid supposed to be done the same A. B. saies the aforesaid C. D. ought not to have his action c. because he saith that the same C D. long before the said time wherein c. was indebted unto him the said A. B. in 22 s. for divers sums of money by him the said C. D. of the aforesaid A. B. formerly borrowed And afterwards and long before the said time the same C. D. by one E. his wife delivered to the aforesaid A. B. the aforesaid goods and chattels as a pawn for the aforesaid 22 s. to be held unto him the said A. B. in pledge until the said C. D. to the aforesaid A. B. the same 22 s. had paid And the same A. B. in fact saith that the aforesaid C. D. hath not as yet paid to him the said A. B. the aforesaid 22 s. which is the same Trespasse and taking and carrying away the aforesaid goods and chattels whereof the aforesaid C. D. above now complains And this c. whereupon c. Replication that he tooke them Injuria sua propria without such a cause ANd the said C. D. sayes that he by any thing before alledged ought not to be debarred from having his action aforesaid because he saith that the aforesaid A. B. as of his proper injury and without such a cause above by him the said A. B. alledged the day and year aforesaid the aforesaid goods and chattels at R. in the said County of Y. found he took and carried away as the same C. D. by his Declaration aforesaid above supposeth And this he prayeth may be inquired of by the Countrey And the aforesaid A. B. in like manner Therefore c. Concord in Assault and Battery ANd the aforesaid A. B. in his proper person coms and defends the sorce and injury when c. And saith that as to the Trespasse aforesaid above supposed to be done the same A. B. sayes that the aforesaid C. D. ought not to have his action aforesaid against him because he saith that long after the Trespasse aforesaid was supposed to be made to wit the eighth day of July in the year c. aforesaid at S. aforesaid in the County aforesaid and within the liberty and jurisdiction of this Court the same A. B. and C. D. by the mediation of E. F. and G. H. their friends and acquaintance in a friendly manner comming between them in such manner it was agreed together between them that is to say that the aforesaid A. B. should pay to the aforesaid C. D. in amends and for satisfaction of that Trespasse five shillings of lawfull money of England which the said A. B. the said five shillings of c. to the aforesaid C. D. then and there paid according to the force form and effect of the concord aforesaid And this c. whereupon he prayes Judgement c. Replication No such Concord or Agreement made ANd the aforesaid C. D. sayes that he by any thing prealledged ought not to be debarred from having his action aforesaid because he saith that there was never any such concord or agreement had between them the said C D. and A B. in manner and form as the said A B. hath above alledged by pleading And this he prayes may be inquired of by the Countrey and the aforesaid A B. in like manner c. The Defendant saith that as to the taking of the Oxe that he tooke it by the name of an Heriot ANd the said C D. by c. cometh and defendeth the force and wrong when c. And as to the taking of the said Oxe the said C D. doth well avow the taking of the said Oxe in the said place in which c. and justly c. because he saith that long before the taking of the said Oxe before supposed one I G. was seized of one Messuage with the appurtenances in W. aforesaid in his Demesne as of see and so seized held the same of the said C D. by fealty and the rent of 12 d. unto him the said C D. every year at the feasts of the Annunciation of the blessed Virgin Mary c. of S. Michael the Archangel to be paid by equall portions and also by Services that every tenant of the said Messuage with the appurtenances thereof seized in his Demesne as ofsee or in use from the time of which contrary c. he ought and had accustomed to render unto the said C D. and his heirs the best animal living of the same tenant of the said Messuage with the appurtenances so thereof dying seised in his Demesne as of see or in use by the name of Heriot of which services the said C D. was seized by the hands of the said I G. as by the hands of his true tenant that is to say of the said Fealty as ofsee and right and of the said Rent in his Demesne as of see And afterward the said I G. died of the said Messuage with the appurtenances seized in his Demesne as ofsee And because the said Oxe was the proper Oxe of the said I G. at the time of his Death the said C D. that Oxe as the best animal which was of the said I G. at the time of his death by the name of a Heriot he took and justly c. Justification in Trespasse for want of reparation of the hedges by the Plaintiffe ANd the said A and B. by I R. their Attorney come and desend their force and injury where c. And as to the breaking of the Close aforesaid and the eating up treading down and consuming the grasse aforesaid the same A and B. say that the aforesaid D. ought not to have his action aforesaid against them because they say that at the time of the Trespasse aforesaid supposed to be made were and are seized of a certain Close of Pasture near adjoyning to the said Close of the aforesaid D. in which the grasse aforesaid in S.
of the Peace or before any other person or persons having any lawfull authority to summon the same persons and that he himselfe shall personally attend at the same Assize and Gaole-delivery Sessions of the Peace and at the County Court to make his just returnes and doe all the services belonging to the Bayliffe of a Wapentake if he be in health or able to performe the same or otherwise by his sufficient Deputy to be allowed under the High Sherifs seale of Office 5. Item That he the said C. D. shall before the twelfth day of January next coming deliver or cause to be delivered unto the hands of the said High Sherif or Under-sherif one paper booke fairely written containing the names sir-names and additions together with the dwelling places of all such Free-holders as are now dwelling and resident within the said Wapentake of Ewcross and shall likewise save and keepe harmlesse the said Sherif his lands and tenements goods and chattels of and from all issues and amerciaments which shall or may be charged upon them or any of them for and by reason of returning not returning or mis-returning of any Free-holder or Free-holders by the said C. D. or his Deputies 6. Item That the said C. D. his Deputy or Deputies shall bring or cause to be brought to the Castle of Y. all such person and persons as shall by them or any of them be arrested by vertue of any Warrant or Warrants upon any Capias utlegatum or Capias ad satisfaciendum And that likewise upon all Arrests of persons baylable take sufficient bond with two sureties for their appearance at the returne of the VVrit and the said Bonds so taken shall deliver unto the Under-sherif or his Deputy by the space of sixe dayes before the respective dayes of their severall appearances 7. Item That neither the said C. D. nor any of his Deputies make any sale of any goods by him or them or either of them seised or taken for any of his Highnesses debts or upon any execution between party and party Nor shall detaine or keepe in his or their hands any goods so taken by the space of foure dayes but shall bring send or deliver the same unto the said Under-sherif his Deputy or Deputies with a true Copy of their appraisements and the names of the appraisers in case the owners or some friends for them shall deny to take them as they are apprized or to pay the debts and summes for which they were so seised and taken together with the reasonable charges expended concerning the same and every of them shall and will from time to time within sixe dayes after notice or command to him or them given by the said High Sheriffe or his Deputy repaire and come to his Office at Y. or else-where and then and there make a just and perfect account for and concerning all Fees aswell for Arrests and Perquisites of Courts as for all other dues and profits unaccounted whatsoever for and which he and they or any of them shall have received and taken during such times as he the said C. D. shall continue Bayliffe of the said Wapentake which of right belongeth unto his Highnesse or the said now Sheriffe or his Under-sheriffe And the said high Sheriff or Under-sheriffe upon his true account so be made by the said C. D. shall returne unto him the said C. D. all the overplus of the said summe so deposited by the said C. D. to the said high Sheriffe or his lawfull Deputy as shall remaine in his the said Sheriffs hands after the perfecting of the said account 9. Item That he the said C. D. shall after the severall generall Assizes and Gaole delivery and Sessions of the Peace be present and ready in his owne person safely to carry and conduct the prisoners condemned to the place of Execution and not to depart thence without licence from the high Sheriff or his Under-sheriff And shall likewise from time to time so often as he shall be thereto required by the sayd Sheriff Under-sheriffe or his Deputies be ready to ayd and assist them or any of them for the apprehending of any Traytor Priest or Felon or for any other matter or thing whatsoever concerning his Highnesses service within the said County In witnesse whereof c. The Bond for the performance of these Articles is ordinarily made as all other bonds are for the performance of Covenants A Bond entered to a Sheriffe for ones appearance in the Common Bench. KNow all men by these presents that we A. B. of S. in the County of Y. Gent. C. D. of R. in the said County Esquire and E. F. of T. in the said County Yeoman are holden and firmly bound to G. M. Esq High Sheriff of the County of Y. in 30 l. of good and lawfull money of England to be payd to the said G. M. his Executors Administrators or Assignes To the which payment well and truly to be made we binde us and every of us by himselfe for the whole and in the whole our Heires Executors and Administrators firmely by these presents Sealed with our seales dated the twentieth day of June in the yeare c. The Condition THe Condition of c. That if the above bounden A. B. do appear before the Justices of the Common Bench at Westminster in the morrow of the holy Trinity to answer M. N Gent. in a plea of Debt That then this present Obligation to be voyd c. In the Upper bench thus THe Condition c. That if the above bounden A. B. do appeare before his Highnesse the Lord Protector of the Common-wealth c. at Westminster on Saturday next after the morrow of St. Martin to answer to M. N. of a plea of Trespasse That then c. Note that Upper Bench Writs are alwayes returnable upon a day certain as on Monday or Tuesday or Thursday c. next after the morrow of St. Martin c. and are alwayes in trespass But Common Bench Writs are in Debt Trespasse Account Trespasse upon the Case c. as the case requires and are not returnable on a day certaine but returnable on the morrow of the Holy Trinity or the morrow of St. Martin c. An Indenture of Covenants to a Sheriffe to save him harmlesse for returning a Devastavit against an Executor THIS INDENTVRE made c. Betweene Sir A. B. Knight High Sheriffe of the County of Y. and C. D. Gentleman Under-sheriffe of the said high Sheriffe of the said County of Y. of the one part and E. F. of c. of the other part Witnesses That whereas the said E. F. hath obtained and sued out of his Highnesse Court of Common Pleas at Westminster his Highnesses Writ of Fieri facias to the said Sheriffe directed bearing Teste the 29 day of June now last past and returnable in the said Court in 8 days of the holy Trinity last past thereby commanding the said high Sheriffe to
c. Ass 13 E. 3. Avowry 105. If my Horse be in the keeping of another man he may be distrained if I be amercied in the Leet for stopping the High-way c. 47 E. 3. 12. But if an Inne-holder be amercied the horse of a stranger cannot be distrained 10 H. 7. fol. 21. Note that in 8 R. 2. Avowry 194. If one be amercied in the Sheriffs tourn the Sheriff may distrain throughout the whole County and in like manner if the amerciament be in a Leet throughout all the precincts of the Leet The Statute of 1 E. 4. expresly appoints that no fine or amerciament in the Tourn or Leet shal be levied unlesse it be certified at the next sessions of the peace by Indenture inrolled there and by processe made from the Justices of Peace to the Sheriffe or Steward How Presentments in Leets shall be traversable NOte Scard saith that if a thing be presented at the day in a Leet this is as Gospel if it passe that day without being repealed And therefore if a false presentment be made he shall have an action of false imprisonment the same day against the prosecutors but if he stay until another day it is otherwise and he who is amercied there for purpresture or other Nusance in Avowry for the amerciament he shall traverse in no point Wilby If it be presented that he hath levied a Ditch over the Highway if the presentment be false he shall have trespasse against him who throwes it down by force of such presentment And so of my house abated by reason of such false imprisonment Hil. 21. E. 3. Bar. 271. He who is amerced in a Leet may traverse the resiancy but he shall not say that the place where c. is within another view 4 E. 3. 12. 10 E. 3. 5. 41 E. 3. 26. But if he hath been sworn in my Leet he shall not have the traverse 4 E. 3. 31. 10 E. 3. 9. The Method of keeping the Sheriffs Tourn or Court Leet LEt the Sheriffe or Steward make a Precept unto the Bayliffe to summon the Court by a reasonable time to wit fifteene or sixteene dayes before the Court be kept if it be lesse time it is sufficient in Law the Precept must be made according to this subsequent President A. B Esquire Sheriff of the County of Y. To the Bayliffe of the Liberty or Weapentake of S. greeting I command you that you diligently summon the Court with view of franke-pledge to be held within the said Liberty the sixteenth day of August next ensuing about the hour of eight in the forenoon of the same day at the common Tollbooth of R. And this given under the seale of my Office the twenty eighth day of July in the yeare c. By the Sheriffe If it be a Court Leet held in a particular Hundred or Mannor of any Lord then the form of the Precept is thus A. B. Gent. Steward of I. N Esquire of his Hundred or of his Mannor of O. to the Bayliffe of the same Hundred or Mannor greeting Commanding thee that thou summon this Court with the view of Frank-pledge of the said Hundred or Mannor to be held at the accustomed place of S. the 16. day of August next ensuing And this given under my seale the twenty eighth day of July in the year c. By me A. B. Steward After the Steward hath placed himself in the Court he must first enter the title of the Court in the beginning of the Court-Roll with the name of the place where the Court is holden in this manner The entry of the Court ss The view of Frank-pledge with the Court of A. B. Sheriffe of the County of Y. there held on Tuesday the 16. day of August in the yeare c. By the Sheriff If In the Lords Court then thus ss The view of Frank-pledge with the Court of I. N. Esquire there held on Tuesday the c. By A. B. Steward Then cause the Bayliffe to make three Proclamations repeating them after the Steward in this manner Proclamation ALL manner of persons who were summoned to appear here this day to serve His Highnesse the Lord Protector and the Sheriffe or the Lord of the Mannor for his Court now holden draw near and give your attendance and every one answer to his name as he shall be called upon pain and peril that may fall thereon After all are called and those that are absent be marked to be amercied then the Steward shall cause the Bayliff again to make other three Proclamations viz. O yes c. causing the Bayliff to say Proclamation IF any man will be Essoyned come into Court and you shall be heard and all such persons as were Essoyned the last Court let them come in now and warrant their Essoyns otherwise they will be amercied And if any desire to be essoyned by the Tythingman or other neighbour then for the first Court they may be essoyned The Essoyn must be entred in this manner A. B. is essoyned by C. D. c. Inquire if there be any tenant in the Mannor that hath any action or cause of action since the last Court day let him put in his plaint sedente curiâ viz. the Court sitting and it shall be entred Inquire if there be any Precepts attachments or distresses depending in the Court rolls call them openly in the Court and know if the Bayliffe have executed them Also if there be any old Plaints depending in the Court Roll before this court holden cause the parties to be called before the inquest be charged Then impannel the Inquest comanding the fore-man to lay his hand upon the book swearing him as follows You shall sweare that you shall diligently inquire and true presentment make of all such things as you shall be charged with concerning his Highnesse the Lord Protector or the Lords Court of the Mannor you shall well and truly keep his Highnesses Counsel your Fellowes and your owne you shall not conceale nor hide any thing for favour feare promise or affection you bear to any person or persons or present any thing for hatred or malice you beare to any man but you shall present and tell the truth according as things may or shall come to your knowledge by information or otherwise making a true presentment thereof without concealment so helpe you God c. After the fore-man is particularly sworne cause foure at once of the Inquest to lay their right hands together on the book swearing them in this manner The same oath which A. B. your fore-man on his behalfe hath made you and every of you shall well and truly keep on your behalfes so help you God Swearing the rest accordingly After they are all sworn cause the Bayliffe to number them as the Steward doth read them Then command the Bayliffe to make Proclamation saying after the Steward Proclamation YOu good men that are impannelled to enquire for his Highnesse the
he must be attended by the property of Knowledge as to be expert in the lawes of the Countrey and the customes of the Mannor and have ability to instruct and direct the Bayliffs and other ministers in dubious things Let us now descend to demonstrate his retainer into office c. A Lord of a Mannor may by parol retain one to be Steward of his Mannor and to hold the Courts thereof as well as a Bayliff may be and that by word and this retainer shall be as effectual in all points before discharge as the most effectual institution by Patent yet most commonly they have patents for their offices Co. 4. 30. and therewith accorderh 8 Eliz Dyer 248. Likewise it was adjudged in the common pleas in the Lady Julian Holcrofts case that whereas one was generally retained by the Lord of a Mannor by parol to be Steward of a Mannor and to keep his Courts that such Steward may take surrender of customary tenants out of the Court or make voluntary admittances or any other act incident to the office of a Steward for till such Steward be discharged he is Steward of the Mannor as well by the retainer by word as if he had a grant thereof by Patent Leon. fo 309. He represents the person of the Lord in many things for in the absence of the Lord he sitteth in Court as Judge to punish offences to determine controversies redresse injuries c. he acts some things in the Lords name and not in his own name for if the Steward admit any Copyholder or by special Authority or particular custome licence a Copyholder to Alien this admittance and licence shall be made in the Lords name and the entery in the Roll shall be Quod dominus per senescallum admisis licentiavit c. Co. of Copyholds fo 143. He must take care to Record and Enrol all the Conveyances of estates for it hath behn holden by some That if the Lord in open Court grant a Copyhold estate and no entry is made thereof in the Court Rolls that the grant is inavlid and that no collateral will make it valid Carthrop fo 47. But if the tenant have no Copy or lose his Copy the roll of the Court is a good evidence And if the wills be lost it is thought cleerly it may be supplyed by proof ibidem At every Court he is to swear some of the Tenants which is called the Homage these he chargeth with the Articles before mentioned and upon them they do present and upon this presentment the Steward is to proceed as upon the presentment in a Leet save onely that as it is said the Lord cannot bring an action of debt but is onely to distraine for the amerciament in this Court 2 H. 4. 24. For by the Common Law he hath no authority to assesse amerciaments or Fines in a Court-Baron but the suitors for they are the Judges and not the Steward Leonards rep first part 299. If the Steward take a bribe or use partiallity in any case depending before him of which crime many are too culpable or if by his Patent he be obliged to keep Court at certain times of the year and failes thereof the Lord receiving prejudice thereby not otherwise or if he be by his Patent obliged to keep Court upon demand or request to be made by the Lord and upon request and demand by the Lord he refuseth these and the like cases will make him subject to a forfeiture Co. of Copyholds fo 146. c. Of the Fees of the Court-Baron AS for the Fees of this Court they much differ and are by Law what they have been by custome time out of minde For some take the same Fees as are taken in the County court And other Courts take the Fees which follow The Stewards Fees FOr entring every Essoyne 00-00-02 Entering every action 00-00-02 Every Order entered 00-00-04 Entering a Declaration if it be large then more 00 00-04 Every Processe 00 00 04 Entering every plea or answer 00-00 04 Every Continuance 00-00-02 Every wager of Law and entry 00 00-02 Warrants for witnesses and summoning Juries 00-00-04 Every Non-suite and detraxit 00 00-04 Entering the Judgement 00 00-04 Satisfaction acknowledged 00-00 02 For removing and certifying a cause 00-06-08 The Bayliffs Fees FOr every Summons and entrance 00-00-08 For executing every Processe 00-00-04 For every shilling upon Judgment 00-00-01 For summoning the Jury 00-01-00 For summoning of Witnesses upon a Warrant 00 00-04 For every Oath 00 00-02 If there be Attorneyes then their Fees are FOr every cause if it be heard 00-01-00 For drawing the Declaration 00-00-06 For every Court the cause dependeth after he is reteined 00-00-06 See more in the Fees of the County Court The Oath of the Bayliff of a Mannor YOu shall swear that you shal well and truly serve his Highness the Lord Protector and the Lord of this Monnor for the year to come in the Office of Bayliff of the same Mannor and you shall duly and truly gather all such rents revenues or other yearly profits as shall be extracted out unto you and therefore you shall make and yield up a true account at the end of the said year and in every thing you shall well and honesty behave your self in the said office during the time aforesaid So help you God c. The Bayliff must be sworn before the Court end The form and method of Presentments which are to be drawn by the Steward I shall not trouble you with being copiously performed by Mr. Wilkinson in his office of Sheriffs fo 218 219 220 c. onely take these subsequent for methods sake The finding of the death of a Tenant and of a Surrender made to the use of his Will with an admission of the Tenant according to the Will THe Homage do further present that A. B. the elder Copyhold tenant of this Mannor dyed after the last Court and that he the said A. B. before his death that is to say the tenth day of May in the year c did surrender into the hands of the Lord of this Mannor by the hands of C. D. Copyhold Tenant of the said Mannor all and singular his Copyhold lands Tenements and Hereditaments holden of this Mannor to the behoofe and use of his Testament and last Will. And now at this Court came E. F. the eldest son of the said A. B. and doth bring here into the Court the Testament and last Will of the said A. B. bearing date c. before G. H. Deputy Commissary of I. A. in and through the whole Arch Deaconry of W. approved the tenor of which said Will as to the Copyhold lands doth follow in these words that is to say Item I give unto E. my Son c. as by the said Testament and last Will of the said A. B. more at large appeareth And he doth crave of the grace of the Lord to be admitted to