Issues and other Entries on their own Rolls as hath been unjustly reported of them But now because the later Precedents may be thought the best proof the former being looked upon by some persons it may be as obsolete by reason of their antiquity these Years following of King James have been carefully and with great labour and pains searched in order year by year It appears then in Paschae 15. ejusdem Regis one Wythe a Filizer enters an Appeal of Murther and in Trin. 15. a Judgment by defalt and a Writ of Enquiry of Damages awarded Mich. 16. one Shaw a Filizer enters an Issue wherein one Edmund Dennye who was one of the Clerks to the then chief Clerk was Attorney for the Plaintiff and afterwards was one of the Jury of Attornies that made the Presentment of the Fees at the end of this Book And in that Term also Walker and Williamson two Filizers do enter two appeals of Murther In Hilary 16. the reversal of an Outlawry pro defectu Proclamationis and divers Issues Trin. 17. the like reversal of an Outlawry and divers Issues one of them in Replevin and Judgment thereupon by Percival a Filizer and several Judgments by defalt In one of which one Tetlow was Attorney for the Plaintiff and in another one Tippet and in others one Harborn and one Bunce were Attornies for the Defendants all which four last Attornies were four of them also that made the Presentment hereafter mentioned In Mich. 17. nil dic in cas In Hilary 17. Scire facias and Judgment in Replevin and several Issues In Paschae 18. Special Plea and Issue thereupon and nil dicit in Replevin upon a Writ of Second deliverance Trin. 18. several Issues and a Defalt Mich. 18. three Defalts Hil. 18. two Issues and two Defalts Trin. 19. the like Hil. 19. two nichil dicits and Writs of Enquiry awarded Paschae 20. Special Plea and Demurrer Trin. 20. several Issues Mich. prox the like and Hil. prox one Dodd a Filizer enters a writ of Right and other Filizers several other Entries of Issues and Judgments in Trin. 21. Hil. prox and Trin. 22. the like Mich. 22. one Seaman a Filizer enters the Reversal of an Outlawry for the insufficient return of an Exigent and to winde up this King's Reign in Hil. prox Edgar Filizer of London so soon as he was Sworn enters an Issue wherein one William Jumper was Attorney for the Plaintiff who was also one of those Attornies that made the said presentment And now we are come to the Reign of Charles the First of ever blessed Memory and because some as I said before look upon the latest precedents to be the best evidence I beg leave to be more prolix in this King's Reign than in the former for these were all searched likewise gradually Some Terms having no such Entries I have here omitted In Trin. 2. Mich. prox ejusdem Regis An. Car. Primi there are divers Issues and Defalts entered and also the Reversal of an Outlawry In Paschae 3. the said Edgar enters four Issues in London Hil. 3. Paschae 4. the like by other Filizers Trin. prox several Issues and Judgments and among them the said Edgar enters an Issue by Bill after an Imparlance Mich. 4. the like Issues and Judgments by others and one Jumper aforesaid Att. pro Quer. in one of them nay in Hilary 4. the said Edgar enters other two Issues by Bill a thing which the now Filizers of this Court do not in the least pretend unto but it seems he thought it was as lawfull and as much his right to enter by Bill as it was for the then cheif Clerk or Prothonotary to enter by Writ and was then an occasion of very great difference between that Filizer on the behalf of all the other Filizers and the then cheif Clerk or Prothonotary who had entred by Writ And upon good ground it is believed that the presentment of the Fees hereafter mentioned did settle the matter between them being as is supposed procured upon the Petition of the then Filizers to his then Majesty reciting the former narrative who was thereupon pleased in a short time after to grant his Commission to inspect into all the Fees of all the Offices both in this Court and all other his Courts of Common-Law in England and Wales and to settle the same but after what manner the said difference was setled between the then Filizers and the then cheif Clerk is not known but it seems it was not so setled as to take away the right of the Filizers to enter Issues on their own Rolls as by some hath been most falsely affirmed For that they did still continue on to enter by Writ but not by Bill as may appear by Paschae 5. Issue in Ejectment verdict and Judgment entred by Fisher Filizer of Dorset-shire in Trin. 5. the aforesaid Edgar entred an Issue in London and Clerk Filizer of Norf. entred two Issues Hil. 5. Gasnold Filizer of Suf. entred a cause against two Defendants wherein the one pleaded and the other suffered Judgment Paschae 6. nil dic in Ejectment by the said Edgar and an Issue wherein John Woodward a very able Clerk of the then cheif Clerk was Attorney for the Plaintiff one very well known to some of that name now in this Court and the said Clerk was the Filizer this I mention more at large and many other I might to shew that the Filizer did not enter it as he was Attorney in the cause himself but for another Attorney but if he had I think it had argued no less a right in himself to enter than if he had entred it for another Attorney and a multitude of those former Entries I have already mentioned as well as those I am yet to set down are made for other persons Attornies for the Plaintiffs as may appear by the Records themselves In Trin. 6. divers Issues and Judgments and Scir fac sur Judic in replevin Mich. 6. Trin. 7. Mich. 7. the like wherein Merefield the then Filizer of London enters an Issue for one Creme one of the Clerks of the then cheif Clerk Plaintiff who did not certainly enter it with the Filizer to have his privilege allowed him for that he might without doubt have had if he had entred it with his own Master the cheif Clerk but questionless he did enter it with the Filizer for that he thought in his Judgment he ought so to do the said Filizer having made out all the former process and also in that Term the Filizer of Lincoln enters an Issue upon a special Plea Verdict and Judgment Hilary 7. the like by Merefield and others Paschae 8. an Issue Defalt and a Demurrer in three several causes Trin. Mich. and Hil. prox the like Paschae 9. the said Merefield enters an Issue wherein Hatton Berners was Attorney for the Plaintiff and Clerk to the cheif Clerk and another wherein the aforesaid Jumper is Attorney for the Plaintiff who
well known by most Practisers in this Court and shall onely say somewhat of removing Plaints out of such Inferiour Courts as County Courts or Sheriffs Courts and Court Barons or Manour Courts but more especially of County Courts and in them touching Plaints in Replevin there entred and sued without Writ out of the Chancery as it is said in Fitz. Nat. brevium fol. 170. if the Plaintiff or Defendant will remove such Plaints he ought to sue a Writ of Recordare out of the Chancery directed unto the Sheriff of that County in whose Court the Plaint is entred vide the Writ it self there at large which I here for brevity omit whereby it appeareth that the Plaintiff may remove such Plaint by such Writ of Recordare without any cause shewn in the Writ but the Defendant cannot without shewing cause for it in the Writ And the like he must doe in a Writ of Pone which removes such Plaints if such Replevin be sued by Writ out of the Chancery and both these Writs may be returnable in this Court and in the Natura brevium aforesaid you may find several Causes that may be inserted on the behalf of the Defendant and when such Cause or Plaint in Replevin is removed either by the Plaintiff or Defendant for in Replevin they are as it were both Plaintiffs in this Court the Defendant must enter his appearance with the Filizer of that County out of which the Plaint is removed and give a rule with him for the Plaintiff to declare and if the Plaintiff doth not declare by the time limitted in that rule against the Defendant or if he do declare and the Defendant avoweth or maketh Cognizance and upon the Issue tried or by defalt in the Plaintiff the Judgment be for the Defendant or Avowant then the Attorney for such Defendant may have in such case from the said Filizer a Writ of Return habend and Writ of Enquiry for damages and upon the Sheriffs return of this Writ quod averia elongat then the said Filizer will make a Capias in Withernam to take other Cattle of the Plaintiff's and if the Sheriff upon that doth return that the Plaintiff hath no Cattle that he can take in Withernam then the Filizer will make you a Capias against the Plaintiff's Body and so proceed to Outlawry And if the Plaintiff do declare that the Defendant yet hath and doth detein the Cattle c. and the Defendant appears and afterwards makes defalt the Plaintiff shall have Judgment to recover all in damages as well the value of the Cattle as his damages for taking of them and his Costs and to that end the Attorney for the Plaintiff may have a Writ of Enquiry of damages from the said Filizer the same proceedings in case it be in a Replevin for any dead Chattells c. And if a Replevin be sued by Plaint in the Court of any other Lord than in the County Court before the Sheriff as in the Court Barons or Manour Courts there it shall be also removed by a Writ of Accedas ad Cur. and the proceedings therein the same as before is said And if the Sheriff in any case return a tarde there may be an alias and pluries had and if a Replevin be within any Liberty or Franchâ—se and the Sheriff return upon the Writ of Replevin if it be by Writ that he hath commanded the Bayliff of the Franchise who hath given him no answer or that the Bayliff will make no deliverance then the Plaintiff may have a Non omittas to the Sheriff commanding him to enter into the said Liberty or Franchise and make the return and if the Sheriff doe it not then the Plaintiff may have an alias and plur non omittas and so a plur ad infinitum c. But if the Sheriff do not return the plur replevin abovementioned then the Plaintiff may have an Attachment against the Sheriff directed to the Coroners of the said County Vide the Statute de Ann. 17 Car. Secundi nunc Regis c. Cap. 7. made for a more speedy and effectual proceeding upon Distresses and Avowries for Rents in which you will find some former proceedings in Replevin much altered by that Statute Some Reasons impartially offered to shew how it hath come to pass that the Practice in this Court by Original Writ hath decreased and that by Bill increased and what hath occasioned some Entries of Issues and other proceedings to be made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls THE first and greatest cause or reason as is imagined of the increase of the one and the decrease of the other hath been and now is from the setled residence of the Kings of England at their Palace of Westminster in the County of Middlesex for in that County where they have resided it hath always heretofore been used in such Actions as were not proceeded in by Original Writ to take out a Bill or Precept rather and more properly directed to the Sheriff of that County to take the Defendant to bring him before the King at a certain day after a certain Return in the Term and then that Office of the Bills of Middlesex was an Office of great profit although but small Fees belonging to it by reason of the great number of them that were then taken out and upon a non est inventus returned there went out a Testatum which hath since that time gained the name of a Latitat into any other Foreign English County and this was grounded upon a Plaint brought before the King himself at Westminster and that it was so heretofore may appear by several Files of them now remaining in the former upper Treasury belonging to this Court a Copy of such Plaint and Precept I shall here set down as followeth viz. Philippus Byrd queritur de Johanne Middles ss Bateman de eo quod ipse decimo die Junii Annis Regnorum Domini Philippi Dominae Mariae Regis Reginae nunc primo The Plaint secundo vi armis videlicet gladiis c. Clausum ipsius Philippi apud Hendon in Com. predict fregit intravit Et alia enormia ei intulit ad dampnum ipsius Philippi Centum Solidorum contra pacem dicti Domini Regis dictae Dominae Reginae nunc c. Pleg de pros Johannes Doo Richardus Roo On the back of which Bill or Plaint it is thus written Ca ' r. Jovis post 18. sancti Martini Precept est Vic. quod attach Johannem Middles ss The Precept Bateman Ita quod sit coram Domino Rege Domina Regina apud Westm die Jovis prox post 18. sancti Martini ad respondend Philippo Byrd de placito transgr Et habeas ibi tunc hoc precept per. Bill Coverd On the back of which Precept it is thus returned Def. infra nominat nichil habet in balliva nostra per quod possit attach Respons Thomae Leigh Johannis
not lie wholly upon some few of the said Hundreders and thus much as to the Persons Now as to the Actions which lie not Secondly as to Actions in this Court but by Original Writ no Quare impedit Writs of Right Replevin and such like come into this Court but either by Original Writ primarily or else Plaints are entred in Inferiour Courts and removed hither by several Writs which are in their own nature as so many Originals and returnable coram nobis ubicunque c. as Writs of Recordare fac loquend Acced ad Cur. Certiorar Writs of Errour and the like and upon these there can be no prosecution by Bill in this Court So that if they could not be proceeded in by Writ this Court would lose and want much of the practice and business it now hath and hath long had and I wish long may have and the same or most part of it would be brought in the other Courts of Common Law at Westm And thus you see that against some sort of Persons in their single Capacities and against other sort in their politick Capacities and against some others as men inhabiting in any Hundred and in some sort of Actions there is no other way to proceed in this Court but by Original Writ That it is most agreeable to the Statute Fourthly lately made for setting forth the cause of Action in the Writ IT hath been formerly the practice in this Court by Bill of Middles or Latitat and process thereupon to arrest in trespass generally not mentioning the cause of action therein and yet obliging the Defendants to put in good Bail to the Plaintiff's Suit by marking the backs of such Writs or Process for good Bail and giving the Sheriff notice to take good Bail to such a Sum whatever the nature and cause of action was and by marking the Roll wherein such Writs and Process were entred for good Bail by drawing a Line under the Defendant's name and writing over it bon Manucapt and then the Attorney for the Defendant ought not to file a common Bail without searching such Rolls But this hath been thought very inconvenient and unreasonable by a late Parliament that Defendants should be obliged to put in Bail to the Sheriff to that of which they understood not any thing of the cause of action which made it very difficult to such Defendants to procure Bail especially if they happened to be arrested in places where they were strangers and therefore ought the rather to be able to satisfy such Persons as would be Bail for them what the matter and cause of action was for which in this way of proceedings the Defendants never knew untill they came at the return of such Writ or Process to put in good Bail above as it is usually called that is before some Judge of this Court and then received a Declaration And if they did not put in good Bail then such Bail-bonds as were given to the Sheriff for their appearance were forthwith put in suit which mischief being seen and considered of both in this Court and in the Common-Pleas was by the said Parliament remedied by an Act made in the thirteenth year of his now Majesty's Reign cap. 2. at the second Meeting of that Parliament The words of that Act amongst other matters are these For remedy and prevention of which so great growing evils and mischiefs and also for discouraging all frivolous and unjust Suits and causeless arrests for the future Be it enacted by the King 's most excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the authority of the same That from and after the twelfth day of February in the Year of our Lord one thousand six hundred sixty and one No Person or Persons who shall happen to be arrested by any Sheriff Under-sheriff Coroner Steward or Bayliff of any Franchise or Liberty or by any other Officer Minister Under-bayliff or other Person or Persons whatsoever within this Realm having or pretending to have authority or warrant in that behalf by force or colour of any Writ Bill or Process issuing or to be issuing out of his Majesty's said Courts of the King's-Bench and Common-Pleas or either of them in which said Writ Bill or Process the Note the true cause of action is to be expressed particularly certainty and true cause of action is not expressed particularly and for which the Defendant or Defendants in such Writ Bill or Process named is and are bailable by the Statute in that behalf made in the three and twentieth year of the Reign of the late King Henry the Sixth shall be forced or compelled to give Security or to enter into bond with Sureties for the appearances of such Person or Persons so arrested at the day and place in the said Writ Bill or Process specified or contained in any penalty or sum of money exceeding the sum of forty pounds of lawfull money of England to be conditioned for such appearances and that all Sheriffs and other Officers and Ministers aforesaid shall let to bail and deliver out of Prison and from their and every of their custodies respectively all and every Person and Persons whatsoever by them or any of them arrested upon any such Writ Bill or Process wherein the certainty and true cause of action is not particularly expressed upon security in the sum of forty pounds and no more given for appearance of such Person or Persons so arrested unto the said Sheriff or Officer aforesaid according to the said Statute in the said three and twentieth year of the Reign of the said late King Henry the Sixth in that behalf made and provided I have recited this part of the Act in his verbis for that it may be of use to them that have not the Act at large and that it may be seen how expresly and to a tittle it is fulfilled in the proceedings by Original Writ For it hath ever been the constant practice in such proceedings to express the true cause of action particularly in the Original Writ and in every Writ of Capias alias and plur thereupon to arrest and also to what Sum the Plaintiff layeth his damage that so the Defendant may procure Bail accordingly And if it happen as oftentimes it doth that such Defendant either is not arrested or doth not appear upon any of the said Process taken out against him but suffers himself to be so far proceeded against as to the Exigent yet still that he may know what he is sued for there is mention made at large of the express cause of action both in the Writ of Exigent and also in the Proclamation directed to the Sheriff where it is known or supposed the Defendant doth inhabit that so he may take care either by himself or his Attorney to appear thereunto and thereby prevent if he will his being outlawed By all which it appears that
Machell Vic. Afterwards the Latitat followed as now it is called but then rather styled a Testatum into any other County and I find it differs not at all from the now present Latitat but onely in a few words in the latter part of this Sentence following and although few yet very remarkable Super quo in Cur. nostra coram nobis testat existit quod pred A. B. latitat discurrit in Com. tuo mala quam plurima ibidem perpetrand as may appear by the Files of Latitat's there remaining by which you see that both the Plaint and Precept thereupon do suggest a tort or wrong by a Trespass done to the Plaintiff although possibly that was not the true cause of Action and afterwards suggesting in the Latitat a malefeasance by the Defendant perpetrated in another County and these Plaints and Precepts thereupon were so numerous then and the advantage of receiving and filing of them of so great moment that they have been formerly and are now likewise always excepted out of the grant to the Custos brevium of this Court by the Lord Chief Justice thereof as reserved to himself amongst other things therein excepted in these words except factur Record de Nisi prius in Com. Middlesex Transcript certification super brev errorum reception filation de lez Queriturs attachiament in eadem Cur. conservat Record de Attinct cum Feod ad inde pertinen ' as may appear by several such grants now remaining upon Record in this Court and then always such Bill or Precept went out first into that County of Middlesex where the King was then resident to take the Defendant if he might be found therein to answer the Plaintiff in such Plaint before there went a Testatum into any other County and that which was then really done as to the taking out of such Bill or Precept of Middlesex is now onely suggested in every Latitat So that when former Kings at any time have adjourned the Terms to any remote place in any other County upon any necessitous occasion as the Plague or the like as they have often done there hath always been a Bill or Precept taken out in that County to arrest any Defendant if within that County and if not then one always suggested in any Testatum or Latitat into another County and so it was no doubt when the Term was adjourned to Reading in Berkshire in the first year of the Reign of Charles the First and so it was likewise to my own knowledge when the Term of Saint Michael Anno Dom. 1665. was adjourned by our now Sovereign Lord the King unto Oxford by reason of the great Plague that then was raging both in the Cities of London and Westminster and the Suburbs thereof For then there was a Bill or Precept of Oxford to take any Defendant there Secondly Another reason may be drawn from the constant practice and course of this Court for many years as is elsewhere said to suppose every Defendant that is sued by Bill in this Court to be in Custod Mareschalli of this Court who really is not whereby to intitle the Court to a jurisdiction of the Cause and whereas the proceedings by Original Writ are by Capias Pone or Distring and the like in order to make the Defendant appear before the King in this Court the proceedings by Bill suppose him to have appeared and that he is in actual custody of the Marshall of the Marshalsey of this Court which if every such Defendant so were the now Prison of the said Marshall would not contain them no not if it were ten times as big as it is Thirdly Another reason may be this because sometimes it happens that the Attornies for the Plaintiffs have not had sufficient instructions from their Clients how to draw their Precipes to the Cursitor not knowing the true cause of Action and therefore for want of that have taken out a Latitat de placito transgr upon which the Plaintiff might have declared formerly in any Action untill of late as is before said it was enacted that a Defendant should not be held to bail except the true cause of Action were particularly expressed in the Writ since which time there is inserted in the Latitat not onely ad respondend the Plaintiff de placito transgr but also ac etiam billae ipsius Quer. versus ipsum Def. pro Centum libris de debito secundum consuetud Cur. nostrae coram nobis exhibend Or thus pro non performation promiss assumption ipsius Defenden ad dampnum ipsius Quer. Centum Librar secundum consuetud c. and so to vary in the ac etiam according to the nature of the Action and this being found formerly and also now at this day likewise to be a more easie and quick way to arrest the Defendant because it requires not so full a setting forth of the cause of Action in the Writ of Latitat as in Writ of Capias to arrest by Original it hath gained ground in this Court And as to that other matter how it hath come to pass that some Entries of Issues and other Proceedings have been made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls and this since the practice hath been so much by Bill the reason of it may be this FOR that the Clerks to the former chief Clerks of this Court for many years past have been permitted to practise as Attornies who very anciently as is conceived did not For the Reader is desired to take notice as is elsewhere before said that there are three sorts of Persons that now have privilege allowed them in this Court as Practisers That is to say First The Filizers of this Court styled as before Clerks of our Sovereign Lord the King assigned to inroll Pleas c. that is to say by Original Writ onely they made out all Process thereupon and entred them and all Issues joined thereupon and practised as Attornies as the Presentment hereafter mentioned sets forth Secondly The Clerks of the Office or Clerks to the chief Clerk of our Sovereign Lord the King assigned to enroll Pleas c. that is to say by Bill onely and these Clerks had Seats in the Ancient King's-Bench Office in the Temple which was burnt in the late dreadfull Fire of London The said Office it self was of so great and large an extent and the Seats so many in it that it looked more like a Church than an Office and incited Strangers to offer up their Devotions there when at first they came into it it was as long taking in some small rooms at each end of it which served for the Secondary for the Clerk of the Rules for the Clerk of the Declarations and the Clerk of the Doggets as Westminster Hall is broad which saith Speed in his Chronicle fol. 446. Sect. 31. is 74 foot of Assise with a proportionable breadth containing from end to end four rows of
to cause him to appear if he will and if he will not then upon returns of the Exigent an Outlawry goes out against him So that in many actions there are five Writs commonly sealed in this Court in one cause before the appearance of the Defendant and after appearance in each cause a Supersedeas and for non appearance an Outlawry and divers other Writs All which matters duly considered would certainly as much augment the Revenue of the Crown of England as it hath done formerly when this practice by original Writ flourished in this Court Thirdly As to the antiquity of his Office It is evident and will be so to any person that will take the pains to search the Records of this Court in the Reign of Edward the Third that there were then such Officers as Filizers in this Court For that at the bottom of the Plea Rolls of this Court are set their Names as so many several * Or chief Clerks Prothonotaries to such Writs and Issues and other proceedings as they then entred and it is possible to prove it also before that time but this being above 300 Years since may be thought sufficient and for above 200 Years past it appears by the Statute of the tenth year of the Reign of Henry the 6th Cap. 4. and the 18th of the same King Cap. 9. where in both those Statutes the Filizers and Exigenters of this Court are mentioned that there were then such Officers in this Court and to go much farther if it were necessary it is rational to presume that there were such before the Norman Conquest For that my Lord Coke in his Preface to his third Report saith That Writs of Assise and other Original Writs were returnable into the King's Courts before the Conquest and that as Justice Fitzherbert saith in his Preface to his Book called Natura Brevium that seeing they be speaking of such Writs the Rules and Principles of the Science of the Common Law they do manifestly prove that the Common Law of England had been time out of mind of man before the Conquest and was not altered or changed by the Conquerour And therefore certainly if such proceedings then were by original Writs it is no Foreign presumption to believe there were such Officers as Filizers who made out such Writs Also under the name and Office of a Filizer in this Court is comprehended the Exigenter The Clerk of the Supersedeas the Clerk of the Outlawries and the Clerk of the Jurours and therefore it will be necessary to consider all these places apart and distinct the one from the other and to observe what they do in these several Capacities And First As Filizers they have and 1. As Filizers do and of right ought to make out and enter upon all Actions brought by original Writ all Writs and Process whatsoever some whereof are these viz. all Cap. Als. Plur. Testat Cap. Distring in Trespass and trespass on the Case and in every suit qui tam. c. in every Rapt Custod in every trespass contra formam ordinationis in every ejectione firme and such like special Actions every Cap. Als. Plur. in appeal of Murther Robbery and Maihm every Resummons Habeas Corp. Distring in Attaint and Writs of Withernam Second deliverance and retorn habend and venir fac subpoena Distring Jur. and divers other such like Writs They likewise take and enter all appearances general or special wherein good bail is required upon original Writs they enter all general and special Imparlances they make Copies of writs of Attaint and they give Rules ad narrandum ad placitandum ad replicand and the like and enter Nonsuits for want of declaring and these things and the like they do as Filizers Secondly As Exigenters they make 2. As Exigenters out and enter in the actions before mentioned and such like actions all and every Writ or Writs of Exigent and Proclamation Allocat Exigent post Cap. Scir fac sur general ou special pardon le Roy and such like Writs Thirdly As Clerks of the Supersedeas 3. As Clerk of the Supersedeas they make out and enter upon the Exigent roll in the said actions and such like all Writs of Supersedeas quia improvide or otherwise all Writs de non molestando and other such like Writs both as well upon appearance of the Defendant to the Exigent as after that the Defendant is outlawed and either his Body taken by a general Cap. Utlagat or his Lands or Goods by a special Fourthly As Clerk of the Outlawries 4. As Clerk of the Outlawries they make out and enter in the said actions all the said Writs of general and special Cap. Utlagat and deliver them of Record and transcribe such special Capias and Inquisition when returned into the Exchequer and make out likewise the Cap. pro Fine Regis sur capiat and other such like Writs and if such Outlawry be reversed they enter up such reversalls Fifthly As Clerks of the Jurors They 5. As Clerk of the Jurors likewise make out and enter in the said Actions all Distring Jur. or Habeas Corpor and deliver them of Record and as is said before attend in Term-time the grand Jury for the County of Midd. or in whatsoever other County the Court of Kings-Bench shall sit They are Attorneys of this Court as soon as they are admitted Filizers and do practise if they please as Attorneys by Writ or Bill but they cannot enter any thing by Bill on the Prothonotary or chief Clerks rolls but one of his Clerks must enter for them Their Writs and Process are always filed with the Custos Brevium and not with the said Prothonotary or chief Clerks and they do many other things belonging to their said Offices too long here to insert and are therefore here spared because more of this matter may be found in the Copy of the presentment before mentioned placed at the end of this Book In the Court of Common-Pleas the Process to the Outlawry runs through divers Officers or Clerks hands but in this Court it is all in one person the Filizer which is such a sole and absolute Officer and his Office was and is much after the same manner executed as the Prothonotary's Office of Monmouth and there was no more but one such Officer in this Court to all the ends and purposes aforesaid both before and in the time of Henry the 6th nor since in which time the practice by original Writ in this Court was greater than that by Bill Let this suffice by way of Preface to shew what Writs and Process do belong to the Filizers of this Court to make out and enter It is most certain and I make no doubt but that it will be granted me that all the supreme Courts of Common-Law at Westminster through length of time have very much intrenched the one upon the other as might easily be made appear but that being nothing to the matter
Appearance after reversal of the Outlawry it is thus The first thing the Defendants Attorney must doe is to come to the Filizer of the City or County where the Action is laid and know of him when the Plur. Capias was returnable and then search the Filizer's Rolls of that Term and there he will find the Capias alias and plur Exigent and Proclamation awarded together with the return of the Exigent to the Quinto exact upon which the Defendant stands outlawed of all which he must take a Copy from the Roll and then come to the said Filizer to enter upon the said Roll by way of averment a defect in the proceedings either against the Statute of the one and thirtieth year of Queen Elizabeth for want of a Proclamation or otherwise as the case may require and then he prepareth his Bail-piece ready and bringeth the Bail into Court together with the Defendant and then causeth the bundle or file of Writs of Proclamations to be brought into Court and by motion of Counsel at the Bar alledging the want of a Proclamation and upon due search of the said File by the Secondary of the Court and none appearing to the Court to be filed the Outlawry is reversed by the Court which is always pronounced by the Seniour Judge of the Court if he be present if not by the next which reversal together with the names of such Bail who undertook that the Defendant shall appear to a new Original Writ to be brought by the Plaintiff within two Terms against the Defendant and to satisfy the Condemnation if he shall be convicted is all to be entred by the said Filizer up to the Process of Outlawry before entred for entring of which the Filizer's Fees are 4 d. the sheet And the Court of Common-Pleas have used to make such Entries as may appear by certain Orders Vide Praxis utriusque Banci fol. 108. in t alia of that Court made in the second year of Charles the First The words amongst others are these And it is farther ordered that all Reversals hereafter made shall be entred upon the same Roll where the Exigent is awarded being the most proper and fittest place for the safety and quiet of all Persons outlawed and their Executours to find the said Reversal in future times and not upon other Terms and Rolls as is now used Which also by the several Precedents of Entries of Reversals before-mentioned may appear to have been anciently the practice of this Court. And in these and the like Cases the Defendants do in the Common-Pleas appear by Attorney But in this Court the Defendant is obliged to appear in person with his Bail except this Court upon motion give leave to the Defendant to reverse per Attornatum The reason may be presumed to be this because upon all Outlawries in Criminal Causes in this Court the Defendants have been heretofore and now are obliged to appear in person to answer the contempts of the Law to the King and thereby they were immediately taken into custody for such contempts or otherwise disposed of at the discretion of the Court and in every civil Cause likewise it is a great contempt indeed of the Law for the Defendant not to appear after so many several Writs as go out against him before he is outlawed But yet a late Parliament thought the appearing in person so great a grievance to the Subject that it did receive a debate in the House of Commons upon a Bill then brought in but no Act passed thereupon for want of time as is presumed and whether hereafter it may not be a matter fit to be farther debated I shall leave to the wisedom of the great Council of this Nation when assembled in Parliament But to return it may be such Defendant hath been obliged to appear in person out of that high respect that ought to be given to the grandure of this Court the King himself as before is said being supposed sitting there And to be outlawed formerly in the Reign of King Alfred and untill a good while after the Conquest for Felony as my Lord Coke hath it in his First Institutes Cap. Villenage Sect. 197. fol. 128. b. was very dangerous for such Persons might have been put to death by any man as well as a Wolf that hatefull Beast might For utlagatus waviata Capita gerunt Lupina But then saith he no Man could have been outlawed but for Felony But you may see there how this Inhumanity was restrained and altered in the Reign of Edward the Third And now our Laws are made more tender of life though it be of such great Malefactours that so they may be punished or discharged by the hand of the Law onely which nulli facit injuriam And although then none could be outlawed but for Felony yet as he saith there that afterwards in Bracton's time and somewhat before Process of Outlawry was ordained to lie in all Actions that were Quare vi armis which Bracton calls Delicta for there the King shall have a Fine But since saith he by divers Statutes speaking in general of such Proceedings and not of any Court in particular Process of Outlawry doth lie in Account Debt Detinue Annuity Covenant Action sur le Statute de 5 Rich. 2. Action sur le Case and in divers other Common or Civil Actions But to go on he saith farther in his Chapter of continual Claim Sect. 437. That there may be other Causes of reversal besides the want of a Proclamation and that by plea for matters apparent as in respect of a Supersedeas variance or other matter apparent in the Record And yet in these Cases saith he some hold That in another Term the Defendant is driven to his Writ of Errour And farther if the Defendant be arrested by a Capias utlagat he ought not to be discharged out of custody without a Supersedeas for the same as appears by the last mentioned Statute of the 13. of the now King the like certainly is requisite in case where his Goods or Chattels are taken or else if he be taken and would reverse the Outlawry then he may have a Habeas corpus to bring him into Court to reverse such Outlawry But if all the Process to the Outlawry be well returned entred and filed then there is no way to reverse the same but by Writ of Errour which comes in the next place to be handled How to reverse an Outlawry by Writ of Errour IT hath been a received Opinion that no Writ of Errour lies returnable in this Court upon any Action brought by Original Writ in this Court but that it must be returnable in the High-court of Parliament but certainly that must be intended where Judgment is had and obtained upon such Action for every Writ of Errour supposes a Judgment of the Court given for the words in every such Writ are Si Judicium inde reddit sit but in this case where it is no
Imparlance without consent or special rule but if upon or after those returns an Imparlance of course In London or Middlesex if the appearance be before Chrastin Ascensionis Domini or before the last return of any other Term no Imparlance without consent or special rule but the Defendant to plead as of that Term within 14 days after the end of the Term upon rule given to answer but if of Crastin Ascensionis or the last return then an Imparlance of course If a Writ be returnable Quinque Paschae or the last return of any Term the Defendant giving rules and calling for a Declaration if it be not delivered four days before the Essoin-day of the ensuing Term or more a Non-suit to be entred And likewise in the Court of Common-Pleas by their Orders made and printed in the year of our Lord 1672. If the Defendant appears upon an Arrest upon a Clausum fregit which is a general Writ and may be said to be the Common-Pleas Latitat he must have an Imparlance of course but if the Writ whereupon he was arrested be special according to the truth of the action and returnable the first or second return in any Term so as a venire facias may issue forth there the Defendant ought to answer the first Term in all personal and mixt actions but in real actions the Defendant shall have one Imparlance of course So that it appears by this order of the Common-Pleas that the true reason of the Defendant's having an Imparlance is grounded upon his not knowing by such a general Writ what he is arrested for But here it may be objected that there will not at any time need such an Imparlance in this Court because as is said before it hath been always the constant course of this Court to set forth the true cause of action in the Capias or such like Writs that so the Defendants may know what they are to appear to In answer of which not denying but agreeing wholly with what is objected it was the opinion of a very learned Judge of this Court lately deceased and who was also formerly a Judge in the Common-Pleas and so did very well understand the practice of both Courts when an Attorney for a Defendant by Summons appeared before him did order that Attorney to take a Declaration in an action of the case by Original Writ although his Client had been sued to the Exigent but in trespass onely and his reason was that the onely end that the Plaintiff had to sue the Defendant to the Exigent was but in order to make him appear to his suit and now that he had appeared it was but reason he should take a Declaration in any other personal action by Original that this Court could hold Plea of And for the Entring of these Imparlances as it is in the Common-Pleas so it is in this Court there are Imparlance Rolls on which the Declaration and Imparlance are entred and Issue rolls on which the said Declaration and Issue are entred and if the Imparlance roll be right and the Issue roll be wrong the Imparlance roll is the Warrant to amend the Issue roll by but if both happen to be wrong then they are to be amended by the Original Writ it self which is the ground of all the subsequent proceedings How to plead an Outlawry either in abatement or bar of any Action THe first thing you are to doe is to come to the Filizer where the action is laid and search with him in his Exigent Book to see if such person as you look after be Outlawed if so then to bespeak of him a general Capias Vtlagat then seal it and affix it to your Plea for if it be pleaded in disability of the person it must be pleaded as my Lord Coke saith * First Institutes fol. 128. b. forthwith sub pede Sigilli unless the Record be in the same Court But if it be pleaded in Bar and it be denyed there must be a day given to bring it in and if a man be Outlawed at the suit of any one man all men shall take advantage of this personal disability If a Defendant plead an Outlawry in the Plaintiff in disability of his person and the Plaintiff after that purchase a Charter of Pardon the Defendant shall answer because the Charter hath restored the Plaintiff to the Law So note the disability abateth not the Writ but disinableth the Plaintiff untill he obtaineth a Charter of Pardon or reverseth the Outlawry some other way If the ground or cause of the action be forfeited by the Outlawry as my Lord Coke saith in the place before mentioned then may the Outlawry be pleaded in Bar of the action as in an action of Debt detinue c. but these as is said before this Court hath not used to hold plea of by original Writ and why it hath not I know no reason but the custome of the Court for the Statute of the 25. of Edward the 3. Cap. 17. The title of which Statute is thus Process of Exigent shall be awarded in Debt Detinue and Replevin saith in general speaking of no particular Court of Common-Law in these words Item it is accorded that such process shall be made in a Writ of Debt and Detinue of Chattels and taking of Beasts by Writ of Capias and by process of Exigend by the Sheriffs return as is used in a Writ of accompt Which as by the Statute of the 52. of Henry the 3. Cap. 23. appears was against Bayliffs of Lords by attachment of their Bodies so here after the Exigent returned it is by Capias Vtlagat But in real actions or in personal where Damages be incertain as in Trespass of Battery of Goods of breaking his Close and the like and are not forfeited by the Outlawry there the Outlawry must be pleaded in disability of the person And in the aforementioned Orders and Rules of this Court among others it is ordered in this case that in the pleading of an Outlawry the mean process be not repeated but the Exigent and Outlawry joyned to the commencing of the suit The Court then being very tender and carefull of putting the Subject to any unnecessary charge made the Pleading to be as short as possibly it could And thus much may suffice as to this manner of Pleading Where Suits by Original Writ ought to be laid and when the Visne may be altered AS to this matter it lieth wholly in the breast of the Court upon motion in what cases to permit the changing or alteration of the Visne but generally the same is never granted but upon some Affidavit and by the former Orders and Rules of this Court before recited It is ordered that actions upon the Case Trespass for Goods Assault or Imprisonment arising in any English County be laid in their proper Counties unless they arise where the Justices of Nisi prius seldom come and because Trespass and Trover for Goods Battery Imprisonment and Slander
remaining in the hands of Christopher Hoddesdon James Tetlowe Richard Antrobus and Richard Barnett wherein some of these Fees were written whereby we are induced to believe the said Fees in the said Books or Notes contained to be anciently due and payable the Copies of which Books or Notes so to us produced according to our charge in that case we are ready to shew to his Majesty's said Commissioners together with this our Certificat And we do farther certifie that we know not of any other Books Rolls Deeds Records Orders Tables Notes or any other Writings Memorandums or Warrants which may give any farther testimony concerning the premisses except one Note or Book remaining in the hands of William Langhorn Robert Redwood William Harvey Francis Beard Laurence Gibson Christ Hoddesdon James Tetlowe Stephen Bunce Lewis Bromhall Robert London William Tompson Thomas Farrer Simon Harborn Richard Brittain Richard Barnett William Small Edmund Denny Nicholas Tippett Thomas Powell Richard Antrobus John Green John Badger Felix Wilson Robert Clark Ambrose Mudford Richard Slater William Jumper William Leach Gilbert Barrell John Dobbins These Fees following were not certified in the former Verdict but thought fit by most of the Jury to be left out as things not inquirable or comprehended within their charge To the Associate for entring a Cause in the Lord Chief Justice his Book 11 08 To the Sheriff for the Return of the Venire fac ' 00 04 For Return of the Distring ' 02 04 For the Sergeant for summoning the Jury 03 04 To the Marshal 02 00 To the Crier 01 00 To him for swearing every Witness 00 04 To the Sheriff for a Tales 02 00 To the Associate for a Tales 02 04 To him for a Default 02 04 To the Hall-keeper for the Green-cloth 01 06 If it be in the Night to him for Lights 00 06 To the Bar-keeper 01 00 To the Sergeant for keeping the Jury 01 00 To the Jurors 08 00 Innovated Fees To the Associate for taking out of a Record not tried 02 00 Which began first about twenty years past  To him that Readeth the Records and evidences and taketh the Verdict 01 00 Which hath continued about thirty years  To the Judges Foot-cloth and Horse-keeper for every Cause 01 00 Which hath been above thirty years  To the Associate for the Return of the Postea 02 00 If the Verdict pass for the Defendant or the Plaintiff be nonsuited then there are these Fees taken of the Defendant again To the Marshal 02 00 To the Crier 01 00 To the Foot-cloth keeper 01 00 To the reader of the Record 01 00 This use began about nine years past  Also for every Remanet where the Plaintiff is not in default the Associate taketh for entring the Cause again in the Lord chief Justice his Book if he will have it tried 11 08 This hath been used above twelve years Fees paid in our memories for a Nisi prius in Middlesex To the Associate for entring the cause in my Lord's Book 11 08 To the Sheriff for the Return of the Venire facias 02 00 To him for the Summons and the Distr ' 12 00 To the Judges Marshal 02 00 To the Crier 01 00 To him for swearing every Witness 00 04 To the Sheriff for a Tales 02 04 To the Associate for a Tales 02 04 To him for a Nonsuit 02 04 To the keeper of the Juries 01 00 To the Porter 01 00 To the Jury 12 00 Innovated Fees To the Associate for Return of the Postea 02 00 To him that readeth the Record and Evidence and taketh the Verdict 01 00 To the Judges Foot-cloth and Horse keeper 01 00 This hath continued about 30 years  To the Associate for taking out of a Record not tried 02 00 This began about sixteen years past  If the Verdict pass for the Defendant or the Plaintiff be Nonsuited then the Defendant must pay these Fees following again To the Marshal 02 00 To the Crier 01 00 To the Foot-cloth or Horse keeper 01 00 To the Reader of the Record 01 00 This use began about 12 years past  The Marshal's men demand and take for the keeping of the Jury at Nisi prius in Middlesex 03 06 Which is more by 2 s. 6 d. than is taken in like case in London Fees paid in our time to the Clerk that draweth up Special Verdicts in London or Middlesex For drawing it up per Sheet 01 00 For indorsing it per Sheet 00 08 For copying it per Sheet 00 04 Fees paid all our time for drawing a Special Verdict at the Bar. For drawing it per Sheet 01 00 For Copies per Sheet 00 04 Fees paid to the Clerk of the Assizes for Posteas in our memories For returning every Postea the Verdict passing for the Defendant or the Plaintiff Nonsuited 02 00 For drawing a special Verdict per Sheet 01 00 For every Copy thereof per Sheet 01 00 But now the Clerk of the Assizes taketh for returning every Postea with a general Verdict 2 s. if it be long and contain divers Issues then more than 02 00 For two Copies per Sheet severally 00 08 For ingrossing per Sheet 01 00 Fees paid to the Sheriffs during our memories For returning a Cepi Corpus 00 04 For returning a Venire fac ' in London 00 04 For returning it in any other County 02 00 For returning a Scire fac ' with a Nichil 01 00 For returning a Scire fac ' with a Scire feci 02 00 Finis Feod de Banc le Roy. THese were Attornies no doubt of the greatest knowledge in those times and most fit to be concerned in such an Inquiry after the Fees of that Court wherein they were Attornies The three first were Clerks in the Crown Office as I have been informed Hoddesdon was afterwards Secondary of the Court Small of Furnival's-Inn Denny of Clifford's-Inn Slater one of the Clerks of the Nisi prius Office in this Court Leech was the now Secondary's Master Barrell Clerk of the Rules some of these I knew and the greatest number of them that did so present as aforesaid were Clerks to the then chief Clerks and it may be some of them were well known to some of the now Judges Officers and Attornies of this Court and it is strange that they should not understand well their Master's Fees above all others and yet these Attornies have presented those Fees for entring Issues by Original to be due to the Filizers which the now chief Clerk claims to be due to him and the same Attornies that presented theirs at the same time presented the then chief Clerk's also which Fees cannot be admitted to be his due and the Filizers Fees presented denied to be their due except it must be presumed they swore right and were very honest men as to one part of the said Presentment and perjur'd and very dishonest men as to some other part of it which cannot be for Juramentum est
upon admission into any vacant place It is entred in this Court Termino Paschae An. 33 Elizabethae upon one Hilsdons a Filizer's Rolls at the beginning of the Rolls thus Memorandum quod cum W. L. gen seit The Entry of his admission Sile. Paschae 38 H. 6. rot 73. Mich. 26 27 Eliz. rot primo Mich. 8 Car. primi rot primo existen de in officio Filizar pro Com. B. B. idem W. die c. prox post c. isto eodem Termino coram Domina Regina apud Westm in propria persona sua ven ex mera spontanea voluntate ipsius W. sursum reddidit in manus C. W. Mil. Capitalis Justic dominae Reginae ad placita coram ipsa Domina Regina tenend assign Officium Filizar dictor Com. B. B. praedict Et idem C. W. adtunc ibidem praedict Officium Filizar dictor Com. B. B. Thomae Hilsdon gen tunc praesent in Cur. dedit concedit ad dictum Officium Filizar Com. B. B. praedict praefat T. H. adtunc ibidem admisit Habend Tenend Occupand Exercend sibi ut liberum Tenementum suum c. cum Feod vad proficuis eidem Officio incumben de antiquit debit consuet Et dictus T. jurat est Secondly As to the nature of his Office you see by his Oath aforesaid He is bound truly and diligently to extract all Fines Issues and Amerciaments due to our Sovereign Lord the King arising in his office and so he is also bound as the King's Clerk in Term-time to attend the Grand-jury for the body of the County of Middles where the King's Court of his Bench is now resident or where-ever else it shall be in England to draw the Inditements that they are to present and if occasion to ingross them but it hath been usual of late years for such Filizer to whose lot it falls being appointed thereunto by the Court to get one of the Clerks of the Crown Office being always ready in Court to attend and perform this service for him And for a farther account of the nature of his Office it will not be amiss here to set before you a Copy of a Narrative delivered me by a late Cap-officer of this Court which was heretofore as is conceived addressed by one Edgar Filizer of London in this Court and other the then Filizers thereof by way of Petition to the then Judges of this Court about the year of our Lord 1630. And some short time before that the said Presentment in the Title page mentioned was made of the Fees of all the Officers of this Court and taken by virtue of his then Majesty's Commission under his great Seal of England a part of which Commission together with a Copy of the said Presentment you may find placed at the end of this Treatise In which Narrative or Petition rather it was thus then declared and set forth That the Filizer is the onely immediate Clerk and sworn Ministerial Officer in this Court for the King 's assured and true service therein By whose duty through continual and constant use and former practice in the Law diligently performed great increase of profit hath been in all former Ages in a very great measure augmented yearly unto the Crown of England untill of late years and now that the Statutes de An. 2 H. VI. cap. 10. and 5 6 Ed. VI. cap. 16. are so neglected as that through gross ignorance daily abuses of right Entries and Proceedings upon Original Writs have so changed and altered the right institution of the Law in that Point to the scandal and slander of the Law that the wonted yearly profit of the Crown of England is thereby stopped and diverted and the People of England much grieved and oppressed all which happening through the innovated incroached and intermixed practice illegally of the Servants of the Chief Clerk who being no immediate Clerks of the King nor sworn for performance of true Service to him and having neither Offices to be seised or places to be fore-judged of they corrupt usurp and abuse the process practice and Offices of the said Filizers by making process to and of Outlawry in the name of the Filizers without their privity or consent and afterwards never file the Writs of Exigent by which Fraud the King's Majesty is deeply prejudiced both in the real and personal Estate of the Party outlawed by common Bayl 's taken by consent of such Servants or Clerks to the Chief Clerks And there is or ought in Law to be the King's Clerk the Filizer constituted upon oath to perform and doe these Services for the King and People for every City and County of this Kingdom upon forfeiture of his Office if found in any Fraud committed All which with divers other Enormities and Abuses the then Filizers offered and were ready to make appear to the said Court Vpon which it appears that the then Filizers did satisfy the then Judges of this Court of the nature and duty of their Offices And what it was then it continues so still being since that never altered by any Act of Parliament or any other due course of Law And that as formerly so now much profit will accrue to the Crown of England by proceedings grounded upon Original Writs and therefore ex debito Justitiae ought to be incouraged in this Court is very plain and obvious And seeing it is the duty of every loyal Subject of what degree soever to advance the Revenue of his Prince as much as he can by discovering all legal ways and means by which it may be obtained so much more of him or them that are not onely Subjects but also Officers of the Court under him as is before said the Filizers of this Court are And first of all great profit would accrue to the Crown of England by such proceedings in respect of the great number of Original Writs that would issue out of the High-court of Chancery yearly more than now do whereby the Seals in that Court would much increase Secondly in respect of the many Fines more than now are that would be paid upon such Originals yearly whereby his Majesty's Fines in that Court would be also much increased And thirdly in respect of the great number of Writs that would be sealed in this Court of King's-bench by his Majesty's Green-wax Seals more than there is at present whereby the yearly Revenue thereof would likewise be much augmented for if any Defendant be arrested by a Writ of Capias ad respondend upon an original returnable in this Court then indeed one Writ serves but if the Plaintiff cannot thereupon arrest him as commonly it falleth out so then is he forced to take out an alias Cap. and after that a plur Cap. and if he cannot arrest him upon either of these two last then he takes out an Exigent and Proclamation and all this is in the Law a favour to the Defendant