Selected quad for the lemma: cause_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	defendant_n	judgement_n	plaintiff_n	1,984	5	10.5099	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A78485	Certaine proposals of divers attorneys of the Court of Common-Pleas, for the regulating the proceedings at law, and remedying some inconveniences: whereby the clyent will be much secured, the processe shortned, the greatest part of the charge of most suits abated, many unnecessary suits in law and equity prevented, and the creditor and purchaser well provided for: and thereby lending, trade and commerce advanced: which is the end and desire of the proposers. / Presented to the honourable committee for the regulating proceedings in law Decemb. 5. 1650.		1651 (1651)	Wing C1728; Thomason E622_7; ESTC R206432	18,583	22

They humbly conceive it fit There is by reason the Civil Law hath no compulsary Processe no remedy but in Chancery for Legacies where if the Legacy be smal it is quickly spent with a great overplus that some legal course were provided for the recovery of Legacies and that the Clyent should not be forced to an equitable course in Chancery for every petit Legacy the remedy whereby often proves worse then the disease They therefore humbly propose that an Action of debt Trover detinue or other action as the case requires may lye at common Law for the same and that therein the thing demanded upon due proof made upon the tryal may be recovered with costs and dammages and like defence and processe may be had therein as in such other Actions are or shal be used at Common Law 13. As the Law now stands the heire may defeat all creditors for if he fear the debts of the Ancestor he may alien the same day his Ancestor dies and leave the creditor no medium to bring his action and though it is true that fraud may be averred yet few frauds are hard to be proved They humbly conceive it very hard to the creditor that the bare alienation of an heir should defeat him of a just debt the same being often done meerely in fraud when perhaps the creditors money purchased the Land discending and therefore they humbly propose that an Action of debt may lye against the heire in all cases as wel after as before alienation and that his Person Goods and Land may be subject to the execution for the debt of his Auncesters upon specialty to the value of the Land discending in Fee simple or Fee tayle and that such action and this proposall may if the Parliament shall conconceive meet be extended to the heires of Copy-holders as wel as Freeholders 14. Many persons run into debt to buy Land gaine liberty in prison and there live upon other mens Estates and laugh them to scorne which this it is hoped may provide against They humbly propose that in case any debtor shal continue in prison upon any execution or Processe of Law for due debt above a year or continue outlawed after judgement above a year after notice thereof that then at the prayer of the Plaintiffe a Writ in the nature of a fierifacias may issue out of the Court from whence the Processe issued whereupon he continued so in prison directed to the Sheriffe whereby the said Sheriffe shal be impowred to levy the said debt and costs by the sale of the Lands Goods Tenements and other estate which such debtor shal have in possession use or trust in the hands of another and satisfie the creditor therewith so far as the same wil extend and then the prisoner thereupon to bee discharged And whereas the Creditor is often defrauded of his just debt by the frauds and coven of Executors and Administrators For remedy thereof they humbly propose that in all cases where Executors or Administrators shall suffer Judgement by Nihil dicit nonsum informatus or confession that Assets shall be presumed and execution issue immediately against their Persons and estates and that upon all Tryalls of plene administravit the defendant shall exhibite a true Inventory and the Judge before whom such Tryall shall be had may be authorized to examine such defend or defendants upon oath to the truth of the same or other wise Assets to be presumed provided that in case the party defendant shall happen to besick or have necessary occasion to be absent at the time of the said Tryall that then if the defendant or defendants shall come be-before fore any Judge of the same Court where such cause shall be depending before the said Tryall At this day if an executor give Judgment by default the plaintiffe must either procure the Sherriffe to returne a devastavit which will not be had but by bribes and security or else he must proceede by way of inquiry which is a very questionable way and as seemes very dangerous for defendants for if an Inquest of office finde assetts the defendant hath legally no remedy though in strict Law he hath no way to avoyd it having no day in Court after judgement nor attaint against the Jury and now because the Civil Law hath no compulsatory processe it is hard to charge Executors or Administrators with an Inventory and those that are then delivered in are carelesly received and the oath for the truth thereof too often not duly administred and exhibite an Jnventory and be examined to the truth therof upon oath or shall come before any two Justices of the Peace of the County where such cause shall be tryed giving the plantiffe or his Attorney notice therof and shall there exhibite an Inventory and be examined upon oath to such reasonable questions as the plaintiffe or his Attorney or such Justice on his behalf in his absence shall propound concerning the truth thereof that then such Inventory shall be as effectuall as if the same had beene exhibited in forme aforesaid upon Tryall of the said cause and that the Judges and Justices aforesaid may be impowred to administer and examine upon oath as aforesaid 15. They humbly propose The present inconvenience concerning Tythes is very great the Civil Law not having power to proceed and the Common Law onely for predial Tythes wherein though treble dammage be given yet because there is no costs they are not worth suing for unlesse of some considerable value and Justices of Peace few of them being Lawyers cannot wel judge therein that in case the Parliament shal thinke fit to continue payment of Tythes that then an Action of debt detinue or trespasse may lie generally at Common Law for the same as wel before setting forth as after wherein dammage and costs may be recovered as in other like Actions at Common law 16. They humbly propose that for the avoyding of unnecessary and frivolous suits at Law that it may be enacted that if any Attorney or Sollicitor shal deposite in the defence or prosecution of his Clyents cause any other or larger summe or summes then so much as the charge thereof shall surmount unto in Easter Terme Trinity Terme and the short Vacation or in one other Terme and Vacation that then such Attorney or Sollicitor shall be without all remedy to recover the same against the Clyent at Law 17. And for the further avoyding of the frivolous suits at Law In Replevin at Common-law tender of amends before impounding in all cases was a good barre and by the Statute 21. Jac. in trespasse for involuntary trespasses tender of amends is made a good plea being done before Action brought but because many times impoundings and actions are made and brought perhaps before the Defendant hath any knowledge of the trespasse this proposall is presented But for voluntary trespasses it is conceived fit to leave them at the Common Law to prevent

in forme aforesaid that then Rules having been duely given in Court to that purpose judgement shall be given against such Defendant by his default and that in all personall actions issues may be returned upon the Venire facias The proceedings to triall upon the Venire facias wil bring many causes to triall a Terme sooner and wil ease the charge about 4 s. 11 d. in a Cause Writs of nisi prius awarded and trials had tales de circumstantibus granted thereupon as formerly upon the habeas corpora distring as jurat provided the Jury be returned ten daies at least before the trial of the cause and that no Essoyne shall or may be allowed upon the returne of any of the said Writs of summons or venire facias and in all other proces the ancient course to be observed which is onely proposed by way of supplement It is not proposed that the Writ of Capias shall be taken away first because many persons have no certain places of abode Secondly the way of summons being a new manner of proceeding the proposers doubt the successe may not answer their intentions and expectations Thirdly because in some cases the party plaintiffe may have just cause to require speciall baile of which if deprived he would be in danger to lose the benefit of his suit and therefore the proposers humbly conceive it better by finding out neerer and cheaper waies to bring the old road to be neglected then to deprive the suiter of the old before he hath experience of the new and not to take away the ancient course of proceeding by way of Capias and Exigent if the case require it But if so then the Exigent to be awarded upon the returne of the first Capias as formerly upon the plur Capias and as it is now used after judgement And for encouragement of the Shieriffs in the due execution of the said processe They humbly propose that the like Fees may be paid upon the Venire facias for summoning the Jury as formerly upon the Distringas jur habeas corpora and that two shillings foure pence may be paid for every Summons to be made the Shieriffe undertaking to doe the same in due time viz. foure pence for a Warrant twelve pence to the Baily that makes the Summons and twelve pence for the Shieriffs regard And that he shal receive likewise twelve pence for the returne of every Summons duely made and that the Plantiffe may lay his Action in the proper County where the cause of Action shall arise notwithstanding the Summons goe out into a forraigne County where the parties dwel and that without the delay of testatums and that so all succeeding processe may issue into any County without testatum 3. They humbly conceive the recovery of Rents The Processe In Replevin at this day is so delatory that if the Plaintiffe will who upon the matter is defendant he may delay the Avowant two or three yeers for after long delay in the County Court he may make a long and delatory defence after removall and discend to issue and triall and then become Nonsuit whereupon the avowant shal have a Returna bahend the Processe whereupon wil spend wel nigh a yeere and then the Plaintiffe may sue a second deliverance which supercedes the avowants Processe and puts him to a new proceeding to triall which wil spend a great part of another yeere but by the course proposed three Terms wil dispatch the businesse as in other cases Services damages for Trespasses and other duties by way of distresse is both a ready and ancient course and prevents many unnecessary suits but by the intricate and prolix processe thereof the same is very much abused and from thence neglected They therefore humbly propose that a nonsuit in a Replevin may be perem ptory against the Plaintiffe and that if the same shall happen upon triall the Jury sworne for triall of the issue may inquire of the Avowants damage But if otherwise then a Writ to enquire of damage to issue and finall judgement to be thereupon given in both cases and that against the Defendant like processe may issue by way of Summons and judgement had as aforesaid without the unnecessary proceedings in the County Court 4. They humbly conceive that the long delay that reall Actions admits is the occasion One halse of all trials on Ejectments fall off upon some defect or other in these points which reach not at all to the merits of the cause that all titles where the entry is not taken away have of late beene tryed in Ejectments which for that purpose are very usefull but there being so many circumstances in sealing the Lease entry and ouster necessary to be proved upon tryall that many tryals have and continually doe miscarry thereby to the great delay and dammage of the Clyent they therefore humbly propose that all Ejectments shall be brought against the present Tennants and occupiers of the Lands in question against whom such processe by way of Summons shall issne as aforesaid And that upon triall of the issue the Lease entry and ouster shall be admitted and the title onely insisted upon and that for the better setling Possessions according to right and by the Common Law it may be provided that if any person or persons after any possession shall be delivered by Writ of hered This is proposed to settle the possession by the Common Law for at this day after the Clyent hath setled the title at Law which often proves tedious enough he cannot settle the possession without a Decree in Chancery and here is no provision made for those that enter to make Leases for triall of titles because they may proceed by Summons against the Tenant of the Land if they wil according to the second Proposall facias possessionem or other legall processe shall again oust the party or voluntarily distribute the possessions so delivered without legall processe warranting the same that then a Writ in the nature of a Writ Redeseisme may issue to the Sheriffe to re-establish the possession in the Plantiffe and to give dammage c. as in case of Redeseisme hath been used 5. They humbly conceive that the Common Barre and new assignment in actions of trespasse The Common barre and new Assignment puts the Clyents in every Action of trespasse quare clausum fregit that comes to triall to at least twelve shillings charge and may be supplied by three or foure words in the Declaration and put the Clyent to no charge at all and the recitall of the Writ in many Actions almost doubles the charge to the Clyent and is uselesse quare clausum fregit and the recitall of the Originall Writ in actions of trespasse and upon the Case and severall other actions are superfluous things and infinitely increase the charge of the Clyent They therefore humbly propose that in all Actions of Trespasse quare causum fregit the place may be

greater inconveniencies they humbly propose that tender of sufficient amends with costs for all involuntary Trespasses may be a good barre in all Replevins and Actions of Trespasse brought for the same so that the same be done before the Rules be out for pleading in such Action 18. And for the reliefe of distressed Widdows that have no Joyntures By the Common Law the Widdow cannot intermedle with the Inheritance of her husband till her dower assigned or recovered by Action and the processe is so delatory therein as that she may perhaps be two or three yeeres before she shall have her Dower assigned by Law besides the great charge and twenty accidents may abate the suit to set her how to begin and lose her costs as death of Tenants marriage entry upon any part of the Lands c. they humbly propose that it may be lawful for them to hold and enjoy all the Lands whereof the husband died seized of any estate in Fee-simple or Fee taile in Demesne in common with the heire until such time as the heire shal assigne her or them Dower to the value of a ful third part thereof in severalty and that of all Rent and other Inheritance and services whatsoever whereof she is Dowable and the husband dies seized she may take and seize or have and maintaine all Action of Debt or distreine and avow for a third part thereof until such assignment And that this proposall may extend to Coppyhold Lands where the wife is Dowable as wel as Freehold 19. And for the avoyding many unnecessary At Common Law solvit ad diem or nil debet is no plea to a simple obligation or Bil because the same is not of so high a nature so that if the Plantiffe were knavish in all the cases in this proposition he might force the Defendant into Chancery where both Plaintiffe and Defendant spend on the Defendants part prolix and costly suits in Equity they humbly propose that to all Bils Bonds and other specialties for payment of money or delivery of goods or ware which are payd or delivered and accepted by the Plaintiffe though not at the time and place nil debet per primam may be a good plea for the Defendant And that in all other cases the Defendant may plead or alledge quae prist à payer and tender in Court the principall debt or other duty with Interest and charges or if part onely be paid or delivered and accepted the Defendant may be admitted to alledge the same and alledge prist à payer or deliver for the residue and tender in Court the residue of the debt or other duty with interest and costs and that in both cases the Plaintiffe shal accept thereof or be clearly barred of his Action in case he shal take issue thereupon and it be found against him and that like pleading and tender may be allowed and received upon Mortgages within seven yeeres or some other certaine time or number of yeers after forfeitures and that after such time elapsed no Mortgage may be redeemable either at Law or in Equity 20. And further they humbly propose that to take away occupacy estates for life may be deviseable By the Law at this day if a man that holds for another mans life happen to die and have not assigned over his Estate he that next happens possession though a stranger in strict Law goes away with the state wherein though the Law directs the state upon very just ground viz. that in equali jure melior est conditio possidentis yet because many inconveniences happen hereby this Proposall is submitted to judgement and in fault thereof discendable to the heire and make the heire subject and lyable to the debt of his Ancestor to the value thereof 21. And lastly where as the Parliament hath lately enacted that the Defendant may in all eases plead the generall Issue For if the Defendant being an Executor shall plead non est factum to a Bond which is conceived to be the generall Irsue the plaintiffe shal be put to prove the Bond sealed and delivered that the Defendant administred and hath assets and then the Defendant may prove payment or that the Bond was made per dures c. and many other cases are brought within the same mischiefe and give the speciall matter in evidence which they humbly conceive may be of great benefit and ease to the Defendant yet it may be of infinite inconvenience to the Plaintiffe who thereby wil be necessitated to very great charge in bringing to the trials of such Issues many witnesses that otherwise might have been spared besides the many dangers that wil inevitably fall upon the Plaintiffs to the losse or hazzard of their causes For the preventing of which mischiefe it is humbly proposed that by way of supplement to that Act it may be provided that in all cases where the Defendant shal plead the general Issue and intends upon the trial to relie upon any speciall matter the Defendant or his Attorney pleading such plea shal upon the tender of the said plea or at least fourteen daies before the trial of such Issue give a note in writing under one of their hands to the Plaintiffe or his Attorney of the contents of such special matter whereupon the Defendant wil relie at the trial of the said cause and to be concluded to give in evidence any other special matter whatsoever and that the Defendant may not upon any trial relie upon two special matters of justification and that that act may not extend to Replevins nor that the Plaintiffes put to prove any thing in relation to the maintenance of his Action that such speciall matter had admitted if duely pleaded FINIS