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A54680 The ancient, legal, fundamental, and necessary rights of courts of justice, in their writs of capias, arrests, and process of outlary and the illegality ... which may arrive to the people of England, by the proposals tendred to His Majesty and the High Court of Parliament for the abolishing of that old and better way and method of justice, and the establishing of a new, by peremptory summons and citations in actions of debt / by Fabian Philipps, Esq. Philipps, Fabian, 1601-1690. 1676 (1676) Wing P2002; ESTC R3717 157,858 399

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Soul of Trade and their growing and already gained Riches there may be reckoned in their two Sheriffs Courts twice every week in the Year holden no less than two hundred Actions and Arrests weekly entered and made upon Debts which makes no more disturbance than a quiet putting in of Bail which secures the Debt more than it was before And in all the Counties Cities and Corporations of England and Wales as well as in the City of London the death of a Bailiff Serjeant at Mace or Catchpole is not to be found in the remembrance of the most aged persons And the Writs and Records of the Courts of Westminster from which very many Writs and Proces do Issue and are to be returned into cannot shew any frequency of Writs of Rescues or any assaults made upon the Sheriffs or their Bayliffs in the Execution of them And if the Proposers of this Bill and great Alteration of the Laws will not think themselves to be prejudiced if they should speak according to the Truth and what every man upon the visible evidence of demonstration and Records may rationally believe It cannot be denied but if there be in one County or City two Thousand Writs or Actions of Debt made out in a year to Arrest not above five hundred of them do proceed or come to Appearance and that of that five hundred unagreed there are scarce half of them that are declared against or make any defence and not half of that half ever come to be tryed and that those do also most commonly come to an end or determination Where there is no Demurrers or matters of difficulty in Law or peevishness in some of the parties to occasion the contrary within less than a third Term that many thousands of Actions are both in the Superior courts at Westminster and the Country and hundred court Barons and the inferior Courts determined within a few days weeks or months very many in a quarter of a year and those that remain uncompounded and undispatched do not survive the contention or trouble of half a year after the Suit commenced or begun So that all things considered if the Laws and Praxis in Scotland France Spain Germany Italy Holland Brabant and all the other Kingdoms and Provinces of the Christian world civil and municipal shall be rightly compared with our more happy less troublesome and chargable they will not be found to afford to their people such a quick dispatch of Justice adaequate and ready way unto it as ours have done and will always do if they be not turned out of their old course and channel By an Invention now proposed which will be as illegal as unparallel'd and hath no other precedent or pattern then that late way of proceeding in Actions of Ejectment hatched in the leveling or Oliverian times and hath then and ever since amongst knowing and good men gained no better an esteem then that of a publick grievance and a monstrum horrendum informe ingens cui lumen ademptum spawned and bred up in a Rebellion when Monarchy was Banished and the word of God and Laws of the Land were shamefully and as much as they could be misused For that there is an absurdity confusion and Hysteron Proteron in it putting the Cart before the Horse and making a Declaration which should be after a summons Executed and Appearance entred to precede the Appearance and at the same time go along with the Summons with a prefixion but from one Terme to the next which betwixt Easter and Trinity Terme being but with an Interval of seventeen days Sundays not excepted will be too short peremptory and prejudicial to Defendants and in the Lent Vacation which is commonly three Months and the Summer Vacation which is never less than 15 weeks and sometimes longer may be as inconvenient to Plaintiffs who by the ancient and more legal prefixions with the small distance of time of 15 days from return to return in the Term time might sooner have recovered their Debts appoints no Tryal by Juries nor declares by what certain Authority or Court the Summons shall be made whether by the Parties Plaintiffs or otherwise and gives a promiscuous Conusance of Pleas to all the Courts of Law at Westminster when as all but the court of Common Pleas some cases of priviledge excepted have by our ancient Laws and Magna Charta no jurisdiction or right therein Makes the Summons for a time to come to falsifie the Declaration if at the same time deliver'd with it to suppose it to be already made and the Declaration which supposeth it to be already made and is and ought to be a copy of the Record in the Court wherein the Action is pretended to be laid and intended to be Tryed to say he was Summoned when he was not the Fieri to be a Factum and the future to be a past or present and will create some contradictions when the injured defendant shall come to wage his law make Affidavit of a non Summons or bring his action for damages sustained by a false Affidavit or returne And will be sure enough to produce as necessary effects of causes very many not easie to be altogether foreseen or enumerated mischeifs and inconveniences Overturn and mutilate all our fundamental Laws upon which the Monarchy of England the best of Governments and less arbitrary in the world and the Justice of our Nation have for above one Thousand years been built and established and cut and canton both it and our well tempered Monarchy into little pieces and bring them as near as may be to an unhappy Republique which will neither fit or be for the good of the Nation Deform or almost annihilate our long approved Courts of Justice at Westminster by taking away a great part of the Process and excellent Formes and Proceedings thereof as Adonizebek is said to have done to his Captive Kings when he did cut off their Thumbs and great Toes destroy a great part of the Kings Prerogative which limited and bounded by our Laws and our Kings and Princes Concessions is no more than his just and necessary means of Government and in and by his High court of Chancery superintends over all the Courts of Justice in the Kingdom And as to the Law and Latine part of it and granting out of Writs remedial under his Teste meipso will appear to be a Court as antient as the reason and civility of the Nation from which all the other Courts of Westminster-Hall Country-courts Sheriffs Turns Court-Leets and Baron and all other Courts inferior in the Realm may truly be said to have their beginning the Matrix or Womb of all our Fundamental Laws either before or since Magna Charta which had its birth and being from it the Repository under the King in the absence of Parliaments of Justice in all cases where an appeal to the King or Parliament or the helps of Parliament shall be necessary the Custome of the Nation