Eliz. Co. B. adjudged If a Beast be unruly in the pound and is like to leap over the pound it seemes the distrainer cannot justifie the tying him to the pound nor the fettering of him Broo. Trespasse 250. 27 Ass pl. 64. None shall distrain wrongfully upon the penalties provided upon the Statute of Marlb West 1. 16. 3 E. 1. None shall procure any to distrain another to make him appear at the County Court or any other inferiour Court on purpose to vex him and put him to charge and trouble on pain to make Fine to the Lord Protector and to pay the party grieved trebble damages West 1. 36. 13. E. 1. An Axe that is in a mans hand cutting of wood nor goods that are impounded and in the custody of the Law cannot be distrained being distrained already Damage-feasant If one distrain my Cattell or Goods without any cause or colour that is not good and just or if a man having distrained my goods will not tell me requiring it and offering to give satisfaction for what cause he distrained them or if having cause to distrain he do distrain Beasts not distrainable as Beasts of the Plough or Sheep or if having distrained Beasts distrainable he afterward abuse them as if being a Horse or an Oxe he work it or being unruly he setter it or lay it so as it be thereby hurt or if he put the Distresse in an unknown place that I cannot tell how to come to it to feed it or if he take them out of the County and put them into a Pound in another County or if he distrain them in a place not distrainable In all these cases I may have an Action of Trespasse against him Co. 8. 147. Doct. St. 112. F. N. B. 47. What goods may be taken upon an Execution EXecution is a Judiciall Precept issuing out after Judgment properly called a Fieri facias and lyeth where a man hath recovered in any Action lying in this Court either by default or Verdict then he that hath recovered may have this Precept commanding the Bayliff to levy the monies so recovered of the Goods and Chattells of the Defendant and to bring it into the Court that the party Plaintiff may have it The Bailiff may by vertue of this precept or warrant after Judgement distraine the Defendants goods and detaine the distresse in his hands in safegard till the Defendant hath satisfied the Plaintiff of the condemnation 22 Ass 72. F. N. B. 165. and 4 H. 6. fol. 17. Action The Bailiff upon this precept is to do his utmost endeavour to levy the Money upon the Goods and Chattels of the Defendant and for that purpose to enquire and search if he can finde out any Goods and Chattels of his whereof Execution may be made and it will be wisedome in the Plaintiff to make a diligent search to see if he can finde out any thing to be taken hold of and if he can discover any to direct the Bayliff to it who ex officio is to take it and to sell it and if he cannot sell it he is to return it so and thereupon a Precept called a Venditioni exponas shall be sent to the Bayliff to force him to sell it and pay the Plaintiff Goods taken in Execution must be praised and Execution made of them 27. Ass 72. Where erroneous Judgment is given the Officer which doth the Execution is excused 22. Ass 64. Plowden 194. But the contray if Judgment be given that is void or voidable for where Judgment and Execution is of a thing whereof they have no Jurisdiction there Trespasse lyes against the Officer for executing it but if Judgment be there but erroneous and so void false Judgment lyes and no Trespasse against the Officers Plowdens com 394. If after Judgment a man doth sell his goods to defraud me of my Execution and neverthelesse taketh the profits of them if it be so found I may have Execution of the goods sold by fraud 43 E. 3. fo 2. 22. Ass 72. 50 E. 3. If the Bayliff hath a Fieri facias against a man and before Execution he payeth the mony in this case he cannot do Execution after if he do an Action of Trespasse lyeth against him B. R. pach 12 Car. If the Sheriff open or break any House to do Execution at the Suit of a common person the Execution is good but the party whose House is broken may have an Action of Trespasse against him for the breaking of the House Co. 5. 93. 3. If the Sheriff levy mony upon an Execution and giveth it to the Plaintiff though he never make any return to the Court it is good enough Co. 5. 90. 4. 67. 11. 40. 20 H. 6. 24. 4. If a man hath a Judgment in this Court against the Plaintiff or the Defendant and the Execution is deferred in favour of him the party grieved may have a Writ de executione Judicii from above to hasten it F. N. B. 120. This Writ de executione Judicii is directed to the Sheriff in whose county the execution ought to be done if he will not doe Execution the Complainant shall have an Alias and a Plures with this clause in the Writ of Plures or signifie unto us the cause why c. And if he do not Execution upon this Writ or return not some reasonable cause wherefore he delayes the Execution the party shall have an Attachment against the Sheriff returnable into the Upper Bench or Common Pleas and must be directed to the Coroners returnable as abovesaid to answer c. Goods pawned shall not be taken upon Execution for the debt of him who pawned them during the time they are pawned 24 H. 8. Pledg 28. 4 E. 6. Distresse 75. By Fieri facias or Levari faoias the Bayliff cannot break the door or chest to take goods in Execution for if he do Trespasse lyes against him for the breaking onely and not for taking the goods in Execution 18 E. 4. fo 4. 13 E. 4. fo 9. by Choke notwithstanding 8 E. 2. tit Executors 152. to the contrary If a man letteth to farm by the year Oxen or Cattel and after the Lessee for years is condemned in an Action of debt these Cattell and Oxen demised during the term cannot nor shall not be taken in Execution for this debt 22 E. 4. fo 10. A Bayliff cannot pull the latch to open the door if it be shut to make a Distresse Co. 5. 91. 93. Dyer 67. 224. But if the out door of the House be open the Sheriff may go into the House and take any thing these lyable to Execution and being come in at the open door it seemes he may break open any of the inner doors 18 E. 4. 4. Co. 5. 90. Co. 4. 74. Of the Replevin CAttell being distrained for Rent Damage-feasant c. the Owner of the Cattell must goe to the County Clark or some one of the Deputies appointed in the County for the
its Originall or Prototype Quia origo rerum attendendaâ— And first of the Shire Shire is a Saxon word scyra and hath its etymology from shiran id est partiri to divide as Mr. Lambert saith in his explication of Saxon words Verb. Centur. And Mr. Cambden in his Britania reporteth that Alfred a Saxon King of England was the first that divided this Common wealth into Shires those Shires into Ridings and those Ridings into Weapentakes or Hundreds c. Likewise as Sir Henry Spelman in his Glossarie saith Sunt qui Comitatum distinct ones sub Berengariis Othonibus vel sub Carolo magno apud exteros accidisse opinautur quod de plurimis forte verum fuerit nounullae autem antiquius deprehenduntur Rem apud nos perspicuam facit Ingulphus si sane fides Rex Alfridus alias Aluredus Aethelfridus qui regnum iniit Anne 871 totius inquit Angliae pagos provincias in Comitatus primus omnium commutavit Comitatus in centurias hundredas in decennas id est tithingas divisit Which strenous authorities are sufficiently valid to prove the originall of Shires and their divisions The Republick being thus disunited or dissected into Shires every Shire is intirely governed by one Officer called a Sheriffe or Shire-reeve Vicecomes compounded of these two Saxon words scyr viz. Satrapia a Shire and reue viz. Praefectus a Governour of the Shire Mr. Cambden thus describes his Office Singulis vero annis nobilis aliquis ex incolis proficitur quem Vicecomitem quasi vicarium comitis nostra lingua Sheriff viz. Comitatus praepositum vocamus qui etiam comitatus vel provinciae Quaestor recte dici potest But in Seldeni Jani fol. 53. 54. you have two Governours of the Shire assigned where he saith Praefectus provinciarum qui antea vice-domini ad Ingulphum reversus est Aluredum in duo officia divisit 1. in Judices quos nunc justiciarios vocamus in Vicecomites qui ad huc idem nomen retinent Facessat ergo Polidoras urbinas qui primos a Normanno petit Vicecomites which we now call Vicount a Vice-comite which cometh from our Conquerors the Normans as Sheriffe from our Ancestors the Saxons Also Sir Henry Spelman in his Glossarie saith Quinem autem tunc essent magistratus quos Ingulphus hic vocat Justiciarios Vicecomites non plà ne assequor Reor Aldermanni provinciarum Grevii Saxonice Ealdormen gerefas De Grevii saith he tamen munere nec habeo definitum discrepare enim videtur a Vicecomite quod hic tum adhuc comitis esset vicarius ille regis officialis unde in Anglo-Saxonum legibus atque ipsius Aluredi Cyninger gereþan id est Grevius regis vel ut Latine saeâ—ius reditur Praepositus regis appellatus est And that he is Governour of the County the words of his Patent import as much viz. Commissimus tibi custodiam comitatus So that he is an Officer of great antiquity trust and authority having formerly from the King as now from his Highnesse the Lord Protector the custody tuition and command of the whole County Co. l. 4. 33. Mittons case The aforesayd Alfred at the division of the Kingdome into Shires or Counties instituted this Court called the County Court and established Jurisdiction in it granting power and authority to the Sheriffe to heare and determine such matters as by just cause of appellation either for Law or Equity should be brought unto him This Court as it is recorded by Mr. Selden in his Treatise of Tythes was joyntly exercised by the Bishop of the Diocesse and by the Sheriffe or Alderman of the sciregemot or Hundred or County Court where the one sate to give Godes fight the other for puruldre right that is the one to judge according to the Lawes of the Kingdome the other to direct according to Divinity And Sir Henry Spelman in his Glossary saith Comitatum simul regebant pariterque in foro considentes judicia publica exercebant hic secundum jus humanum ille vero divinum LL. Canuti MS. ca. 44. Habeatur ter in anno Burgesmotus i. Civitatis conventus Schiresmotus i. pagi vel comitatus conventus bis nisi Saepius opus sit intersit Episcopus Aldermannus doceat ibi Dei rectum seculi uterque scil Pro suo munere Idem Ladgari LL. ca. 5. sed pro Aldermannus illic comes extat ut supra demonstravimus utrumque recte Nam in comitatu simus considisse reor Comittem relpub partes tueretur Episcopum qui Ecclesiae Aldermannum qui Legem diceret exponeret But at the Norman Conquest this kinde of holding Ecclesiasticall Pleas in the Hundred of County Court was taken away as may appeare by this Mandate of William the Conqueror recorded in Seld. Jani lib. 2. fol. 76. Willielmus Dei gratia Rex Anglorum Comitibus Vicecomitibus omnibus Francigenis Anglis qui in Episcopatu Remigii terras habent salutem Sciatis vos omnes caeteri mei fideles qui in Anglia manent quod Episcopales leges quae non bene nec secundum sanctorum Canonum praecepta usque ad mea tempora in regno Anglorum fuerunt communi consilio Archiep. meorum caeterorum Episcoporum Abatum omnium principum Regni mei emendandas judicavi Propterea mando regia authoritate praecipio ut nullus Episcopus vel Archidiaconus de legibus Episcopalibus amplius in hundredo placita teneat nec causam quae ad regimen animarum pertinet ad judicium secularium hominum adducant sed quicunque secundum Episcopales leges de quacunque causa vel culpa interpellatus fuerit ad locum quem ad hoc Episcopus elegerit nominaverit veniat ibique de causa sua respondeat non secundum hundredum sed secundum Canones Episcopales leges rectum Deo Episcopo suo faciat All actions whatsoever were brought in this Court before the Sheriff as it is reported by Mr. Lambert in his Archeion in that particle of the Lawes of Edgar to our matter in hand Viz. Let no man seeke to the King in matter of variance unlesse he cannot finde right at home But if it be too heavy for him then let him seeke to the King to have it lightned The very like whereof in effect is to be seene in the Lawes of Canutus the Dane sometimes King of this Realme out of which Lawes may be collected foure things First That every man had meanes and was authorized to sue and commence their Actions in this Court in their owne Shire or County Secondly That no man ought to sue out of the County or to remove or draw his plea from thence without good cause both which things do plainely appear in the letter of this Law Thirdly That the King himself had a high Court of Justice wherein it seemeth that he sate in person as these words do demonstrate Let him not seek to
quod sit ita justus quod ob vindictam vel cupiditatem non quaerat versus tenentes Domini vel aliquos sibi subditos occasiones injustas per quas destrui debeant seu graviter amerciari The difference betwixt Court-Leet and Court Baron HAving travelled thus far in this pen-beaten way we will now inquire the difference between Court-Leet and Court-Baron and here these Courts differ from Court-Leets in divers respects and first in this that Court-Barons by the Law may be kept once every three weeks or as some thinke as often as it shall please the Lord of the Mannor though for the better ease both of Lords and tenants they are kept but very seldome but a Court-Leet by the Statute of Magna Charta cap. 35. 31 E. 3. cap. 15. is to be kept but twice every year one time within the Month after Easter and another time within a Month after Michaelmas 2. Secondly in this that Court-Barons may be kept in any place within the Mannor but a Court-Leet by the said Statute of Magna Charta is to be kept in certo loco ac determinato within the precinct 3. Thirdly in this that originally Court-Barons belonged unto inferior Lords of Mannors but Court-Leets belonged unto the King only 4. Fourthly in this that Court-Barons are inseperably incident to every Mannor so that every Lord of a Mannor may keep a Court-Baron but few have Leets for inferior Lords of Mannors cannot keep Court Leets without speciall prescription or some speciall patent from the King 5. Fifthly in this that in Court-Barons the Suitors are Judges but in Court-Leets the Steward is Judge 6. Sixthly in this that in Court-Barons the Jury consisteth oftentimes of lesse then twelve in Court-Leets never because none are impannelled upon the Jury but Freeholders in Court-Barons of the same Mannor but in Court-Leets strangers are oftentimes impannelled 7. Seventhly in this that Court-Barons cannot subsist without two Suitors ad minimum but Court-Leets can well subsist without any Suitors 8. Eighthly in this that Court-Barons enquire of no offences committed against the Protector but Court-Leets enquire of all offences under High-Treason committed against the State and dignity of the Protector 9. In many other respects they differ as that a Writ of error lieth upon a Judgement given in a Court-Leet but not in a Court-Baron 10. So in a Court-Leet a capias lieth but in a Court-Baron instead of a capias is used an Attachment by goods 11. So in a Court-Baron an action of Debt lieth for the Lord himselfe becanse the Suitors are Judges but in a Court-Leet the Lord cannot maintain any action sor himselfe because the Steward is judge Of the time when and place where this Court is to be kept THE usual and accustomed time is to keep it once every three weeks and although no Court hath time out of minde been holden within the Mannor yet it is not thereby extinct and lost for it is incident to a Mannor of Common right Coo. l. 4. 26. and 6. 27. a. And to the place where it is to be kept it may be kept and holden in any place within the Mannor as the County Court in any place within the County and Hundred-Court in any place within the Hundred for as to every Mannor a Court is requisite and incident to it so is it transitory throughout the whole Mannor and every part of the Demesnes of the Mannor is capable of a Court to be holden there But if it be holden out of the Mannor it is void unlesse a Lord being seized of two or three Mannors and hath usually time out of minde holden at one of his Mannors Courts for all his said Mannors there by custome such Courts are sufficient in Law though they be not holden within the severall Mannors The manner and Method of keeping the Court. THE Court-Baron of A. B. Esquire of his Court-Baron aforesaid held the 18. day of October in the year of our Lord 1658. before C. D. Steward there After you have entered the Stile of the Court command the Bayliffe to make Proclamation O yes c. and say All manner of Persons that have been summoned to appear here this day or have any thing to do at this Court draw near and give your attendance Or if any will be Essoyned or enter any plaints let them come forth and they shall be heard Which Essoyn is thus entred viz. A. B. is Essoyned for suit of Court by C. D. And Plaints are entred in this manner A. B. complains against C. D. of a plea of Trespasse debt or as the case requires And the proceeds upon plaints are the very same as in the County Court Call the Freeholders and those that make default let them be amerced in this manner viz. A. B. Esquire and C. D. Yeoman are Free-holders of this Court and have made default therefore each of them is amerced as may appeare upon their heads Then enter over their heads thus Amerced two pence Then command the Bayliffe to call the Jurors I. D. Jur. C. D. Jur. B. A. Jur. R. R. H. I. D. C. S. T. K. L. F. E. V. W. M. N. R. P. Then call the Foreman to the Booke and swear him after this manner You shall swear that you as Foreman of this Homage with the rest of your fellowes shall duly inquire and true presentment make of all such articles and things as shall be given you in charge and therein you shall spare no man for love favour or affection nor present any man for malice hatred or envy but according as things here presentable shall or may come to your knowledge by information or otherwise So shall you make there true presentment without concealment So help you God c. The Foreman being sworne call the rest by their names and sweare them by soure at a time in this manner The same oath that I. D. your Foreman hath taken before you on his part you and every one of you shall observe and keepe of your parts So helpe you God c. After the Inquest thus impannelled and sworn make another O yes and say You good men that are impannelled draw near and you and all other keep silence during the Charge An Exhortation to the Jury MY MASTERS YOU that be sworne before I give you your Charge I think it necessary to declare by what authority you are commanded hither and for what cause Chiefely you are appointed to be and appeare here being that you are the Lords Tenants and are obliged by reason thereof to appeare at the Lords Court-Baron when it snall be holden according to the Law and Custome of this Mannor that is to say at every three weekes end being warned and being by the same authority there to end and determine injuries trespasses debts and other actions where the debt or damage is under forty shillings And also that nothing be acted within the
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
some times by the agreement of the Attorneys of both parties The Rule or dies datus is when further day is given to the Plaintiff to put in his Declaration or to the Defendant to put in his answer the time given is usually fourteen dayes or more or lesse according to the order of the Court and the agreement of their Attorneys The next Court after the filing of the Declaration and Emparlance given the Defendant is to put in his answer which he pleadeth and saith in bar to avoid the Action of the Plaintiff either by consession and avoidage or denying the materiall parts thereof It must be legall full and perfect for a bad or insufficient plea is in Law as no Plea If Issue be not joyned upon the answer then the Plaintiff is to file his Replication to the answer of the Defendant which must affirme and pursue his Declaration Then the Defendant must put in his Rejoynder to the Plaintiffs Replication which must pursue and confirme his answer for every Rejoynder ought to have these two properties specially that is it ought to be a sufficient answer to the Replication and also to follow and enforce the matter of the Bar. If the parties be not at issue by reason of some new matter disclosed in the Defendants Rejoynder that requireth answer then may the Plaintiff Sur-rejoyn to the said Rejoynder if there be cause but it salleth out very seldome This Sur-rejoynder is a second defence of the Plaintiffs Declaration opposite to the Defendants Rejoynder Demurrer cometh of the Latine word Demorari to abide and therefore he who demurreth in Law is said he that abideth in Law moratur or demoratur in Lege when so ever the Counsell of the party is of opinion that the Declaration or Plea of the adverse party is insufficient in Law then he demurreth or abideth in Law and referreth the same to the Judgment of the Court. Now there is no Demurrer in Law but when it is joyned and therefore when a Demurrer is offered by the one party as is aforesaid the adverse party joyneth with him and thereupon the Demurrer is said to be joyned and then the case is by Councell of both sides argued When the Declaration Answer Replication c. are defective in respect of some circumstance of time or place c. it may be remedied by consent of the Court or parties or by a motion to the Steward Non sum informatus is a formall answer of course made by an Attorney whereby he is deemed to leave his Clyent undefended and Judgment passeth for the adverse party It is a failing to put in answer to the Declaration of the Plaintiff in any Action by the day assigned which if a man do Judgment shall passe against him because he saith nothing to the contrary To an Action of Debt upon Specialty Not his Deed To an Action of Debt for mony lent c. He owes nothing by the Country To a Bond for performance of Covenants upon an Indenture or Arbitrament Not his Deed or not guilty To an Action of case upon an Assumpsit He did not assume To an Action of Trespasse Not guilty To an Action of Assault and Battery and Slander Not guilty To a Contract without Deed the Plea is Payment or an Obligation made for the debt c. To an Obligation the Plea is Payment c. but to plead payment to an Obligation without Acquittance is no Plea For an Obligation or other matter in writing may not be discharged by any agreement by word but by writing unumquodque dissolvitur eo modo quo colligatur But to plea d payment to an Obligation with Condition though no Acquittance by writing it is good for the Condition is in nature of a Defeasance to the Obligation To an Action of debt He owes nothing by the Country or by the Law or Paid If the Action be brought against an Executor or Administrator the ordinary Plea is that he never was Executor or hath fully Administred c. If the Suit be upon a Deed or Contract without Deed That he was within age when he made the Deed or Contract If it be against a woman That she was Covert that is to say had a Husband when she made the Deed or Contract If upon an Arbitrament That there was no Arbitrament legally made or That he hath performed the Award If upon an Action of Trespasse Damage feasant That the Beasts came in by the default of the inclosure of the Plaintiff or That he hath little of Common there c If upon an Action brought for Rent That there is no rent in arrear c. To an Action of Detinue That he doth not detain the thing sued for A release or gift to him by the Plaintiff or That he did tender the thing sued for before Action brought That the De-fendant did deliver it to him as Pledge for ten shillings which he hath not paid c. To an Action of the case for Slander Not guilty or Justifie the words Cafe upon a Warranty That he did not warrant Upon a Bond or Bill plead Conditions performed by Threats Duresse Imprisonment c. Upon a Demise Not demised To Trespass Not guilty an Arbitrament Tender of amends before the Action brought c. If diverse men do a Trespasse and one makes a good accord this will discharge and be a Bar to all the rest Co. 9. 79. If Freehold be pleaded the Court in that case can proceed no further There are divers Pleas to Actions of Trespass some of one nature and some of another as justification c. If the Defendant have matter of Justification or excuse to plead he must be sure to plead it specially for if he plead the generall Issue viz. Not guilty it will be found against him But now by the late Act made the 23 of October 1650. The Defendant may plead the generall Issue of Not guilty or such like generall Plea and give the speciall matter in Evidence Where the Defendant is not constrained to plead a speciall Plea he may plead the generall Issue proper for the Action brought and give the speciall matter in Evidence For every Plea must be so framed that it may give a full answer to the matter set forth in the Declaration to wit all such as are materially to be answered unto If one be sued upon an Obligation he cannot be compelled to plead before he have Oyer of the Condition of the Obligation If an Action of Debt be brought for Rent upon an Indenture of Demise for years the Defendant may plead payment without shewing the Deeds for the Lease shall be intended to be in being at the time of the Action brought Trin. 24. Car. B. R. If an Obligation of an hundred pounds be made with Condition for payment of fifty pounds at a day and at the
day the Obligor tenders the mony and the Obligee refuseth the same yet upon an Action of debt upon the Obligation if the Defendant plead the tender and resusall he must also plead that he is yet ready to pay the mony and tender the same in Court but if the Plaintiff will not then recieve it but take issue upon the tender and the same be found against him he hath lost the mony for ever Every Plea must be offered to be proved true by saying in the Plea And this he is ready to verifie and this is termed an Averment If tender of Issue come on the Defendants part the form is And of this he putteth himself upon the Country If on the part of the Plaintiff it is And this he prayeth may be inquired of by the Country If Issue be taken upon these Pleas and Jury thereupon warned to appear to try them the Jury appearing the parties may have their challenges Challenge of Jurors CHallenge is said to be where there is evident favour as Kindred c. the Juror of Alliance Servant Bears malice or hath some Action against the Challenger Juror a Gossip of the Plaintiff Juror master to the Plaintiff the Juror eat at the Plaintiffs cost or take mony for his charges If the Juror was chosen Arbitrator for one party but otherwise where he was chosen indifferent for them The Sheriff or Bayliff which make the Pannell is of the Plaintiffs kindred Those who have been attaint of false oath or were seen on the Pillory or against whom there was Judgment of life or member Those who pretend to have some right in the thing demanded The Juror outlawed if the Record be shown Juror attaint of Conspiracy The Sheriff being Plaintiff It was allowed for a principall challenge that the Defendant was indebted to the Juror If any one or more of the Jury be returned at the denomination of the party Plaintiff or Defendant the whole array shall be quashed If there be a Challenge for Cozinage he that taketh the Challenge must shew how the Juror is Cozin If one within the age of one and twenty years be returned it is a good cause of Challenge Having now brought the Jury to the Bar and that they prove all honest men being sworn let them stand to the Bar and hear their Evidence If a full Jury do not appear as many as make default may be amerced What witnesses are not sufficient to give in Evidence and what are THe word Evidence is of a different signification as signifying authenticall writings of Contract but here it is taken for proof of a matter in question and at issue by testimonie of witnesses before a Jury and according to the Evidence the Jury are to give their Verdict according to their oaths And to demonstrate who are insufficient and may be excepted against are such as are infamous as are persons attainted of Felony or of a false Verdict or of Conspiracy or of Perjury or in a Praemunire or of Forgery upon the Statute of 5 El. c. 14. and not upon the Statute of 1 H. 5. 3. and such as have had Judgment to lose their ears or stand on the Pillory or have been stigmatized or branded and infidells men not of sound memory or not of discretion or such as are interessed in the cause and may have benefit by the thing in question these are not competent witnesses and a wife cannot be witnesse for or against her Husband But all other persons though they be never so near in consanguinity Tenants Servants Masters Counsellors or Attorneys are allowed for competent witnesses Co. Lit. fo 6. Plow 8. 12. And these being required must come in to give Evidence or they forfeit to the party damnified so much as the Court shall award and must give him costs and damages Statute of 5 Eliz. cap. 9. The Poet in two verses doth declare what things are required in a witnesse Conditio sexus aetas discretio fama Et fortuna fides in testibus ista requires The manner of keeping the Court. THe Sheriff at the first Court which shall be after his Election and discharge of the old Sheriff must read his Patent and Writ of assistance and nominate his under Sheriff and County Clark and 1 2 Phi. Ma. cap. 12. four Deputies at the least of the Replevins for the ease of the County Then enter the stile of the Court after this manner The first County Court of I. B. Esq Sheriff of the County aforesaid held at the Castle of Y. on Munday the seventh day of July 1656. Then command the Bayliff to make Proclamation three times O yes c and say All manner of persons that have any thing to do at the County Court holden here this day before I. B. Esq Sheriff of the County of Y. come forth and give your attendance Command the Bayliff to make Proclamation again O yes c. and say All manner of persons keep silence and hear the Lord Protectors Writs of Exigent and Proclamation read A Coroner is to be there then present to pronounce Judgment of Outlawry against those that do not appear upon the Exigent and Proclamation at the fifth County Command the Bayliff the third time to make Proclamation O yes c and say Essoynes and profers before the Court three times for this day And then say If any man will be Essoyned or enter any Plaints let him come forth and he shall be heard Then enter your Plaint in this manner A. B. against C. D. of a Plea of debt Then call the Plaintiff thus A. B. appear or thou losest thy Plaint three times If he appear by an Attorney then enter his Warrant of Attorney viz. the two first letters of his name over the name of the Plaintiff and then file his Declaration Then call the Defendant C. D. appear and answer A B. in an Action of debt or as the case is or thou forfeits thy goods distrained and further Processe will be awarded against thee If he appear then enter his appearance and an Imparlance to put in his answer to the Plaintiffs Declaration the next Court. When the Defendant hath put in his answer If the Plaintiff joyne Issue they may proceed to tryall the next Court day except they proceed further by Replication Rejoynder c. If they be at Issue send out a Venire facias to summon the Jury Then enter on the head of the Pannell thus Jury betwixt A. B. Plaintiff and C. D. Defendant in a Plea of debt When they are brought to the Bar command the Bayliff to make Proclamation c. and say You good men that be impannelled to try the Issue between A. B. Plaintiff and C. D. Defendant answer to your names every man upon the first call upon pain and perill that shall fall thereon If twelve appear then swear them one by one in this manner You shall well
as S. V. hath appeared by his Attorney in this Court to answer W. N. of an Action of debt These are therefore to will and require you immediatly upon the sight hereof to deliver or cause to be delivered unto the said S. V. Two kine of the goods of him the said S. V. which you have distrained and do keep by vertue of my Warrant from this Court directed at the Suit of the said W. N. Fail you not hereof as you will answer the contrary Given under the Seal of my Office c. A Precept upon a Proclamation I. B. Esq Sheriff c. to the Bayliff of the Hundred of B. and to his Deputies greeting By vertue of a Proclamation upon Exigent to me directed I command you and every of you that you or some of you make two severall Proclamations The one to be made at the generall quarter Sessions of the Peace to be holden for the North-riding of the County of Y. And the other to be made at the Parish Church door after divine service where the severall persons under-written live and that they and every one of them yeeld their bodies to me the Sheriff of the said County where the Exigent lyeth to answer the person at whose Suit the Exigent is against them And hereof fail not at your perill Given under the Seal of my Office the two and twentieth day of August in the year of our Lord 1658. At the Election of the Coroner he is to be sworn in Court by the County Clark for the due Execution of his Office In this manner You shall swear that you well and truly shall serve his Highnesse the Lord Protector and the Common-wealth in the Office of a Coroner and as one of his Highnesse Coroners of the County of Y. and therein you shall truly diligently do and accomplish all and every thing and things appertaining to your Office after the best of your cunning wit and power both for the profit and good of the Inhabitants within the said County taking such Fees as you ought to take by the Laws and Statutes of this Common-wealth and not otherwise so help you God The Oath of an Attorney in this Court YOu shall do no falshood nor consent to any to be done in the Court and if you know of any to be done you shall give knowledge thereof to the Steward or county Clerk that the same may be reformed you shall delay no man for lucre or malice you shall increase no fees but shall be content with the old fees accustomed you shall suffer no forreign or illegal suits to hurt any man nor plead or cause to be pleaded any forreign plea but such as shall stand with the order of the law and your conscience you shall seal all such processe as you shall sue out of this Court with the seal thereof you shall not procure to be sued any false suit nor give aid nor consent to the same And lastly you shall use your selfe in the office of an Attorney within this Court according to your learning and discretion So help you God A Warrant of Attorney To S. D. one of the Attorneys of the County Court for the County of Y. c. I A. B. do hereby desire you and do give you full power license and authority to appear for me and for c. in your said Court on Monday c. in an action of debt for c. at the suit of E. D. upon an obligation conditioned for the payment of c. in which said obligation I stand bound as principal And this shall be your sufficient warrant in that behalfe In witnesse c. Bond for appearance It hath been formerly used to take a bond of the defendant for his appearance in this Court the form of the condition is thus THe condition c. That if the above bounden E T. do appear at the next County Court to be holden at the Castle of Y. on monday the first day of Ianuary next to answer H. B. in a plea of debt and do also stand to such order as the Court in that behalfe shall set down and adjudge according to law That then this present obligation to be void c. A sale of Goods to the Plaintiff levied upon a Fieri facias by the Sheriffs Bailiffe KNow all men by these presents That I G. B. of Skipton in Craven Bailiffe of the Liberty or Weapentake of Slaincliffe in the County of Y. By vertue of a precept of Fieri facias from the Sheriff to me directed have levied of the goods and chattels of c. the sum of c. paâ—t of a debt due to c. levied by vertue of the precept to his use In full satisfaction of which said sum of c I do by vertue of the precept or warrant to me directed as aforesaid assigne sell and set over unto the said c. all the goods and chattels in the apprisement hereto annexed nominated at the rate of c. To have c. the said goods and chattels to him his heirs executors and administrators as his or their own proper goods and chattels as fully and absolutely as I the said G. B. might could or ought to do by force and vertue of the said precept and apprisement or otherwise howsoever In witnesse whereof I have hereunto set my hand and seal the sixteenth day of August in the yeare of our Lord 1658. A Deputation for a Bailiff of an hundred I. B. Esquire Sheriffe of the County of Y. to all Christian people to whom these presents doth or may concern greeting Know ye that I the said Sheriff have deputed constituted and appointed R. D. of A. in c. my lawfull Bailiff and Deputy within the Hundred of B. in the North-riding in the County of Y. aforesaid to have and execute the said Office of Bailiff within the said Hundred or elswhere within the said County of Y. as occasion shal require it during my pleasure onely and no longer and to receive and take to my use all Fees as well for Distresse Attachment and Perquisites of Courts and other profits due and accustomed whatsoever to the said Bayliwick belonging or in any wise appertaining And whatsoever my said Bayliff shall lawfully execute and do in his said Office I do hereby warrant ratifie and confirme as my own act and deed In witnesse whereof I have hereunto set the Seal of my Office the seventeenth day of August 1658. The Fees The Fees to the County Clark  l. s d. FOr every Distringas 00-00-08 Every speciall Distringas 00-01-08 Duces tecum 00-00 08 A speciall Duces tecum 00-01-08 The Writ of Justicies 00-02-06 The Precept upon the Writ of Justicies 00-02-04 A speciall Precept upon the Writ of Justic 00-04-04 A Replevin 00-02-04 A speciall Replevin 00-05-04 The Bond upon the Replevin 00-01-00 Subpoena for Witnesses 00-00-08 Venire facias 00-02-00 Habeas corpora 00-02-00 Fieri facias 00-02-00 Capias in Withernam 00-05-04
Scire facias 00-02-00 Tolt 00-01-02 Precept upon an accedas ad curiam 00-02-04 Supersedeas 00-02-04 Procedendo 00-02-00 Warrant of Attorney upon every Distringas 00-00-02 Warrant of Attorney upon a Iusticies 00-00-04 Entring Essoynes for every name 00-00-04 Entring Imparlance 00-01-00 Copying the Declaration 00-01-00 Allowing the answer 00-01-00 Copying the answer 00-01-00 Allowing the Replication 00-01-00 And for copying the Replication and allowing the Rejoynder c. and so of the rest 00-02-00 Entring a Rule 00-00-04 Entring a Default by Nihil dicit 00-00-04 Entring a Non-suit 00-00-04 Dividing a Plaint for every name 00-00-04 Entring Judgment 00-02-00 Transcript upon a Plaint 00-01-08 Transcript upon a Writ of Iusticies 00-03-04 Allowing a Recordare 00-04-00 Allowing a Pone 00-04-10 Allowing a Writ of False Iudgment 00-06-08 Fees to the Attorney FOr drawing every Declaration 00-01-00 Drawing every answer 00-01-00 Drawing the Replication 00-01-00 Drawing Rejoynder 00-01-00 Drawing Sur-rejoynder 00-01-00 For every Court day wherein he proceeds in the Action allowed as his Fee 00-02-00 Fees to the Bayliff for executing of Processe FOr executing a Distringas of the Plaintiff 00-00-04 and of the Defendant 00 00-08 A Duces tecum of the Plaintiff 00 00-04 And of the Defendant 00-00-08 A Iusticies of the Plaintiff 00-01-00 and of the Defendant 00-02-00 A Replevin of the Plaintiff 00-02-00 A Venire facias 00-02-00 If tried for the Habeas corpora 00-02-00 A Fieri facias 00-02-00 A Scire facias 00-02-00 The Order of the Judges of Assize at York the 24. day of July 1654. concerning Essoins illegally returned into this Court. WHereas of late Judgements have been surreptitiously obtained in this Court by reason of Essoins unduly brought into the Court by Bailiffs or their Deputies and others after attachment of goods for appearance which pretended Essoins being afterwards disavowed by the defendant have occasioned sundry complaints and suits when the defendants goods were taken in execution for preventing whereof it is ordered upon advice and consultation had with the Judges of Assize at Y this day that henceforth no common Essoin shal be entred and allowed by the Court to save a default unlesse it be warranted in writing under the proper hand-writing or under the hand seal or mark of the defendant thereby specially authorizing the party being the Essoiner to cast such Essoin for him and in his name for the truth of which subscription or sealing the same Essoin is to be sworn in open Court and no Essoin is to be admitted or received from henceforth being not affirmed and sworn unto and so entred upon the back of the warrant of attachment which is to remain upon the file amongst the Rolls or proceedings of the Courr and if any other person not being a Bailiff shall be the Essoiner he is to bring the like warrant from the Defendant in writing as is aforesaid and be sworn for the truth thereof which is to remain in Court as aforesaid And no jugdement shall be given where there is no other appearance but an essoin Unlesse the Essoin shall appear to be warranted as aforesaid To swear to warrant Essoyns in this Court is contrary to the Statute of Marlbridge cap. 19. which saith De essoniis autem provisum est quod in Com. c. nullus habeat necesse jurare pro Essonio suo warrantizand Of the nature and Return of those Writs that do remove actions out of this Court into superiour Courts WRits removing suits out of this Court may be without shewing cause in the writ if the remove be by the Plaintiff but not without shewing good cause if it be by the Defendant As that the suit is for Charters of land or for inheritance or for freehold of Land or any titles of Land or actions touching life or actions to cause one to render an accompt or trespass vi armis all which are not within the cognizance of the Court. Or that he before whom the action depends is a favourer of him that is on the other side or that the Defendant avoweth for damage feasant and the Plaintiff doth justifie for common of pasture which is a plea touching Freehold and thrrefore the prosecution in this Court ceaseth First of a Recordare facias loquelam A Recordare is a writ issuing out of the Chancery directed to the Sheriff commanding him to send a plaint that is before him in his County Court without writ of Iusticies into the Court of Vpper Bench or Common Pleas to the end that the cause may be there determined And the Shiriff is hereupon to summon the other party to be in that Court into which the Plaint is to be sent at a day certain And of all this he is to make a certificate under his own Seal and the Seals of four Suitors of the same Court By vertue of this Writ to me directed at my County of Y. held at the Castle of Y. within written such a day and year to be Recorded I caused the Plea of which within is made mention which appears in a Schedule to this Writ annexed and that Record I have before the Iustices within written at the day and place within contained under my Seal and the Seals of W. H. E. R. c. four good and legall Knights of the same County of them who at the Record present were and to the parties within written that day I have prefixed that then they be there in that Plea as just it may be to prosecute as within to me is commanded The residue of the Execution of this Writ appears in a certain Schedule to this Writ annexed At my County Court held at the Castle of Y. in the County aforesaid such day and year before I. R. M. L. I. S. and S. D. four Suitors of the said Court amongst other matters is contained R. S. complaineth against B. W. of a Plea of debt or as the case requires I. B. Esq Sheriff pledg of prosec I. S. I. D. In testimony of c. By vertue of this Writ to be recorded I have caused the Plea which is in my County without Writ of Oliver Lord Protector c. betwixt A. B. and C. D. concerning the Beasts of him the said A. B. taken and unjustly detained as it is said and that Record I have before the Justices within written at the day and place within contained under my seal and the seals of E. B. S. D. R. B and I. L. four legall Knights of my County of those who at the Record present were as it appeareth in a certain Schedule to this Writ annexed according to the Exigency of this Writ At my County held c as before By vertue of this Writ in form within written I came to the Court within written and in that full Court to be recorded caused the plea within written and that Record as it appeareth in a Schedule to this Writ annexed I have before the Justices within written at
aforesaid in their Demesne as ofsee Between which said Closes there is a certain hedge separating each from other the aforesaid Closes which said hedge the aforesaid D. and all they whose estate the same D. hath in the Close aforesaid from time out of minde were accustomed to make repaire and sustain and say that that hedge for want of reparation and sustaining of the same was at the time of the Trespasse aforesaid supposed to be made broken down and laid prostrate to the ground and that the Cattel of the said A. and B. in their Close aforesaid put to depasture into the said Close of the aforesaid D. by the breach and decay of the said hedge did enter against the will of them the said A. and B. and the grasse aforesaid did eat up tread down and consume the same A. and B. their Cattle aforesaid freshly pursuing into the said Close of the said D. by the breach and decay aforesaid did enter to drive backe their Cattle into the said Close of them the said A. and B. and into that Close speedily drove them as it was lawfull for them to do which is the same trespasse and breach of close and feeding treading downe and consuming the grasse aforesaid whereof the said D. above against them complaineth And this they are ready to averre c. whereupon c. The Defendant upon a Replevin avoweth the taking of the Cattle doing Damage Feasant ANd the said A. by c. cometh and defendeth the sorce and injury when c. and doth well avow the taking of the said Cowes in the said place in which c. and justly c. because he saith that he is seized and at the time of the said taking was seized in one Messuage and 12 acres of Meadow with the Appurtenances in the said Towne of S. whereof the place in which c. the said Cowes were taken as parcell in his Demesne as of Fee And for that he at the time of the said taking found the said Cows doing damage in the said place in which c. the said A. those Cowes in his ground and free-hold so doing damage took as to him it was lawfull And this he is ready to prove whereupon he prayeth judgement and the returne of the said Cattle c. Misnomer in the Writ of Justicies ANd hereupon comes Alvered Pease by W O. his Attorney and saith that he being by vertue of the said Writ of Iusticies summoned by the name of Abraham Pease neither is nor can be understood the same person against whom the said E. W. hath brought his Writ by the name of Abraham Pease For he saith that he is named called Alvered Pease and by the same name and sirname from the time of his nativity always known and called without that that he is named or called Abraham Pease or by the same name and sir-name was ever known or called as by the said Writ is supposed And this the said Alvered is ready to aver and prove whereupon he demandeth Judgement of the said Writ and that the same may be quashed c. Non cepit to a Replevin ANd the said B. by S. H. his Attorney cometh and defendeth the force and wrong when c. And saith that he did not take the Cattle aforesaid as the said A. above against him complaineth And of this he putteth himselfe upon the Countrey And the said A. likewise c. Property ANd the said B. by S. H. his Attorney cometh c. and saith that the property of the Cattle aforesaid at the supposed time of their taking was in the said B. and not in the said A. And this he is ready to prove whereupon he prayeth Judgement c. Demurrer to a Declaration ANd the said B. by C. D. his Attorney comes and desends the force and injury when c. And saith that the Declaration of the said P. and the matter therein contained are not sufficient in Law for the said P. to maintain his action aforesaid against him the said B. to be had And that he to that Declaration in manner and forme aforesaid made hath no need nor by the Law of the Land is bound to answer And for causes of Demurrer in Law in this behalse the said B. according to the forme of the Statute in this behalf provided doth shew to the Court these causes following That is to say that the said Declaration doth contain double and insufficient matter and wants forme and this he is ready to aver whence for default of a sufficient Declaration in this behalse the same B. prayeth Judgement and that the said P. may be barred of having his action against him c. Joyning in Demurrer ANd the said P. saith for that he above declaring hath in his said Declaration alleadged sufficient matter in Law to maintain his said Action to be had against the said B. which he is ready to aver which matter the said B. doth not gainsay nor thereunto at all answer but wholly refuseth to admit that averment prayes Judgement and his debt aforesaid together with damages by reason of the detaining of the said debt to him to be adjudged c. If it be in Trespasse then thus PRayes Judgement and his damages by reason of the sayd Trespasse or Trespasse and Assault or Trespass Assault and Imprisonment as the case is to him to be adjudged c. If in an Action upon the Case PRayes Judgement and his damages by the occasion before specified to him to be adjudged c. OF THE JUDICIAL AND MINISTERIAL POWER OF SHERIFS TO treat of the Originall or first Institution of Sheriffs in this Common-wealth is not here necessary being already done in the tract of the County Court or first part of this our subject matter Therefore we will initiate with the office of Sheriff in which office he hath triplicem custodiam a three-fold custody viz. 1 Custos vitae Reipublicae The Conservator of the life or peace of the Common-wealth 2 Custos vitae Iustitiae The preserver of the life of Justice for no Suit doth commence and no Processe is executed but by him 3 Custos vitae legis The Guardian or Tutor of the life of the Law for after tedious and long spun suits he is to make due execution which is the very life and spirit of the Law Now as he is Custos vitae Reipub. or Principalis conservator pacis within the County he hath a Judicial authority in the other two a Ministeral 1. And first to discover his Judiciall power And as he is a preserver of the peace he may ex officio upon request command and cause another to finde sureties of the Peace and may take the same sureties by Recognizance for all Obligations that he takes to that end are as Recognizances in Law And if he see one man assault another or if an assault be made upon himselfe he may compel them to finde sureties of the
Action brought For it was alleaged although a reprisall by fresh suit if it had been before the action brought would peradventure have excused him yet being after the Action brought so as the Plaintif at the time of the Action brought had good cause to have the Action the Reprisall after shall not excuse him and compared it to waste brought for Reparations which is amended pendant the Writ it shall not excuse him So here And in proof thereof were cited Coo. 3. fol. 52. Ridgeleyes case 23 E. 4. 8. 13 Edw. 3. tit Barr. 253. But against this it was argued That this reprisall being alleaged to be by fresh suite and before the plea pleaded is good for the time and he shall take advantage thereof to excuse the Escape For it is upon the matter no escape when shee was re-taken by fresh suit for that is a continuall pursuit and the Law shall adjuge her in prison always And it is not like the case of Waste For there nothing was done after the Waste committed before the Action and the Reparation hath not any relation nor is the continuance of any former Act but this Reprisall hath relation and makes it no escape ab initio As a Distresse taken for Rent and rescued and driven into another Mannor which is pursued and re-taken the party shall make his Avowry of the taking in the first place So here And it would otherwise be a great mischiese if an Escape should be against the wills of Sheriffs or keepers of Prisons by breach of prison or rescuing themselves before they be brought to prison or in their going thither and the prisoners be reprised within two or three dayes That an Action should be brought in the Interim against the Gaoler and that this Reprisall when he hath the prisoner before the plea should not be an excuse especially to the Marshall who hath multitude of prisoners and every day is to bring them unto the Hall by Habeas Corpus or Rules of Court If peradventure a Prisoner escapes and an Action be brought against the Marshall the same day before he can have any time to retake him If he should not be excused by the re-taking hee would be charged with a multitude of suits and could not have any remedy to excuse him And therefore it was compared to the pleading of a Fine levyed before the VVrit of Formedon and Proclamations incurred pendant the VVrit before the plea pleaded he well may take advantage thereof by pleading it although when the Writ was brought it was not compleat nor could be pleaded Vide 6 H. 7. 12. Secondly it was moved admitting this to be no plea yet the Action lyes not here because the Escape is of a Feme Covert where her Baron is subject to the Execution So the Plaintiffe hath not lost his debt for by intendment she might not have payd it if shee had layne in prison For shee had nothing but what was her Husbands and the Execution remaines yet against him Therefore Action of Debt lyes not because he is not totally deprived of his Debt but an Action upon the Case in respect of the damage And therefore it was said If one have Execution of a Statute of the Lands Goods and Body c. and the prisoner escapes Yet because the Lands remaine in Execution debt lyes not for the Escape but an Action upon the Case For at the Common Law an Action of Debt was not maintainable for an Escape but it is given by the Statute of 1 Richard 2. where the Debtor escapes But here the sole and principall Debtor did not escape for the Baron is the Principall and remained subject to the Execution vide 33 H. 6. 47. N. Br. 93. Regist fo 98. 4 H. 6. 6. Wherefore c. But the Court held that it was not any plea because the Action is brought and implyes a voluntary permission ire ad largum which is neither denyed or traversed And if the Sheriffe voluntarily lets a prisoner at large he cannot re-take him And so this Reprisall as is alleaged being after the Action brought is to no purpose nor is any plea. And for the Action of Debt they held that it well enough lyes or an Action upon the Case at his pleasure Because the Feme was onely committed to prison and not the Baron And shee is the sole Debtor who is imprisoned wherefore it was adjudged for the Plaintiff But note in as much as Escapes are so penall to Sheriffes Bayliffs of Liberties and Gaolers the reverend Judges of the Law have alwayes made a favourable construction as much as the Law will permit in favour of the Sheriffes Bayliffs of Liberties and Gaolers who are Officers and Ministers of Justice Co. 3. 44. Of Bayle what it is And where the Sheriffe may take Bayle and where not BAILE or Ballium is a safe keeping or protection and thereupon we say when a man upon surety is delivered out of prison traditur in ballium hee is delivered into bayle viz. Into their safe keeping or protection from prison before that he hath satisfied the Law it hath its originall or derivation from the French word Bailler and that also cometh from the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they both signifie to deliver into hand For he that is bayled is taken out of a Prison and delivered into the hands of his Friends who are his Sureties for his appearance at a certaine day to answer and be justified by the Law Sheriffs Under-sheriffs or other persons making any warrant for the summons arresting or attaching any person to appeare in any Court not having the originall Processe or Writ to warrant it upon examination and proofe thereof before the Judges of Assize or Judges of the Court c. such offender and their procurers shall be committed to the Goale there to remaine without baile untill they have paid amongst them 10 l. to the party grieved and his costs and damages as also 20 l. to the Protector 43 Eliz. c. 6. Such persons as are in Execution upon any Statute or Recognisance or upon judgement given in the Kings Court at the suit of any person they shall not be bailed until they have agreed with the Plaintiff 1 R. 2. c. 12. 23 H. 6. c. 10. F. N. B. 9. 121. a. Persons condemned in any of the Kings Courts and by vertue thereof committed to prison they shall not be bailed untill they have agreed with the Plaintiff 1 R. 2. c. 12. 2 H. 5. cap. 2. F. N. B. 121. a. If the Sheriffe doe let to baile any persons prohibited by the Stat. of Westm 1. cap. 15. to be bailed he shall be punished by the Justices of Goal-delivery according to the forme of the same Statute or the Justices may fine them as for an escape punishable at the Common Law 25 E. 3. 39. The Sheriff might at the Common Law have bailed a suspect of felony
because he is conservator of the peace but now it seems the power is transferred to the Justices of the Peace onely See the Stat. 1 R. 3. c. 3. 3 H. 7. 3. If a prisoner bailable tender sufficient sureties to the Sheriff and he refuseth he shall be amerced to the Protector and Informer 40 l. and shall lose treble damages to the party grieved If a person be arrested by vertue of any Writ or precept in any Action personall upon tender of reasonable sureties to appear at the day and place as the said Writs Bills or Preceps shall require he shall be bailed 23 H. 6. cap. 10. Fitz. 251. b. And the person is not obliged to go to the Sherif if he offer sufficient baile to the Baylif Persons apprehended for any manner of Treason or Felony shall not be bailed Westm 1. Cap. It is the constant course of the Upper Bench that the Bail is never chargeable till there is default assigned in the principall upon the return of a Capias ad satisfac And if the principall render his body though the Plaintiff refuse to take it yet that is a discharge of the baile Winch Rep. fo 62. It is not repugnant to our present subject to transcribe the new Rules concerning speciall Bayle viz. 1. That if the Defendant appeare upon the Summons Attachment or Distresse or by Supersedeas quia improvide or doth truly render himselfe upon the Exigent no baile is requirable 2 That in all causes of removeall be it by Habeas Corpus Priviledges or Certiorari speciall bail ought to be given 3 That in causes where the Defendant comes in by Cepi corpus be it Debt Detinue Trespasse for goods Action upon the Case except slander if the debt or damages amount to 20 l. special baile is to be given except it be against an Heire Executor or Administrator 4 That in Covenant because the damages are uncertain till Declaration bail at discretion 5 That in Battery Conspiracy false imprisonment no speciall baile of course without special motion and order 6 That in slander no speciall baile except in slander of title wherein to be left to the discretion of the Judges 7 That in priviledge other then for sees and disbursments as an Attorney in this Court baile at discretion of the Court. In such case wherein a suite by a common person especiall baile is not requisite 8 That if baile be given upon reversall of an Outlawrie or removall by Habeas Corpus the Originall to be shewne upon tendring of the Declaration otherwise the baile not liable unlesse the party or his Attorney will voluntarily appeare or take a Declaration without shewing of it 9 That in case of a removall out of an inferiour Court or reversall the new Originall to agree in the nature of the Action the summe in demand and the County otherwise the baile not lyable but if the partie will voluntarily appeare to such varying originall to be good as to the partie but if upon a cause removed by Habeas Corpus out of the Courts of Canterbury Southampton Hull Litchfield or Poole which are Counties where the Judges of Nisi prius seldome come if the Action be transitory it must be laid in the County of Kent Southampton Yorke Stafford or Dorcet where the Towne and County lieth and the Recognizance to be taken accordingly 10 That the Principall rendring himselfe at any time after bayle put in and before or upon the day of appearnce of the scire fac returned scire feci or of the second scire facias returned Nihil or in case there shall be an Action of Debt brought upon the Recognizance against the Bayle then if the Principall shall render himselfe upon or before the processe returned or served no further proceeding to be against the Bayle Of the Election of Parliament men how and when they are to be elected c. THe manner of electing Knights of the Shire is as followeth viz. At the next County Court after the delivery of the Writ Proclamation is to be made in full County of the day and place of the Parliament and that all there present as well Suitors summoned as others shall attend to the election of the Knights and then in full County a free and indifferent election shall be made notwithstanding any request or mandate to the contrary And note that no Election can be made by any Knight of the Shire but between the hours of 8 and 11. in the fore-noon but if the election be begun within the time and cannot be determined within those hours the election may be made after And if any election or voyces be given before the Precept be read and published are void and not effectual Likewise he ought immediately after the receipt of the Writ of his Highness for the summoning of the Parliament to make his Precepts under the seal of his Office to every Major and Bailiff of Cities and Boroughs within his County commanding them thereby to choose Citizens and Burgesses to come to the Parliament And those Majors and Bayliffs must make a legal return of that Precept to the Sheriff of their election and their names that are elected The Sheriff setting his hand and seal of Office to one part of the Indentures delivering it to the Major Citizens or Burgesses to be kept the Major Citizens or Burgesses setting their hands and seals to the other part delivering it as their Deeds to the Sheriff to be certified and returned by him with the writ of summons to the Clerk of the Crown whose see is 4 s for every Indenture 23 H. 6. cap 15. Crompton 208. P. Parl. 5. Note that after the Precept of the Sheriff directed to the City or Borough for making of election there ought Secundum legem consuetudinem Parliamenti to be given a convenient time for the day of election and sufficient warning given to the Citizens or Burgesses that have voices that they may be present otherwise the election is not good At the election if the party elected or the Freeholders demand the poll the Sheriff cannot deny the scrutiny for he cannot discern who be Freeholders by the view and though the party would wave the poll yet the Sheriff must proceed in the scrutiny And by the Stat. of 8 H. 6. c. 7. 10 H. 6. c. 2. The election of Knights of the Shire shall be made by the more voices of the people dwelling in the Counties having each of them lands or tenements of the yearly value of 40 s. besides reprises and the Sheriff hath power to examine upon oath the choosers how much they may expend by the year After such election the names of the parties so elected be they present or absent shall be written in an Indenture under the seals of all those that did choose them which Indenture so sealed and taken to the said writ shall be the Sheriffs return thereof touching the Knights of the Shires
HEe cannot enquire of the Statute of Labourers or indict one feloniously committing a Rape yet such Indictments must be delivered to the Justices of the Peace according to the Statute of 1 Ed. 4. Bract. praesent 16. Fitz. Tourne 3. 4 Edward 4. 8 Edw. 4. 5. He cannot commit any man to prison for his contempt neither can he take recognizance or binde a man to good behaviour as formerly he might and as the Sheriffe in his Tourne may do Yet Co. Instit 4. fol. 263. holdeth that he may take a Recognizance for the peace He cannot hold plea of any thing appertaining to the Crown nor touching Free-hold or Lands nor debt trespasse or otherwise This Court cannot take Indictment of any Felons for the death of any man or in any other case wherein it hath no cognizance If it doe it is Coram non judice and voyd neither can it take a presentment of an offence done to a Parish or a particular man Such things as are Trespasses by the Statute or offences against any Statute the Sheriffs Office doth not extend to it here except the Statute doth give in it an expresse authority to the Tourne or Leet for Nulla est generalis regula sed admittit exceptionem Nothing but Nusances and Grievances Offences or Trespasses as are popular and common to many persons And therefore Trespasses for breaking of Closes nor Assaults made to a sole and particular person is here inquirable except there be blood-shed It was the occasion of a very learned Contest or Argument Pasch 24 Car. B. R. whether a Court Leet may enquire of private Assaults and Batteries if there be no blood-shed in the case Bacon Justice and Walker an Apprentice of the LAW in the Inner TEMPLE held that a Court Leet might enquire of them But Justice Roll held the contrary because they are actionable at the COMMON LAW onely by the party injured and are not publique offences against the publique Upon all Presentments and Indictments taken before the Sheriffe in his Tourn he hath not power to attach arrest or put in prison nor to levy nor take any Fines or Amerciaments of any person so indicted or presented betore them by reason or colour of any Indictment or presentment taken before them in their Tournes but the Sheriffe shall bring and deliver all such Indictments and Presentments to the Justices of Peace at the Sessions that shall be holden for the said County if not a forfeiture for every one not delivered 40 l. What things are considerable in holding Tourns or Leets HAving demonstrated what things are to be enquired of here and what are not Now three things are considerable in the holding of Tourns or Leets viz. 1. Time 2. Place 3. Persons 1. As to the time it must be kept twice a yeare according to ALFRED quotannis celeberimus bis conventus agetur one moneth after EASTER and one moneth after MICHAELMAS At the Tourn after EASTER no Actions popular are to be enquired after c. but onely to take their suite who are Suitors and to take the view c. And at the Tourne after MICHAEELMAS then to enquire of such as are enquirable 2. Now to the place where it is to be holden and that must be within the Precinct and Libertie in loco debito consueto and if it be done otherwise what ever is acted in it is voyd coram non judice 3. Thirdly what persons are to appeare in this Court they are all the Freeholders within the Precinct or Liberty are obliged to come by the service of their Fees and all other people above the age of 12 years and under 60. only Ecclesiasticall and religious men all Earles Barons Tenants in ancient demesne and all women are excepted because they are never sworn upon any Inquest Jury What. THere must be at the Court twelve at the least of the most discreet and sufficient Freeholders such as are of repute and estimation and have Freehold Lands within the same County of the value of twenty shillings at the least who ought to be impannelled and sworn by the Sheriff to enquire of and present all things there inquireable and presentable who ought to take all Indictments by their oathes and must deliver in their rolls and inquisitions indented and sealed between the Sheriff or Steward and the Jurors And if there be not twelve to be sworn the Sheriffe or Steward may cause strangers that come within the view to be of the Inquest How Amerciaments are forfeited and what shall be causes to amerce c AMerciament in Latine is called misericordia because it ought to be assessed mercisully and ought to be moderated by affeerement of his equals otherwise a Writ de moderata misericordia lieth or because the party offending putteth himselfe on the mercy of his Highnesse And the difference betwixt a Fine and an Amerciament is That a Fine is assessed by the Court but Amerciament by the Countrey Of Amerciament BUT to demonstrate the cause of Amerciament viz. The not appearing of a Leet is a good cause to amerce a Reâ—iant and the Lord who distrains for the amerciament needs not shew for what he distraineth before the tenant hath tendered something for amends although the tenant doth not know the cause 45 E. 3. 9. Avowry 80. vi 11 H. 4. 89. 12 H. 7. 15. If a man be amercied for a thing done in a Towne wherein he dwelleth he may be distrained for it in any place within the Hundred or Leet 11 H. 4. 88. A Suitor at a Leet may be amercied for not presentting things presentable being sworne with others and a generall Avowry but he may say that there was nothing to be presented 11 E. 3. 9. Avowry 155. 10 H. 6. 7. Coo. lib. Enteries Det. 149. Coo. part 8. Griesleys case A Resiant was amercied for not clensing of a Ditch and a paine levied upon him that he clensed it after and a distresse taken for not doing of it c. 29 E. 3 36. 41 E. 3. 26. Resiants and tenants may be amercied in the Leet for refusing to swear 38 E. 3. 18. Conusance 23. The Lord of a Leet shall not prescribe to amerce the petty Jury for their false verdict the same being sound by the grand Jury for it is no good custome but they may be amercied for concealing of any thing which is presentable there and this is by custom M. 9. H. 6. 42. Custome An amerciament in a Leet may be well levied by an action of debt 12 H. 2. Ley 43. 10 H. 6. 7. One was amermercied for brewing Ale and selling it contrary to the Assize within the Hundred and it was holden that although he was resiant within another Leet yet the amerciament is good where it is made so it is where one sels Bread and Ale in a Market which is in another Leet then where it was brewed
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
walls houses or pales be made and erected or thrown downe or any wayes or paths opened or stopped to the damage of the people or if any waters be stopped or diverted out of their right course or if the common Rivers or watering places for Beasts be corrupted and annoyed with Hemp Hay and such like or if any encroachment be upon the Kings high way or any carrion or unwholsome thing be cast into the same The party offending for every time so doing forfeiteth 20 s. 33 H. 8. c. 17. 23 Inquiry is to be made of the defect of Bridges or Causwayes decayed and broken downe and who ought to repaire them The penalty is according to the discretion of the Iury upon the view 24 Inquiry is also to be made if Common Pounds be good and close to retain such distresse as shall be brought to them untill they be delivered thence by order of Law and to present such as ought to keep them in such order if they be taken This is also referred to the Iuries discretion 25 And forasmuch as high wayes especially in winter are very troublesome to travell in it was enacted the 1. 2. Ph. M. c. 8. That the Constable and Church-wardens of every Parish within this Common wealth should yearly upon Tuesday or Wednesday in Easter week assemble a number of the Parishioners and elect two honest men of them to be Surveyors of the high ways for one yeare and that they shall have authority to direct the persons that shall be appointed for the mending and repairing of them according to their discretion faithfully executing their office Every Surveyor neglecting his office and making default forfeits 20 s. Every person for every plowland in tillage or pasture within the parish and every person there keeping a draught or plough shall send every day that the ways are in mending one Waine or Cart with all necessaries convenient to carry things and also two able men with the same The penalty for every draught making default is 20 s. Every other Housholder Cottager Labourer not being an hired servant by the year shall by themselves or one sufficient Labourer upon every of the said dayes work there The penalty for every one making default every day 8 d. 26 You shall enquire if any Heyes Fences Dikes or Hedges next adjoyning on every side to any high or common wayes be not from time to time ditched scoured repaired and kept and all trees and bushes growing in the high-wayes be cut down by the owners of the ground or soyle whereby the wayes are opened and the people may have a more easie passage Every person not so doing forfeiteth 20 s. 18 Eliz 9. 27 You shall further enquire if any ancient bounds or Land-marks be withdrawn and taken away such as distinguish or divide Hundreds Parishes Tythings Commons Common-meadows and Common fields to avoid confusion and consequently dissention 18 Eliz. 2. Fined according to the discretion of the Jury 28 You shall further enquire if any common breakers of hedges or sences by which their neighbours ground is made subject to the incursions of Cattel which are the grounds of many actions of Trespasse to the disturbance of the peace of the Comonwealth Such offenders are to be stocked and whipped 29 You shall also enquire of the breach of any common Pownd to take away distresse out of it though the distresse be without cause Or if any shall rescue or take away by force any cattell which is distrained for any rent amerciament or other cause before it be in custodia legis in the custody of the Law or impounded it is presentable Fineable according to the discretion of the Iury. Or a Writ de pareo fracto lyeth against him as Common Law F. N. B. 139. 30 You shall also enquire if any assaults be committed whereby blood-shed ensueth to the disturbance of the people of this Common wealth is here inquireaable 1 R. 3. fo 1. The fine for the offence is accoding to the discretion of the Iury but commonly it is 3 s. 4 d. 31 You shall further enquire if any Rescous were committed upon the Sheriffe or his Baylifs in disturbance of them from the taking and detaining any person arrested An action lyeth against the offender at the Common Law 32 You shall enquire if there be within the precincts of this Leet any Common Barretors such as are common incendiaries of strife and discord amongst their neighbors and are ever fishing in troubled waters they are of both fexes scoulds brawlers inventers and dispersers of calumnies and reports whereby discord and inquietude ariseth in the Countrey Such persons must give sureties for their good behaviour being disturbers of the peace 33 You shall enquire if any Alehouse-keeper c. have permitted any Inhabitant or Townsman except labourers and handicrafts men or persons invited by Travellers to continue tipling or drinking in any such house The paine or forfeiture of the Alehouse-keeper for every such offence to the use of the poore of the Parish 10 s. 34 You shall enquire if any buy or cause to be bought any victuall or other thing coming towards any Fair or market to be sold in the same or shall make any bargain contract or promise for the having or buying of the same before it shall be in the Market c. such shall be judged a Forestaller He that is convict thereof is for the first time to be imprisoned for 2 moneths and losse of the value of the thing sold The 2d time imprisoned by the space of halfe a year and shall loose the double value of the goods c. The 3d time during his Highnesses pleasure and judgement of the Pillory forfeiting all his goods and chattels See Stat. 5 E. 6 cap. 14. 35 You shall enquire if any regrate any corne butter cheese or other dead or quick victuals whatsoever that shall come to any Fair or Market to be sold and doth sell the same againe in any Faire or Market holden in the same place or within four miles thereof shall be judged a Regrator The judgement of a Forestaller 36 You shall enquire if any do ingrosse and get into their hands or promise taking unlesse it be by demise grant or lease of Land any Corne growing in the Fields or otherwise butter cheese or other dead Victuall to the intent to sell again shall be reputed an illegall Ingrosser The same judgement of a Forestaller and Regrator 37 You shall enquire if any Baker shall make and put to sale any bread which is not of good and sufficient weight and assize according to the rate and prices of come and graine in the Markets adjoyning or such as is not wholsome nourishment for Man And that he set his owne signet upon every loafe of bread that he vends to the end that if it want weight it may be known in whom the fault lyes For the
the Lord allows thereof Yet to the Lease for one yeare it was answered That he must have a speciall custome or else it is not good unlesse it be for a tryall of a Title which hath been allowed because it is for reducing a Rite and for the Lords benefit And to the second it was said that admitting it is a forfieture yet the Lords acceptance of the surrender not knowing of the forfeiture is no dispensation therewith and consequently that the Lords Lessee hath a good estate and right in him for which his entry is lawfull this was approved good by the Court and the first part over-ruled Crook Rep. fo 169. A COPYHOLDER made a Lease for one yeare Et sic de anno in annum during the life of the Copyholder excepting one day at the end of every year for the Copyholder to enter and this onely for to avoid a forfeiture but it was cleerly resolved Mic. 8. Jac. B. R. rot 602. that this is a forefeiture of his Copyhold estate for if a Lease be made de anno in annum this must of necessity be a Lease for twenty and two years and so is Potkins case in 14. H. 8. fo 14. As to the reservation of one day at the end of every year to make his lease but for one year and so to be warrantable by the custome it will nothing avail him though he had excepted a moneth at the end of every year it would have been to no purpose for by this invention he hath a purpose to cheat and deceive his Lord but he is deceived himself Bolstrod 1. part fo 215. Iutterels case Mic 8. Jac. B. R. rot 602. If a Copyholder make a Lease for years to comence at Michaelmas it is a forfeiture presently Hetleys rep fo 122. A Copyholder may hedge and inclose but not where it was never inclosed before and he may dig for marl without any danger of forfeiture but he ought to lay the said marl upon the same Copyhold land and not upon other Land Easter 19. Jac. Winch. rep fo 8. But if land be digged to make a banck and if more be digged then is necessary it is wast and if it be not cast down for the land might be made barren 41. E. 3. Wast 82. The heir before admittance may enter and take the profits and make a Lease according to the custome or bring an action of treaspase against him who disturbes him But if the Lord require his Fine or his services and the heir refuse to do them this may be a forfeiture of his Copyhold But until lawful seisin made by the Lord because it belongeth to him the heir may intermeddle with the possession though he be not admited by the Lord where it is an Estate of inhetance by the custome Pophams rep fo 39. It is a forfeiture of a Copyhold for the Copyholder to refuse to pay his Fine if it be a Fine certain but if he refuse to pay a Fine incertain after it is set quaere whether it be a forfeiture or not for that Fine may be unreasonable See before forfit Or if he refuse to appear at his Lords Court and to do his service there Prac. Regist tit fo forfit Trin. 24. Car. R. B. yet if the Copyholders dwell in a Town far distant from the Mannor a general warning within the Mannor is not sufficient but there ought to be to the person notice of the day when the Court shall be holden c. For his not coming in such case cannot be called a voluntary refusal so if a man be of that debility in body as he cannot travel without danger so if he have a great office c. these are good and strenuous causes of excuse It was likewise holden that if a Copyholder makes default at the Court and be there amerced although that the amerciament be not estreated or levyed yet it is a dispensation of the forfeiture But note that a general warning within the parish is sufficient for if the tenant himself be not resident upon his Copy-hold but elsewhere his Farmer may send notice to him of the Court Leonards rep first part fo 133. And note further by Hetly in his rep fo 7. Pasc 3 Car. C. B. that if a Copyholder be summoned to the Court by Common Proclamation or expresse notice and he does not appear it is no forfeiture because it is but a failer of service and no denyal and for the neglect he may be punished and fined If a man seised of Copyhold land in the right of his wife surrendreth the same to the use of another and the Husband dyeth it is no discontinuance to the Wife but that the Wife may enter and shall not be put to a Cui in vita nor the heir to sue a Cui in vita Coo. 4. 23. And if a Copyholder for Life surrendreth to the use of another in Fee it is no forfeiture for it passeth by surrender to the Lord and not by Livery and Copyhold Estates shall not have such qualities as Estates at Common Law have without special custome Ibidem Of the Office and Dutie of the Steward STeward in the Latine is called Seneschallas and is derived from the French word Sein a house or place and Schale an Officer or Governour some say that Sen is an ancient word for Justice so as Seneschal should signifie officiarius justiciae As to the word Steward it seemeth to be compounded of Stew and Ward and is a word of many applications yet alwaies signifieth an Officer of chief account within the place of his sway In this place it signifieth an officer of Justice viz. a keeper of Courts c. therefore for the prevention of many inconveniencies it would be no disadvantage to Lords to elect and constitute such as are exercised in the studies of the Provincial Lawes of this Commonwealth and the customes of Mannors Fleta lib. 2. cap. 26. describes the office of a Steward and councelleth Lords of Mannors and Liberties to provide or elect their Stewards in these words Provideat sibi Dominus de seneschallo circumspecto fideli viro provido discreto gratioso humili pudico pacifico modesto qui in legibus consuetudinibusque provinciae officio seneschalliae se cognoscat jura Domini sui in omnibus teneri affectet c. cujus officium est curias tenere Maneriorum de substractationibus consuetudinum servitiorum reddituum sectarum ad curiam mercata molendina domini advisus Franci-plegiorum aliarumque libertatum Domino pertinentium inquirat c. By which description it is observed that he ought to have a double qualification viz. 1. In Moralibus 2. In Judicialibus 1. In moralibus he must be qualified with these properties viz. Circumspection fidelity providence discretion c. which may be reduced to two general heads to wit verity and Industry 2. In Judicialibus and therein
necessary to be done in for or about the better effecting of the premisses as fully and amply to all intents and purposes as I my selfe might do in person or otherwise and whatsoever my said Attorneyes or either of them shall joyntly or severally do in the premisses according to the true intent and meaning of these presents I do hereby allow of ratifie and confirme In witnesse c. The Grant of a Stewardship TO all to whom these presents shall come A. B. Knight sendeth greeting Know ye that I the said A. B. for divers good causes and considerations me thereunto moving have for me my heires and assignes given and granted and by these presents do give and grant unto John Preston of B. Gent. the Office of chiefe Steward and the place and execution of the Stewardship of my Mannor of Skipton in Craven in the County of York And the holding and keeping of all Courts Court-Leets viewes of Frank-pledge and of all other Courts of what kinde soever the same be to the said Mannor belonging or in any wise appertaining To have hold execute and enjoy the aforesaid Office of chiefe Steward and the place and execution of chiefe Stewardship and the holding and keeping of all manner of Courts usually held and kept within the same together with all manner of fees wages rewards profits advantages and emoluments to the said office of chiefe Steward or Stewardship of the said Mannor or Lordship belonging or appertaining or at any time heretofore accustomed and used to be paid rendered to or received by the chiefe Steward or Stewards there for the time being for or by reason of the said office of chiefe Steward or Stewards there for the time being from henceforth for and during the naturall life of him the said Iohn Preston In witnesse c. THE COURT OF Pypowders The definition of it what it is and why it was instituted together with its jurisdiction THis word Pypowder hath its definition from the French words pied i. pes and puldreux i. pulverulentus or as Skene de verb. significat Pede pulverosus dusty feet a Vagabond Pedder or Scotch Merchant who hath no certaine dwelling place and by whom Fares are usually kept to whom justice should be summarily ministred within three flowings and ebbings of the Sea or as some define it to be curia parvi ponderis and this is to be pedis-pulverizati and so the Lord chiefe Justice Anderson did use to define it for the speed and celerity there used in the present dispatch of businesse This Court of Pypowders is a Court of Record instituted and set up for the speedy and sudden dispatch of matters and differences arising in a Fare or Market and for the speedy doing of Justice and this in case of necessity for the sole benefit of Tradesmen and Merchants and for the present determination of all doubts and questions there then arising and that only upon sales and contracts had in the Fare and Market during the time thereof but not for matters acted and done before or at any time after the Fare or Market held but for matters happening and arising in pleno Mercato or in plenaferia 8 H. 7. fol. 4. b. This Court is of two kindes viz. 1. Either by prescription and this is an absolute jurisdiction 2. To be in a Fare and Market and to this a Court of Pypowders is incident And here two things are requisite viz. 1. This Court to be for matters arising in the Fare or Market 2. The matters to be determined there within and during the continuance of the Fare and Market and this appeares to be so by the Statutes of 17 E. 4. cap. 2. and 1 R. 3. cap. 6. and this is in a Court of Pypowders annexed unto a Fare or Market But in a Court of Pypowders which one hath by Prescription there they may heare and determine matters done before Bolstrod 2. part fol. 21. Goodson against Duffill Cro first part fol. 33. For in case of a Prescription such a Court may well be without a Fare from time to time and from day to day 13 E. 4. fol. 8. b. it was so adjudged in point of a Writ of Error where the error assigned to reverse a judgment given in curia pedis pulverizali there alledged to be held secundum consuetudinem ejusdem civitatis the Error insisted upon was because he shewed not that the matter upon which the action was brought was in pleno Mercato or in plena feria it is there expresly adjudged that this was no Error because the same was layd to be held secundum consuetudinem civitatis so that such a Court may be held without a Fare or Market and that the King may well grant such a Court to be held from day to day and such a Court may well be held by Custome without any Fare or Market and its proper denomination is from the speedy dispatch of businesse there so that the jurisdiction of this Court held by prescription may be extended unto all contracts and bonds to actions of trespasse and actions upon the Case and to this purpose was the case betweene Chambers Plaintiffe against Pert Defendant Hill 33. Eliz. Rot. 124. where an action of trespasse for an assault and battery was brought in a Court of Pypowders for an assault done long before and well maintainable as it was held But this Court held by prescription doth much differ from the ordinary Court of Pypowders and that by many circumstances This Court may be thus used and held viz. 1. Either by way of Grant 2. By way of confirmation And being thus held it differs from the ordinary Court of Pypowders which is incident to every Fare as appeareth by 12 H. 7. fol. 16. b. and 13 H 7. fol. 19. And the same Court is thus incident to a Fare and that of common right as it appears 13 E. 4. fol. 8. b. Old book of Entr. fol. 168. Fit dette en Gailor placito 1 f. 18. Fit account in Execution placito 3. If one will declare upon a matter in this Court in Fare there in such a case of necessity he ought to set forth in pleading that the same was done in pleno ferio or in plena Mercata otherwise not good But it is not so in case where a man hath and holdeth this Court by prescription in which Court they may heare and determine actions upon the case for words but not so in an ordinary Court held during the time of the Fare And by 6 E. 4. fol. 3. b. If a man in his Fare hath this Court here the Steward is Judge and no other for there are no Suitors and for a Judgment given in this Court a Writ of Faux judgment lieth not but a Writ of Error and with this agrees 7 E. 4 fol. 23. And where one claims to hold this Court by prescription and also by Charter if the Charter be not contrary
to the prescription this shall be good by way of confirmation As a Court-Baron is incident to a Mannor so a Court of Pypowders is incident to a Fare and by the Grant of the Fare this doth passe and with this accords 19 H. 8. Brooks case fol. 2. placito 7. and Brook tit incidents placito 34. and not to be fevered from them neither by grant nor by reservation 2 3 Phil. and Mar. Dyer fol. 133 pla 80. the Plaintiffe in a Court of Pypowder doth count of a contract made in the last Fare before where no plaint was then begun nor any judgment of Amerciament of the Defendant then given and this was held a good Error in both by all the Justices of both Benches Mich. 42. and 43 Eliz. B. R. Co. 10 fo 73. in the case of the Marshalsea where Hall braught a Writ of Error against Jones to reverse a Judgment given against him in the Court of Pypowders of the Market in the City of Glocester for that that Hall had published slanderous words of him viz. Mr. Jones and his Clerk have by colour of his office extorted and gotten 300 l. per annum by unlawfull meanes for many years together above their ordinary fees for proving of Testaments and granting of Administrations the which judgement was reversed for two Errors viz. 1. Because words did not concern any matter touching the Market and therefore the Court had no jurisdiction of it but if one slander any with Trades and Merchandizeth in the Market in any thing which concernes his Trade there an action for this well lieth 2. It appeares in the Count that the words were spoken before the Market and not during the time of the Market for as this Court hath no jurisdiction but in matters concerning the Market so the same Court hath no jurisdiction for matters concerning the Market unlesse they were acted and done during the time of the Market Bracton lib. 5. fo 335. a. De brevi de recto 1. de diversitate divisione summonitionis It is there said per quindecim dies ante diem quo comparere debeat summonitio ought to be Et talis summonitio dici debeat legitima Si minus spatium contineat possit illigitimam judicari nisi ob causam legitimam minus tempus statuatur ut propter personas qui celerem habere debeant justitiam sicut sunt Mercatores quibus exhibetur justitia Pepoudrous by the Statute of 17 E. 4. capite 2. And in this Court no Steward or other Minister shall hold plea upon any action at the suit of any person unlesse the Plaintiffe or his Attorney in presence of the Defendant do sweare that the contract in the Declaration c. was had and made during the time of the Fare and within the jurisdiction of the Fare but this oath so taken shall not conclude the Defendant for pleading in abatement of the action and to the jurisdiction of the Court this by the Statute of 1 R. 3. cap. 6. is made perpetual in this principal case here the Defendant in the Court at Rochester was condemned in an action of debt for 300 l. upon a Bond and Contract formerly made and entered into and for this cause the judgment was erroneous Note that in this Court the Steward is Judge because there are no Suitors there neither can the Steward delegate a Deputy 6 E. 4. fol. 3. 7 E. 4. fol. 23. A TABLE OF THE PRINCIPALL MATTERS contained in the BOOKE A A Merciament in the County Court 6 How they are forfeited in Court-Leet and what shall be causes to amerce c. 313 Of Amerciament 314 Attorneys in the County Court 10 how qualified 11 Actions within what time they must be brought 12 Who may bring Actions and who not 13 Appearance what it is 14 Answer what 17 Accompts of the Sheriff with a particular of some usual charges or fees paid by him at the rendring of them up 224 225 Appeals 295 The Sheriff shal have Counter-rolls of Appeals c. 297 Accessaries who 326 Alehouse keepers 332 Assize of bread 333 B BAyliffs in the County Court 11 how qualified ibid. Burglary what 324 Bond taken by the Sheriffe upon a Fieri facias for the payment of money in Court not within the Stat. of 9 E. 4. 50. 185 Burning of houses or Barns 326 Bail what it is 212 Any person making a warrant c. without original processe upon examination c. shall be committed without bail 214 Such as are in Execution c. not to be bailed ibid. None to be bailed that are prohibited by the Statute of West 1. cap. 15. he cannot bail any suspect of felony as formerly ibid. The Sheriff cannot refuse to baile one bailable upon tender of sufficient sureties ibid. Traytors or Felons not bailable 215 In the Vpper Bench the baile not chargeable till default assigned in the principal c. ibid. The new rules concerning speciall bail ibid. and 216 Bridges decayes 328 Boundaries 330 Bloodshed 331 Barretors ibid. Brewers 333 Butchers 334 Breaking of Pownds 338 Beadel why so called 347 Bastard may not inherit 351 C COunty Court when instituted 3 Now the Sheriffs Court ibid. By whom first exercised ibid. What action may be brought in it 4 5 6 12 The time when it is to be holden 5 Where it is to be kept 6 What actions will not lie in it ibid. Proceedings in it 14 The manner of keeping the Court 23 24 25 Processe of the Court Original 37 Judicial 43 County Clerk how to be qualified 7 He cannot practise as an Attorney 8 Can act nothing without the Suitors 9 His care in deputing Bailiffs 9 How he must enter plaints ibid. How he is punishable ibid. Count what it is 16 Continuance what 17 Challenge of Jurors What are good causes 21 Capias ad satisfac where it lies 71 174 Cap. lies not after an Elegit and Why 179 Note where it lies after an Elegit 178 What it is 179 One taken upon it must be kept in salva arcta custodia ibid. This Writ lies where a Capias lies in the originall ibid. Nothing but the body can be taken by this Writ 180 A man in the custody of the Sheriffe and a second writ is delivered to him he shall be in his custody upon it although not actually arrested ibid. Two bound in an obligation joyntly and severally both may be sued and taken in Execution ibid. This Writ lies not for damages in a Writ of Dower ibid. No return is required upon it ibid. Capias pro Fine what it is 181 An Elegit sued after one is taken for the Protectors fine he shall go at large ibid. No one taken upon it in trespasse c. ibid. Capias ut legatum what it is and where it lies 181 182 Capias ut legat inquiras de bonis catallis What it is 182 Capias ad valentiam what it is and Where it lies ibid. Coroners
the Vnder-Sheriffe justified the breaking of three doores to doe execution c. ibid. The Sheriffe may sell a Lease for years without taking inquisition of them 186 Four reasons Why no returne is required upon a Fi. fa. ibid. Felony he that flies for it forfeits his goods chattels and the profits of his lands 162 Vtlawes goods for felony 163 Felony What 324 Fore-staller 332 Frie of fish 337 Fine What shall be said reasonable for a Copy-holder to pay upon his admittance Forfeitures What shall make a forfeiture of Copyhold estates and What not 367 Forfeiture to build and pull down again 368 A Copyholder by the Common-law cannot make a Lease for one yeare but it is a forfeiture ibid. A Lease for one yeare by a Copyholder c. a forfeiture ibid. A Copyholder may inclose where it hath been formerly inclosed c. and not forfeiture 369 The heir may take the profits before admittance and make a Lease c. ibid. To refuse to pay a fine certaine a forfeiture or refuse to appeare at his Lords Court ibid. and 370 G GEnerall issues what 18 Goaler the Sheriffe must be cautions in electing of him 208 H HAbere facias seisinam what it is and where it lies 188 Habere fac possessionem what it is and where it lies ibid. High treason what 323 Hue and crie 327 Hedge-breakers 330 Hand guns 337 Hawking and hunting with Spaniels 338 Hares tracing ibid. Horses infected 339 Hayward why so called 347 Herriot service and herriot custome 348 I ISsues generall what 18 Jurors and what are good causes of challenge 21 Ingrosser 333 Inne-holders 334 K KNights-service what it is 346 Homage Escuage and fealty is Knights-service ibid. Knights-service is done by a man in propria persona ibid. L LEvari facias 174 What it is 187 Part of the sum levied a Sicut alias Levari fac may issue out for the residue 187 Leet what it is and the first institution of it 307 The power and authority of the Iudge of the Court 309 What may be enquired of in this Court 310 What things are not to be inquired of in this Court 310 What things are considerable in holding Tourns and Leets 312 Iury what 113 The method of keeping Court-Leet 316 Exhortation before the charge 319 What things are to be considered by a Iury in swearing 320 321 The charge of the Court 322 Lord of the Mannor how qualified 357 M MOdo forma 14 15 Mayor of a Staple hath power to hold pleas done there 170 Misprision of treason what 325 Measures and weights false 335 Musters 338 Mortmain 339 Mannor what it is 349 Of the first originall and institution of it ibid. The definition of the word ibid. 350 How Mannors were first created 250 Of what parts a Mannor doth consist ibid. Customary Mannor what it is and what may be a good Mannor to maintain Copyholders 351 By what names a Mannor may passe 350 Five necessarily appertaining to a Mannor 339 Mortmain what it is 350 N Non-suit how 16 Not informed what 18 Nihil dicit what ibid. Nusance 327 O OFfice of County Clarke 6 7 Office of Coroner in the County Court 9 10 Office and duty of the Steward in a Court-Baron 371 Order of the Judges of Assize at York concerning Essoins illegally returned into the County Court 56 57 P PLedges in the County Court 13 Proceedings in the County-Court 14 Vpon the Writs of Recordare Pone Writ of false Judgment c. in the Common-pleas after removall out of the County Court 69 70 71 72 Pleas specially to be pleaded 19 20 Parliament men how and when they are to be elected 216 Who may be Electors 217 Time when they are to be elected ibid. What persons are eligible and who not 218 Punishment of Sheriffes for their negligence in elections or returns 219 Penalties on Counties and places for not electing ibid. Presentments in Leets how traversable 315 Petty Treason what 323 Petty Larceny what 324 Physnomy defaced ibid. Pownd-breach 331 Pheasants and Partridges 338 Pond breaking ibid. 353 Pypowders the Court the definition of it what it is together with its Jurisdiction 393 394 By way of Grant and confirmation 395 The Steward is Iudge ibid. This Court is incident to a Faire or Market and by a grant of them it passeth 396 No plea shall be holden in it unlesse the Plaintiff or his Attorney do sweare that the Contract was made during the time of the Fare 397 R RUle what 17 Replication what ibid. Rejoynder what ibid. Replevin with the Proceeds upon it 34 35 36 37 Recognizance what it is 174 The manner of proceeding upon it ibid. Proceeds against the Sureties 175 Execution upon it of all the goods and chattels and a moyety of the Land ibid. Execution of the Land which the Reconusor had at the time of the Reconusance ibid. Two sued in Execution the money delivered to the Attorney of the one and to the other himselfe good ibid. The beir charged ibid. Execution upon the Statute and findes baile and doth not appeare at the day ibid. Two sue execution and one dies before the extent yet the lands shall be extended but otherwise upon a Stat. Merchant ibid. Three bound in a Statute joyntly and severally he shall have execution against one or all but not against two 176 Rape what 324 Reliefe is as much money as one yeares rent 347 Rescous what it is 353 Returns of writs and first what return is 189 Return of a Cepi corpus for one and a Non est inventus for others by one that was not Sheriffe ibid. Four reasons why no return is required upon a Fieri fac 186 Surplusage no hurt to the return of a writ 190 A Proclamation upon Exigent returned by a Sheriffe out of office void 191 Rescous upon a Latitat no good return ibid. Cepi corp returned upon a Cap. ad sat and hath not the body at the day an escape c. ibid. In all writs of execution except an Elegit no return is required but an Elegit must be returned ibid. To say that the party will not pay his fees no return ibid. The Sheriffe must set to his returnes his name of Baptism and sirname 192 Imperfect returns corrigible ibid. To say that the Bayliff will make no deliverance no good return ibid. He shall not be charged for insufficient returns by Bayliffs of Liberties ibid. Every return must exactly answer the writ ibid. The omission of words makes the return invalid ibid. Return of Rescous invalid c. 193 No good return where the Sheriffs name is wanting ibid. Note that the word exacteth amounts to as much as the within named ibid. The Sheriffe amerced twenty pounds because he did not take posse com to execute a Hab. fac seisin ibid. VVhat returne upon waste good and what not ibid. Returne of a Precept for Writ not good ibid. A bad return 194 A return by the Sheriffe in the third person no good