indivisibile non est admittendum in parte verum in parte falsum as my Lord Coke hath it in his 4. Inst c. 64. But as is said before the original Presentment cannot be found whether it be burnt or mislaid or kept secret or what is become of it is hard to determine although it hath with great care and pains been sought after and if it shall not in some short time be brought to light it may be an inducive cause hereafter I hope to our most gracious Sovereign Lord the King that now is to grant another like commission when he in his abundant Princely wisedom and goodness shall think fit that so there may be a standing Rule for the future by which the Fees of this Court may be taken and thereby all extortion avoided But that all the Fees that do belong and have been usually paid to the Filizers of this Court in their several capacities are not mentioned in the said Presentment is very plain and obvious in that these following are casually omitted that is to say there is no Fee inserted for the entring of the appearance either general or special nor for the Writ of Allocat ' nor for the Scire fac ' nor for the length of any Writs or Process nor for the entring of any such Writs or Process nor for the transcribing of the special Outlaries with Inquisitions returned into the Exchequer which as Clerks of the Outlaries they ought to do as well as the Clerk of the Outlaries in the Common-Pleas nor in case there be more than four Names in a Writ except Men and their Wives then to pay double Fees as now is paid if it be so for Latitats nor for any Distring ' against a Peer against a Corporation or against a Hundred nor for any Testat ' Distring ' or Testat ' Pone nor for any Writ of Homine replegiando or Capias in Withernam thereupon or Testat ' Capias in Withernam and divers other things as Inrolling of Indentures and the continuance of Process and the like but Bernardus non vidit omnia And it is certain the Filizers have made and do make all and singular the Writs and Entries above mentioned as is before proved and therefore certainly some Fees are due to them for so doing but what the due Fees are herein I cannot set down because I know them not in particular but shall leave them to the Judgment of the Judges of this honourable Court to determine what the Filizers ought to have in such cases onely the Reader may observe if he pleases to look back into the aforesaid Presentment and there among the Filizer's Fees he will find that for entring of Issues if they were above three Sheets they are allowed there 8 d. per Sheet And likewise the said Presentment mentions a Fee for every Writ of Withernam second Deliverance and Retorn ' habend before Avowry which seems to imply as if the Filizers had nothing to doe with it after Avowry if so how comes it to pass that since the said Presentment was made they have entred Replevins Avowries and Pleas in Bar thereunto and Judgments thereupon on their Filizer's Rolls as may appear among the many Entries of Issues by Original Writ before recited for the very next Term after it was made to wit in Trin. 6 Car. 1. one Gosnold Filizer of Suffolk entred a Scire fac ' in replevin and in Hill 7 ejusdem Nil dic ' in replevin entred by the Filizer of Somersetshire in Hil. 12. one Eveleigh Filizer of Devon entred two Issues in replevin and in Pasch 14. ejusdem Rot. 7. one Wright Filizer of Sussex entred a Replevin with an Avowry and Plea in Bar and Judgment for the Avowant and a Writ of Enquiry for Damages awarded in Mich. 14. the like by Payn Filizer of Sussex in Hil. following the like by the said Payn Trin. 15. an Issue in Replevin by the said Payn in Hil. 17. Rot. 22. one Blincoe Filizer of Somersetshire entred a Replevin with an Avowry and Plea in Bar in Hil. 1652. Rot. 16. one Woodeson Filizer of Yorkshire entred a Judgment in replevin with a Retorn ' habend and a Cap. in Withernam awarded in Hil. 1655. Rot. 12. one F. Gregg Filizer of Derbyshire entred a special Plea in replevin and Non pros superinde and Retorn ' habend in Trin. 1657. Rot. 14. the aforesaid Payn entred three several Declarations in replevin and for want of Avowries several Writs of Pone are awarded in Pas 23 Car. Regis nunc Rot. 16. one Bathurst Filizer of Kent entred a Judgment in replevin a Retorn ' habend Averia elongat ' and a Cap. in Withernam awarded and many more might be here inserted but these may suffice And whereas the said Presentment prima facie may seem likewise to contradict it self which well considered upon a review of the whole matter it doth not in that there is set down some Writs of the same nature and by the same names to belong both as well to the chief Clerk or Prothonotary as also to the Filizers and among others I shall observe these as namely the Supersedeas Habeas Corpus Process in appeal Subpoena Resummons and the like now to reconcile this seeming contradiction the Reader is to take notice that these last mentioned Writs and such like other Writs also may and do belong to the chief Clerk or Prothonotary when the Action is commenced by Bill without Writ as it is elsewhere observed that upon a Scire fac ' to revive a Judgment by Bill it is always said per Billam sine Brevi nostro ac per Judicium ejusdem Cur ' recuperasset c. So when it is commenced by Writ that is to say original Writ out of Chancery then may and do the said last mentioned Writs and other such like Writs also belong unto the Filizers to instance in one particular and more plainly as to this matter in that of Appeal my Lord Coke saith in his 3 Inst Cap. 105. fol. 237. of Pardons that in an Appeal of Death Robbery Rape c. the King cannot pardon the Defendant and his reason there given is for that the Appeal is the Suit of the party to have revenge by death and whether the Defendant be attainted by Judgment c. or by Outlawry the pardon of the King shall not discharge the Defendant and the reason certainly is very strong and prevalent Now the Appellors may sue such Defendants or Appellees rather by way of Appeal either by Writ or by Bill as the said Lord Coke saith in his said Inst Cap. 50. fol. 114. of Clergy speaking of the Statute that gives it that that act extendeth not to Appeals by Writ or Bill nor to Appeals of the Approvers and the late Reverend and Learned Judge Hale in his Book of Pleas of the Crown fol. 179. Title Appeals saith that they are of two sorts by Writ and by Bill touching Appeals by Bill saith he
Issues and other Entries on their own Rolls as hath been unjustly reported of them But now because the later Precedents may be thought the best proof the former being looked upon by some persons it may be as obsolete by reason of their antiquity these Years following of King James have been carefully and with great labour and pains searched in order year by year It appears then in Paschae 15. ejusdem Regis one Wythe a Filizer enters an Appeal of Murther and in Trin. 15. a Judgment by defalt and a Writ of Enquiry of Damages awarded Mich. 16. one Shaw a Filizer enters an Issue wherein one Edmund Dennye who was one of the Clerks to the then chief Clerk was Attorney for the Plaintiff and afterwards was one of the Jury of Attornies that made the Presentment of the Fees at the end of this Book And in that Term also Walker and Williamson two Filizers do enter two appeals of Murther In Hilary 16. the reversal of an Outlawry pro defectu Proclamationis and divers Issues Trin. 17. the like reversal of an Outlawry and divers Issues one of them in Replevin and Judgment thereupon by Percival a Filizer and several Judgments by defalt In one of which one Tetlow was Attorney for the Plaintiff and in another one Tippet and in others one Harborn and one Bunce were Attornies for the Defendants all which four last Attornies were four of them also that made the Presentment hereafter mentioned In Mich. 17. nil dic in cas In Hilary 17. Scire facias and Judgment in Replevin and several Issues In Paschae 18. Special Plea and Issue thereupon and nil dicit in Replevin upon a Writ of Second deliverance Trin. 18. several Issues and a Defalt Mich. 18. three Defalts Hil. 18. two Issues and two Defalts Trin. 19. the like Hil. 19. two nichil dicits and Writs of Enquiry awarded Paschae 20. Special Plea and Demurrer Trin. 20. several Issues Mich. prox the like and Hil. prox one Dodd a Filizer enters a writ of Right and other Filizers several other Entries of Issues and Judgments in Trin. 21. Hil. prox and Trin. 22. the like Mich. 22. one Seaman a Filizer enters the Reversal of an Outlawry for the insufficient return of an Exigent and to winde up this King's Reign in Hil. prox Edgar Filizer of London so soon as he was Sworn enters an Issue wherein one William Jumper was Attorney for the Plaintiff who was also one of those Attornies that made the said presentment And now we are come to the Reign of Charles the First of ever blessed Memory and because some as I said before look upon the latest precedents to be the best evidence I beg leave to be more prolix in this King's Reign than in the former for these were all searched likewise gradually Some Terms having no such Entries I have here omitted In Trin. 2. Mich. prox ejusdem Regis An. Car. Primi there are divers Issues and Defalts entered and also the Reversal of an Outlawry In Paschae 3. the said Edgar enters four Issues in London Hil. 3. Paschae 4. the like by other Filizers Trin. prox several Issues and Judgments and among them the said Edgar enters an Issue by Bill after an Imparlance Mich. 4. the like Issues and Judgments by others and one Jumper aforesaid Att. pro Quer. in one of them nay in Hilary 4. the said Edgar enters other two Issues by Bill a thing which the now Filizers of this Court do not in the least pretend unto but it seems he thought it was as lawfull and as much his right to enter by Bill as it was for the then cheif Clerk or Prothonotary to enter by Writ and was then an occasion of very great difference between that Filizer on the behalf of all the other Filizers and the then cheif Clerk or Prothonotary who had entred by Writ And upon good ground it is believed that the presentment of the Fees hereafter mentioned did settle the matter between them being as is supposed procured upon the Petition of the then Filizers to his then Majesty reciting the former narrative who was thereupon pleased in a short time after to grant his Commission to inspect into all the Fees of all the Offices both in this Court and all other his Courts of Common-Law in England and Wales and to settle the same but after what manner the said difference was setled between the then Filizers and the then cheif Clerk is not known but it seems it was not so setled as to take away the right of the Filizers to enter Issues on their own Rolls as by some hath been most falsely affirmed For that they did still continue on to enter by Writ but not by Bill as may appear by Paschae 5. Issue in Ejectment verdict and Judgment entred by Fisher Filizer of Dorset-shire in Trin. 5. the aforesaid Edgar entred an Issue in London and Clerk Filizer of Norf. entred two Issues Hil. 5. Gasnold Filizer of Suf. entred a cause against two Defendants wherein the one pleaded and the other suffered Judgment Paschae 6. nil dic in Ejectment by the said Edgar and an Issue wherein John Woodward a very able Clerk of the then cheif Clerk was Attorney for the Plaintiff one very well known to some of that name now in this Court and the said Clerk was the Filizer this I mention more at large and many other I might to shew that the Filizer did not enter it as he was Attorney in the cause himself but for another Attorney but if he had I think it had argued no less a right in himself to enter than if he had entred it for another Attorney and a multitude of those former Entries I have already mentioned as well as those I am yet to set down are made for other persons Attornies for the Plaintiffs as may appear by the Records themselves In Trin. 6. divers Issues and Judgments and Scir fac sur Judic in replevin Mich. 6. Trin. 7. Mich. 7. the like wherein Merefield the then Filizer of London enters an Issue for one Creme one of the Clerks of the then cheif Clerk Plaintiff who did not certainly enter it with the Filizer to have his privilege allowed him for that he might without doubt have had if he had entred it with his own Master the cheif Clerk but questionless he did enter it with the Filizer for that he thought in his Judgment he ought so to do the said Filizer having made out all the former process and also in that Term the Filizer of Lincoln enters an Issue upon a special Plea Verdict and Judgment Hilary 7. the like by Merefield and others Paschae 8. an Issue Defalt and a Demurrer in three several causes Trin. Mich. and Hil. prox the like Paschae 9. the said Merefield enters an Issue wherein Hatton Berners was Attorney for the Plaintiff and Clerk to the cheif Clerk and another wherein the aforesaid Jumper is Attorney for the Plaintiff who
Appearance after reversal of the Outlawry it is thus The first thing the Defendants Attorney must doe is to come to the Filizer of the City or County where the Action is laid and know of him when the Plur. Capias was returnable and then search the Filizer's Rolls of that Term and there he will find the Capias alias and plur Exigent and Proclamation awarded together with the return of the Exigent to the Quinto exact upon which the Defendant stands outlawed of all which he must take a Copy from the Roll and then come to the said Filizer to enter upon the said Roll by way of averment a defect in the proceedings either against the Statute of the one and thirtieth year of Queen Elizabeth for want of a Proclamation or otherwise as the case may require and then he prepareth his Bail-piece ready and bringeth the Bail into Court together with the Defendant and then causeth the bundle or file of Writs of Proclamations to be brought into Court and by motion of Counsel at the Bar alledging the want of a Proclamation and upon due search of the said File by the Secondary of the Court and none appearing to the Court to be filed the Outlawry is reversed by the Court which is always pronounced by the Seniour Judge of the Court if he be present if not by the next which reversal together with the names of such Bail who undertook that the Defendant shall appear to a new Original Writ to be brought by the Plaintiff within two Terms against the Defendant and to satisfy the Condemnation if he shall be convicted is all to be entred by the said Filizer up to the Process of Outlawry before entred for entring of which the Filizer's Fees are 4 d. the sheet And the Court of Common-Pleas have used to make such Entries as may appear by certain Orders Vide Praxis utriusque Banci fol. 108. in t alia of that Court made in the second year of Charles the First The words amongst others are these And it is farther ordered that all Reversals hereafter made shall be entred upon the same Roll where the Exigent is awarded being the most proper and fittest place for the safety and quiet of all Persons outlawed and their Executours to find the said Reversal in future times and not upon other Terms and Rolls as is now used Which also by the several Precedents of Entries of Reversals before-mentioned may appear to have been anciently the practice of this Court. And in these and the like Cases the Defendants do in the Common-Pleas appear by Attorney But in this Court the Defendant is obliged to appear in person with his Bail except this Court upon motion give leave to the Defendant to reverse per Attornatum The reason may be presumed to be this because upon all Outlawries in Criminal Causes in this Court the Defendants have been heretofore and now are obliged to appear in person to answer the contempts of the Law to the King and thereby they were immediately taken into custody for such contempts or otherwise disposed of at the discretion of the Court and in every civil Cause likewise it is a great contempt indeed of the Law for the Defendant not to appear after so many several Writs as go out against him before he is outlawed But yet a late Parliament thought the appearing in person so great a grievance to the Subject that it did receive a debate in the House of Commons upon a Bill then brought in but no Act passed thereupon for want of time as is presumed and whether hereafter it may not be a matter fit to be farther debated I shall leave to the wisedom of the great Council of this Nation when assembled in Parliament But to return it may be such Defendant hath been obliged to appear in person out of that high respect that ought to be given to the grandure of this Court the King himself as before is said being supposed sitting there And to be outlawed formerly in the Reign of King Alfred and untill a good while after the Conquest for Felony as my Lord Coke hath it in his First Institutes Cap. Villenage Sect. 197. fol. 128. b. was very dangerous for such Persons might have been put to death by any man as well as a Wolf that hatefull Beast might For utlagatus waviata Capita gerunt Lupina But then saith he no Man could have been outlawed but for Felony But you may see there how this Inhumanity was restrained and altered in the Reign of Edward the Third And now our Laws are made more tender of life though it be of such great Malefactours that so they may be punished or discharged by the hand of the Law onely which nulli facit injuriam And although then none could be outlawed but for Felony yet as he saith there that afterwards in Bracton's time and somewhat before Process of Outlawry was ordained to lie in all Actions that were Quare vi armis which Bracton calls Delicta for there the King shall have a Fine But since saith he by divers Statutes speaking in general of such Proceedings and not of any Court in particular Process of Outlawry doth lie in Account Debt Detinue Annuity Covenant Action sur le Statute de 5 Rich. 2. Action sur le Case and in divers other Common or Civil Actions But to go on he saith farther in his Chapter of continual Claim Sect. 437. That there may be other Causes of reversal besides the want of a Proclamation and that by plea for matters apparent as in respect of a Supersedeas variance or other matter apparent in the Record And yet in these Cases saith he some hold That in another Term the Defendant is driven to his Writ of Errour And farther if the Defendant be arrested by a Capias utlagat he ought not to be discharged out of custody without a Supersedeas for the same as appears by the last mentioned Statute of the 13. of the now King the like certainly is requisite in case where his Goods or Chattels are taken or else if he be taken and would reverse the Outlawry then he may have a Habeas corpus to bring him into Court to reverse such Outlawry But if all the Process to the Outlawry be well returned entred and filed then there is no way to reverse the same but by Writ of Errour which comes in the next place to be handled How to reverse an Outlawry by Writ of Errour IT hath been a received Opinion that no Writ of Errour lies returnable in this Court upon any Action brought by Original Writ in this Court but that it must be returnable in the High-court of Parliament but certainly that must be intended where Judgment is had and obtained upon such Action for every Writ of Errour supposes a Judgment of the Court given for the words in every such Writ are Si Judicium inde reddit sit but in this case where it is no
well known by most Practisers in this Court and shall onely say somewhat of removing Plaints out of such Inferiour Courts as County Courts or Sheriffs Courts and Court Barons or Manour Courts but more especially of County Courts and in them touching Plaints in Replevin there entred and sued without Writ out of the Chancery as it is said in Fitz. Nat. brevium fol. 170. if the Plaintiff or Defendant will remove such Plaints he ought to sue a Writ of Recordare out of the Chancery directed unto the Sheriff of that County in whose Court the Plaint is entred vide the Writ it self there at large which I here for brevity omit whereby it appeareth that the Plaintiff may remove such Plaint by such Writ of Recordare without any cause shewn in the Writ but the Defendant cannot without shewing cause for it in the Writ And the like he must doe in a Writ of Pone which removes such Plaints if such Replevin be sued by Writ out of the Chancery and both these Writs may be returnable in this Court and in the Natura brevium aforesaid you may find several Causes that may be inserted on the behalf of the Defendant and when such Cause or Plaint in Replevin is removed either by the Plaintiff or Defendant for in Replevin they are as it were both Plaintiffs in this Court the Defendant must enter his appearance with the Filizer of that County out of which the Plaint is removed and give a rule with him for the Plaintiff to declare and if the Plaintiff doth not declare by the time limitted in that rule against the Defendant or if he do declare and the Defendant avoweth or maketh Cognizance and upon the Issue tried or by defalt in the Plaintiff the Judgment be for the Defendant or Avowant then the Attorney for such Defendant may have in such case from the said Filizer a Writ of Return habend and Writ of Enquiry for damages and upon the Sheriffs return of this Writ quod averia elongat then the said Filizer will make a Capias in Withernam to take other Cattle of the Plaintiff's and if the Sheriff upon that doth return that the Plaintiff hath no Cattle that he can take in Withernam then the Filizer will make you a Capias against the Plaintiff's Body and so proceed to Outlawry And if the Plaintiff do declare that the Defendant yet hath and doth detein the Cattle c. and the Defendant appears and afterwards makes defalt the Plaintiff shall have Judgment to recover all in damages as well the value of the Cattle as his damages for taking of them and his Costs and to that end the Attorney for the Plaintiff may have a Writ of Enquiry of damages from the said Filizer the same proceedings in case it be in a Replevin for any dead Chattells c. And if a Replevin be sued by Plaint in the Court of any other Lord than in the County Court before the Sheriff as in the Court Barons or Manour Courts there it shall be also removed by a Writ of Accedas ad Cur. and the proceedings therein the same as before is said And if the Sheriff in any case return a tarde there may be an alias and pluries had and if a Replevin be within any Liberty or Franchâ—se and the Sheriff return upon the Writ of Replevin if it be by Writ that he hath commanded the Bayliff of the Franchise who hath given him no answer or that the Bayliff will make no deliverance then the Plaintiff may have a Non omittas to the Sheriff commanding him to enter into the said Liberty or Franchise and make the return and if the Sheriff doe it not then the Plaintiff may have an alias and plur non omittas and so a plur ad infinitum c. But if the Sheriff do not return the plur replevin abovementioned then the Plaintiff may have an Attachment against the Sheriff directed to the Coroners of the said County Vide the Statute de Ann. 17 Car. Secundi nunc Regis c. Cap. 7. made for a more speedy and effectual proceeding upon Distresses and Avowries for Rents in which you will find some former proceedings in Replevin much altered by that Statute Some Reasons impartially offered to shew how it hath come to pass that the Practice in this Court by Original Writ hath decreased and that by Bill increased and what hath occasioned some Entries of Issues and other proceedings to be made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls THE first and greatest cause or reason as is imagined of the increase of the one and the decrease of the other hath been and now is from the setled residence of the Kings of England at their Palace of Westminster in the County of Middlesex for in that County where they have resided it hath always heretofore been used in such Actions as were not proceeded in by Original Writ to take out a Bill or Precept rather and more properly directed to the Sheriff of that County to take the Defendant to bring him before the King at a certain day after a certain Return in the Term and then that Office of the Bills of Middlesex was an Office of great profit although but small Fees belonging to it by reason of the great number of them that were then taken out and upon a non est inventus returned there went out a Testatum which hath since that time gained the name of a Latitat into any other Foreign English County and this was grounded upon a Plaint brought before the King himself at Westminster and that it was so heretofore may appear by several Files of them now remaining in the former upper Treasury belonging to this Court a Copy of such Plaint and Precept I shall here set down as followeth viz. Philippus Byrd queritur de Johanne Middles ss Bateman de eo quod ipse decimo die Junii Annis Regnorum Domini Philippi Dominae Mariae Regis Reginae nunc primo The Plaint secundo vi armis videlicet gladiis c. Clausum ipsius Philippi apud Hendon in Com. predict fregit intravit Et alia enormia ei intulit ad dampnum ipsius Philippi Centum Solidorum contra pacem dicti Domini Regis dictae Dominae Reginae nunc c. Pleg de pros Johannes Doo Richardus Roo On the back of which Bill or Plaint it is thus written Ca ' r. Jovis post 18. sancti Martini Precept est Vic. quod attach Johannem Middles ss The Precept Bateman Ita quod sit coram Domino Rege Domina Regina apud Westm die Jovis prox post 18. sancti Martini ad respondend Philippo Byrd de placito transgr Et habeas ibi tunc hoc precept per. Bill Coverd On the back of which Precept it is thus returned Def. infra nominat nichil habet in balliva nostra per quod possit attach Respons Thomae Leigh Johannis