upon admission into any vacant place It is entred in this Court Termino Paschae An. 33 Elizabethae upon one Hilsdons a Filizer's Rolls at the beginning of the Rolls thus Memorandum quod cum W. L. gen seit The Entry of his admission Sile. Paschae 38 H. 6. rot 73. Mich. 26 27 Eliz. rot primo Mich. 8 Car. primi rot primo existen de in officio Filizar pro Com. B. B. idem W. die c. prox post c. isto eodem Termino coram Domina Regina apud Westm in propria persona sua ven ex mera spontanea voluntate ipsius W. sursum reddidit in manus C. W. Mil. Capitalis Justic dominae Reginae ad placita coram ipsa Domina Regina tenend assign Officium Filizar dictor Com. B. B. praedict Et idem C. W. adtunc ibidem praedict Officium Filizar dictor Com. B. B. Thomae Hilsdon gen tunc praesent in Cur. dedit concedit ad dictum Officium Filizar Com. B. B. praedict praefat T. H. adtunc ibidem admisit Habend Tenend Occupand Exercend sibi ut liberum Tenementum suum c. cum Feod vad proficuis eidem Officio incumben de antiquit debit consuet Et dictus T. jurat est Secondly As to the nature of his Office you see by his Oath aforesaid He is bound truly and diligently to extract all Fines Issues and Amerciaments due to our Sovereign Lord the King arising in his office and so he is also bound as the King's Clerk in Term-time to attend the Grand-jury for the body of the County of Middles where the King's Court of his Bench is now resident or where-ever else it shall be in England to draw the Inditements that they are to present and if occasion to ingross them but it hath been usual of late years for such Filizer to whose lot it falls being appointed thereunto by the Court to get one of the Clerks of the Crown Office being always ready in Court to attend and perform this service for him And for a farther account of the nature of his Office it will not be amiss here to set before you a Copy of a Narrative delivered me by a late Cap-officer of this Court which was heretofore as is conceived addressed by one Edgar Filizer of London in this Court and other the then Filizers thereof by way of Petition to the then Judges of this Court about the year of our Lord 1630. And some short time before that the said Presentment in the Title page mentioned was made of the Fees of all the Officers of this Court and taken by virtue of his then Majesty's Commission under his great Seal of England a part of which Commission together with a Copy of the said Presentment you may find placed at the end of this Treatise In which Narrative or Petition rather it was thus then declared and set forth That the Filizer is the onely immediate Clerk and sworn Ministerial Officer in this Court for the King 's assured and true service therein By whose duty through continual and constant use and former practice in the Law diligently performed great increase of profit hath been in all former Ages in a very great measure augmented yearly unto the Crown of England untill of late years and now that the Statutes de An. 2 H. VI. cap. 10. and 5 6 Ed. VI. cap. 16. are so neglected as that through gross ignorance daily abuses of right Entries and Proceedings upon Original Writs have so changed and altered the right institution of the Law in that Point to the scandal and slander of the Law that the wonted yearly profit of the Crown of England is thereby stopped and diverted and the People of England much grieved and oppressed all which happening through the innovated incroached and intermixed practice illegally of the Servants of the Chief Clerk who being no immediate Clerks of the King nor sworn for performance of true Service to him and having neither Offices to be seised or places to be fore-judged of they corrupt usurp and abuse the process practice and Offices of the said Filizers by making process to and of Outlawry in the name of the Filizers without their privity or consent and afterwards never file the Writs of Exigent by which Fraud the King's Majesty is deeply prejudiced both in the real and personal Estate of the Party outlawed by common Bayl 's taken by consent of such Servants or Clerks to the Chief Clerks And there is or ought in Law to be the King's Clerk the Filizer constituted upon oath to perform and doe these Services for the King and People for every City and County of this Kingdom upon forfeiture of his Office if found in any Fraud committed All which with divers other Enormities and Abuses the then Filizers offered and were ready to make appear to the said Court Vpon which it appears that the then Filizers did satisfy the then Judges of this Court of the nature and duty of their Offices And what it was then it continues so still being since that never altered by any Act of Parliament or any other due course of Law And that as formerly so now much profit will accrue to the Crown of England by proceedings grounded upon Original Writs and therefore ex debito Justitiae ought to be incouraged in this Court is very plain and obvious And seeing it is the duty of every loyal Subject of what degree soever to advance the Revenue of his Prince as much as he can by discovering all legal ways and means by which it may be obtained so much more of him or them that are not onely Subjects but also Officers of the Court under him as is before said the Filizers of this Court are And first of all great profit would accrue to the Crown of England by such proceedings in respect of the great number of Original Writs that would issue out of the High-court of Chancery yearly more than now do whereby the Seals in that Court would much increase Secondly in respect of the many Fines more than now are that would be paid upon such Originals yearly whereby his Majesty's Fines in that Court would be also much increased And thirdly in respect of the great number of Writs that would be sealed in this Court of King's-bench by his Majesty's Green-wax Seals more than there is at present whereby the yearly Revenue thereof would likewise be much augmented for if any Defendant be arrested by a Writ of Capias ad respondend upon an original returnable in this Court then indeed one Writ serves but if the Plaintiff cannot thereupon arrest him as commonly it falleth out so then is he forced to take out an alias Cap. and after that a plur Cap. and if he cannot arrest him upon either of these two last then he takes out an Exigent and Proclamation and all this is in the Law a favour to the Defendant
to cause him to appear if he will and if he will not then upon returns of the Exigent an Outlawry goes out against him So that in many actions there are five Writs commonly sealed in this Court in one cause before the appearance of the Defendant and after appearance in each cause a Supersedeas and for non appearance an Outlawry and divers other Writs All which matters duly considered would certainly as much augment the Revenue of the Crown of England as it hath done formerly when this practice by original Writ flourished in this Court Thirdly As to the antiquity of his Office It is evident and will be so to any person that will take the pains to search the Records of this Court in the Reign of Edward the Third that there were then such Officers as Filizers in this Court For that at the bottom of the Plea Rolls of this Court are set their Names as so many several * Or chief Clerks Prothonotaries to such Writs and Issues and other proceedings as they then entred and it is possible to prove it also before that time but this being above 300 Years since may be thought sufficient and for above 200 Years past it appears by the Statute of the tenth year of the Reign of Henry the 6th Cap. 4. and the 18th of the same King Cap. 9. where in both those Statutes the Filizers and Exigenters of this Court are mentioned that there were then such Officers in this Court and to go much farther if it were necessary it is rational to presume that there were such before the Norman Conquest For that my Lord Coke in his Preface to his third Report saith That Writs of Assise and other Original Writs were returnable into the King's Courts before the Conquest and that as Justice Fitzherbert saith in his Preface to his Book called Natura Brevium that seeing they be speaking of such Writs the Rules and Principles of the Science of the Common Law they do manifestly prove that the Common Law of England had been time out of mind of man before the Conquest and was not altered or changed by the Conquerour And therefore certainly if such proceedings then were by original Writs it is no Foreign presumption to believe there were such Officers as Filizers who made out such Writs Also under the name and Office of a Filizer in this Court is comprehended the Exigenter The Clerk of the Supersedeas the Clerk of the Outlawries and the Clerk of the Jurours and therefore it will be necessary to consider all these places apart and distinct the one from the other and to observe what they do in these several Capacities And First As Filizers they have and 1. As Filizers do and of right ought to make out and enter upon all Actions brought by original Writ all Writs and Process whatsoever some whereof are these viz. all Cap. Als. Plur. Testat Cap. Distring in Trespass and trespass on the Case and in every suit qui tam. c. in every Rapt Custod in every trespass contra formam ordinationis in every ejectione firme and such like special Actions every Cap. Als. Plur. in appeal of Murther Robbery and Maihm every Resummons Habeas Corp. Distring in Attaint and Writs of Withernam Second deliverance and retorn habend and venir fac subpoena Distring Jur. and divers other such like Writs They likewise take and enter all appearances general or special wherein good bail is required upon original Writs they enter all general and special Imparlances they make Copies of writs of Attaint and they give Rules ad narrandum ad placitandum ad replicand and the like and enter Nonsuits for want of declaring and these things and the like they do as Filizers Secondly As Exigenters they make 2. As Exigenters out and enter in the actions before mentioned and such like actions all and every Writ or Writs of Exigent and Proclamation Allocat Exigent post Cap. Scir fac sur general ou special pardon le Roy and such like Writs Thirdly As Clerks of the Supersedeas 3. As Clerk of the Supersedeas they make out and enter upon the Exigent roll in the said actions and such like all Writs of Supersedeas quia improvide or otherwise all Writs de non molestando and other such like Writs both as well upon appearance of the Defendant to the Exigent as after that the Defendant is outlawed and either his Body taken by a general Cap. Utlagat or his Lands or Goods by a special Fourthly As Clerk of the Outlawries 4. As Clerk of the Outlawries they make out and enter in the said actions all the said Writs of general and special Cap. Utlagat and deliver them of Record and transcribe such special Capias and Inquisition when returned into the Exchequer and make out likewise the Cap. pro Fine Regis sur capiat and other such like Writs and if such Outlawry be reversed they enter up such reversalls Fifthly As Clerks of the Jurors They 5. As Clerk of the Jurors likewise make out and enter in the said Actions all Distring Jur. or Habeas Corpor and deliver them of Record and as is said before attend in Term-time the grand Jury for the County of Midd. or in whatsoever other County the Court of Kings-Bench shall sit They are Attorneys of this Court as soon as they are admitted Filizers and do practise if they please as Attorneys by Writ or Bill but they cannot enter any thing by Bill on the Prothonotary or chief Clerks rolls but one of his Clerks must enter for them Their Writs and Process are always filed with the Custos Brevium and not with the said Prothonotary or chief Clerks and they do many other things belonging to their said Offices too long here to insert and are therefore here spared because more of this matter may be found in the Copy of the presentment before mentioned placed at the end of this Book In the Court of Common-Pleas the Process to the Outlawry runs through divers Officers or Clerks hands but in this Court it is all in one person the Filizer which is such a sole and absolute Officer and his Office was and is much after the same manner executed as the Prothonotary's Office of Monmouth and there was no more but one such Officer in this Court to all the ends and purposes aforesaid both before and in the time of Henry the 6th nor since in which time the practice by original Writ in this Court was greater than that by Bill Let this suffice by way of Preface to shew what Writs and Process do belong to the Filizers of this Court to make out and enter It is most certain and I make no doubt but that it will be granted me that all the supreme Courts of Common-Law at Westminster through length of time have very much intrenched the one upon the other as might easily be made appear but that being nothing to the matter
in hand shall be passed over and that it is as difficult to reduce their ancient practice into its right and due course as it is to divert the water of Thames from running in its now Chanel but yet certainly it is not so hard a task for any of the said Courts to set to rights the different practice within the same according to its ancient use and Custome and thereby hinder one Officer from intrenching upon another which brings me to the first matter intended to be handled which is as follows THE FILACER'S-OFFICE IN THE Court of King's-Bench That the Practice by original Writ is First of very great antiquity in the said Court FOR the proof whereof it is necessary to observe that heretofore and now at this time also there are three several ways of proceedings in this Court that is to say by original Writ by Bill and by Attachment of privilege The First Grounded upon a Writ issuing out of the high Court of Chancery returnable in this Court The Second Grounded upon the Custome of the Court. The Third Grounded upon the grace and favour of the Court besides divers other proceedings upon Actions removed out of inferiour Courts by Writs of Recordare Certiorari Habeas Corpus and the like into this Court and although my Lord Coke in his Preface to his eighth report saith that all the four supreme Courts at Westminster be all the King's Courts and have been time out of Memory of Man so that no man knoweth which of them is most ancient yet without doubt it may be easily known what was the original practice in this Court for the said Lord Coke treating of this Court in his 4th Institutes Cap. 7. saith that if a Writ be returnable coram Justic nostris apud Westm it shall be returnable in the Common-Pleas but if it be returnable in this Court it must be thus coram nobis ubicunque fuerim in Anglia and takes no notice of any Writ returnable in this Court at a certain place and farther he saith in the same Chapter that in former times some ill disposed Clerks of this Court because they could have no original Writ out of the Chancery for Debt returnable in this Court they would sue out an original Writ in an action of trespass a mere feigned action and so proceed to the Exigent whereas in truth the cause of Action was for Debt and when the Defendant appeared c. all the former proceedings were waved and a Bill filed against the Defendant for Debt This he there saith is an unjust practice in derogation of the dignity and honour of this Court and worthy of severe punishment according to the Statute of Westm the First Cap. 29. when it is found out And now in these times although some Clerks and Attornies of this Court doe not the very self same thing yet they come very near to such irregular practice for that they do very often proceed by original Writ in such actions as they may justly proceed in as far as the Exigent and when the Defendant appears thereunto by Supersedeas then is there a Bill filed or Declaration delivered in Debt or any other action by consent of the Attornies on both sides supposing the Defendant to be in Custod Marescalli c. as if he had been arrested by a Bill of Middles or Latitat that supposes a Bill in this Court and so waive the whole former proceedings by original Writ and proceed on to Judgment by Bill a matter certainly worthy to be taken notice of by this Court as an abuse put upon the ancient proceedings by original Writ therein and not onely against a known rule or maxim in Law expresly Quod omnis brevis Judicialis sequitur suum Originale but also may prove very prejudicial to the Plaintiffs in such actions if the same should happen to be taken notice of there being nothing in Court as a foundation to warrant such proceedings by Bill and so all as it were coram non Judice And it seems that that great and learned Lawyer looked upon all Writs whatsoever returnable in this Court to be returnable coram nobis that is coram Domino Rege ubicunque tunc fuerit in Angl. this Court being moveable with the King's Person and not local as the Common-Pleas is and therefore called the Kings-Bench and that this is the natural and genuine style of this Court may be gathered from hence that several of the former Kings of England have sate personally in this Court as the said Lord Coke saith in the same Chapter and as Speed in his Chronicle fol. 595. observes that Henry the Third sate in person with his Justiciars upon the Bench at the Arraignment of Peter de Rivallis and others and that he gave Sentence against him and sent him to the Tower And also Sir Richard Baker in his Chronicle fol. 205. saith that Edward the Fourth sate in Michaelmas-Term in the Second year of his Reign three days together publickly with his Judges in this Court to acquaint himself with the orders of the Court and to observe what needed reformation in it either at Bench or at Bar. The former of these Observations together with some other matters in the like nature are reported by Mr Serjeant Rolls in the first part of his abridgment fol. 535. And I believe it to be the hearty desire and affectionate wish of every Loyal Subject especially of the long Robe that his now Majesty would be graciously pleased once in his Reign at the least to honour this his peculiar Court with his most glorious presence a sight certainly that would be in its self so transcendently excellent that it would parallel if not exceed that of his Coronation But to come more close to the matter proposed It appears as is said before if the most ancient Records may not possibly be by some against usual practice as they have lately been esteemed the weakest evidence that in the beginning of the Reign of Henry the Sixth which is now above two Hundred and Twenty years since and are the oldest Rolls now remaining in the upper Treasury of this Court and long before that time also by Records in other places and from that time untill about the beginning of Queen Elizabeth's Reign The proceedings in this Court were more by Original Writ than by Bill The several Terms and Number Rolls and the years in which they are being too numerous here to insert and would have made this Book larger than intended and therefore it is left to the Judicious Reader if he pleases for his own satisfaction at his leasure to search the same Records which are very well worthy the labour and trouble of any that desire to be acquainted with antiquity of this nature And this may be sufficient to shew that the Practice by original Writ although now much decreased from what it was at first hath been very anciently used in this Court That it prevents in a great
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