Measure the Secondly delay of Execution after Judgment had and obtained IT is very well known to all Practicers I presume in this Court that in all actions brought by Bill in this Court in which after the Plaintiffs have recovered and are ready to take out Execution that a Writ of Errour may be brought thereupon by the Defendant returnable in the Court of Exchequer-Chamber and very easie at all times to be purchased but in all actions brought by original Writ and Judgments thereupon had and obtained no Writ of Errour lieth thereupon but must be returnable in the high Court of Parliament and that not so easie to be purchased the charges thereof being very great the Fees being most or all of them double over and above what those are of Writs of Errour returnable in the said Court of Exchequer-Chamber and upon the affirmation of such Judgment in Parliament there is always very great costs awarded and taxed to the Defendant in the Writ of Errour who is Plaintiff in the action for delay of his Execution occasioned by such Writ of Errour besides no Writ of Errour can be obtained in such case but when there is a Parliament in being for no Writ of Errour can or ought to be returnable ad proximum Parliamentum in regard it would be so great a prejudice and delay to the Subjects Plaintiffs in such actions the times of convening of Parliaments being so uncertain and onely lying in the King's power as Supreme it being his Royal Prerogative to Call Prorogue Adjourn and Dissolve them when he pleaseth So that for the reasons aforesaid Writs of Errour are seldom brought upon such Judgments as are recovered upon actions brought by original Writ Nay yet farther also after all this when such Judgments before obtained by Bill are affirmed upon the Writ of Errour in the Exchequer-Chamber yet may a Writ of Errour per Stat. de Anno. 27. Eliz. Cap. 8. be brought returnable as aforesaid in the said high Court of Parliament to the intollerable delay and vexation of the Plaintiffs in such actions a thing which the common Law of England in its own nature abhors and detests it being Festinum Remedium and its property such as in some reasonable time suum cuique dare and therefore it is certainly the best way so to bring actions and after such a manner especially where Titles of Land are concerned or great damages likely to be recovered that so after Judgment had Execution may not long be delayed which is for the good and interest of the Subjects who are Plaintiffs in such actions That against some sort of Persons and in Thirdly some sort of Actions there is no other way to proceed in the said Court but by Original Writ BY the Law of this Land no Peer First as to Persons thereof ought by his Body to be taken or arrested by virtue of any Writ or Process in any Civil Cause whatsoeever But although he may not be arrested yet may an Original Writ of Pone in the nature of a Summons as the Case requires issue out of the High-court of Chancery to cause him to appear at the return of such Writ in this Court there to answer the Plaintiff in such Writ named to his Complaint therein mentioned and if the Sheriff to whom such Writ is directed do thereupon return that he hath taken Pledges of such Peer to appear in this Court according as by the said Writ he was commanded and he do not appear accordingly Then upon such return there may be had from the Filizer of the said County a Writ of Distring directed to the said Sheriff commanding him that he distrain such Peer by all his Lands and Chattels c. in order to cause him to appear and if he do not thereupon appear and such Sheriff return issues thereupon ad valentiam c. Then the said Filizer may make forth an Alias distring and also upon return thereof a Plur. distring ad infinitum untill such Peer do appear and it is the usual course for such Sheriff to increase or double the issues upon every return but if he return but small issues the Plaintiff if he pleases may move this Court that such Sheriff may return better Issues that is to say greater Issues all which Issues must be by the Plaintiff's Attorney brought into the Filizer's Office who made out such Distring and from thence estreated into the Court of Exchequer there to be levied upon such Peer's Lands and Chattels by way of forfeiture to the King for his not appearing as aforesaid And upon a nichil habet returned by the Sheriff upon such Distring there may go out a Testat distring into another County where such Peer hath Lands or Chattels and be proceeded upon as aforesaid But if in case that such Sheriff do return likewise a nichil habet upon such Writ of Pone before-mentioned then the Attorney for the Plaintiff may have an alias or rather a Testat Pone from the said Filizer directed unto the Sheriff of that County where such Peer liveth and hath sufficient and upon a return of Pledges taken as aforesaid the said Attorney may proceed thereupon by Distring ad infinitum in form aforesaid And besides such honourable Persons as Peers who for their honour are said to be à Latere Regis and are protected by Law from attaching or arresting by their Bodies in all Civil Causes as is before said There are other Persons that in their politick capacity cannot be arrested or attached such are all Corporations and Societies of men that act all under one Common Seal of their Corporation as the Mayor Aldermen c. of any City The Dean and Chapter of W. The Master Wardens and Fellows of a College and the like and any Company incorporated in the City of London or elsewhere And likewise all Hundreders in any County which are liable to be sued upon the Statute of Huy and Cry where Robberies are committed and Felons escape such Bodies of Men being very numerous and no single Person in his natural capacity bound to answer in any Action whatsoever but yet they may be proceeded against to be made appear and answer in the same manner and way as the Peers of this Realm may by Distring ad infinitum and after Judgment had any of their Goods and Chattels may be taken in Execution and if it be in the Case of Corporations they must by their bye Laws apportion the Levari upon the rest and thereby ease him or them whose Goods are taken and if it be in the case of Hundreders then any Person or Persons grieved may complain to two of the Justices of the Peace of the County wherein such Robbery was committed whereof one to be of the Quorum who have full power by the Statute of 27 of Eliz. cap. 13. to tax and rate the said Hundred for and towards an equal contribution of the damages recovered that so the burthen of the Execution may
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
Judgment of the Court but of the Coroners of the County against the Defendant for his contempt in not appearing upon the Exigent that he be outlawed there this Court hath a power to reverse that Judgment within themselves by a Writ of Errour which may be called a Writ of Errour coram nob residen and this appears by the Register of Writs folio 133. Title-errour in these words Rex c. Dilect fidelib suis F. P. Milit. Capital Justic nostro Sociis suis Justiciariis nostris ad placita in Cur. nostra coram nob tenend assign Salutem Quia in recordo processu ac etiam in promulgatione utlagariae in T. S. nuper de K. in Com. H. Yeoman in London nuper promulgat coram nobis ut dicitur retornat Error intervenit manifestus ad grave dampnum ipsius T. sicut ex querela sua accepimus Nos error si quis fuerit modo debito corrigi eidem T. plenam celerem Justitiam fieri volentes in hac parte vobis mandamus Quod si utlagaria praedicta coram nobis retornat existit tunc visis recordo processu utlagariae praed vocat coram vobis quos in hac parte fore videritis evocand ulterius pro adnullatione utlagariae praedictae fieri facias quod de jure secundum legem consuetud Regni nostri Angliae fuerit faciend T. c. But this Writ of Errour is not to be made by the Filizer although inserted here but as all others doth belong to the Cursitor to make the which together with the Return thereof and all the Process of Outlawry thereupon must be entred on the Filizer's Rolls of that County where the Action lies and Bail must also be given as in other cases of reversal And indeed were it that such Writ of Errour could not be brought returnable in this Court but in Parliament considering their intervals what great prejudice would arise thereby to such Defendants against whom all Writs and Process are duly returned and filed which the Attorney for the Plaintiff may doe if he think it fit though it is usual to forbear filing of the Proclamation thereby to let the Defendant come in if he will to reverse the Outlawry for want of a Proclamation by motion in Court as before is set forth and so may appear to the Action And this short account may suffice as to this matter it being but very seldom used to file all the Process whereby to put the Defendant to bring a Writ of Errour to reverse such Outlawry How to proceed to the Outlawry after Judgment IT hath been made a Question whether such Process could lie in this Court or not and the reason alledged hath been for that after a Recovery of a Judgment had and obtained although upon an Action brought by Original Writ such recovery is a Debt and no Action will lie for this it being grounded upon matter of Record but an Action of Debt in which Action this Court hath not used to proceed by Original Writ But in answer thereunto in this Case the Plaintiff doth not bring his Action but onely as it were pursues the having of his Execution to which end the Attorney for the Plaintiff is to take out from the Filizer a Capias ad satisfaciendum directed to the Sheriff of that County where the Action is laid and upon a non est inventus returned and filed the Filizer of that County will make out an Exigent post Capias and as is said before in the said Statute of the thirteenth year of his now Majesty's Reign which hath made a provision there for the proceedings in such Cases that there must be fifteen days between the Teste and Return of such Cap. So that if there were nothing else to prove it but the words of that Statute that were sufficient in it self But it may easily be farther proved that several Filizers of this Court have made out the same for several Attorneys It appears by the late Filizer of London's Books that in 9 Car. primi he made out one for one Barnard an Attorney and the like in the same year for one Woodward an Attorney and in the year 1651. the like for one Walpole an Attorney and in the year 1662. the like for one Marshall an Attorney all Attornies of this Court and the now Filizer of Yorkshire hath done the like and also the now Filizer of London hath done the like and that not onely upon Judgments recovered upon Actions brought by Original Writ but also upon Judgments affirmed upon Writs of Errour brought upon Judgments given in inferiour Courts in Actions of the Case and the like Actions that are usually brought in this Court by Original Writ And this Proceeding being very rare and seldom that it runs to so far a Line a few Precedents in this nature must serve the turn and may be sufficient to prove that it is at the Election of the Plaintiff if he pleaseth to proceed as well to the Outlawry after Judgment whereby the Defendant is again warned as it were to come in and pay the Plaintiff his damages recovered as to bring any action of Debt upon the said Judgment Somewhat concerning Imparlances upon Suits brought by Original Writ IT is to be presumed the course of this Court in this particular is not altered since the year of our Lord 1654. wherein in Michaelmas Term in that year this Court made several Orders and Rules and published them in Print under the hands of the then Judges to wit Henry Rolls Richard Aske and Richard Newdigate and among them these following For asmuch as some inconveniences do some times happen to the Plaintiffs by entring their Declarations in special Actions It is therefore ordered that the Plaintiff in such special actions shall have liberty to enter Imparlances the next Term following entring the same of the first Term with an Incipitur as it hath been usual and that all other Imparlances be duely entred before any Issues Demurrers or Judgments thereupon be entred That if a Defendant appear the first Term and give no rules to declare the Defendants Attorney may the second Term be compelled to accept a Declaration with an Imparlance and the Declaration may be entred as of that Term with an Imparlance over to the next Term or in the first Term with an Incipitur as before as the case shall require That if the Plaintiff declare not the second Term though the Defendant give no Rules yet a Non-suit may be entred at the end of the second Term upon a continuance over by him by dies datus but not the third Term or after Upon a mere real action an Imparlance to be of course That in Ejectment or any personal Action if the appearance be the first return of Hilary or Trinity-Term no Imparlance without consent or special rule In causes other than London or Middlesex if the appearance be before Crastin Martini or Mensem Paschae no
of them but of late there hath been taken the Fee of 03 04 And for the Copies of examinations by the Sheet 00 08 Item For entring and making a Copy of a licence to the Informer to compound with the Defendant upon any penal Law 01 00 Besides the Judges Fee 02 00 Item For every Distringas upon a plea of Not guilty upon Indictment or Information 02 04 To the Master 01 08 To the Secondary 00 01 To the writer 00 03 For the delivery of the Writ upon Record 00 04 The Master of the Office hath from his Majesty onely the annual Fee of 10 08 00 For the search for every Term 00 04 For a Jeavous prie for every Clerk for every Term 00 07 Item There hath been allowed by the Seal of the King's-bench to the Clerks of the Crown Office at the end of every Term a Breakfast which they have of late not performed but altogether omitted  For entring and estreating every Rule betwixt party and party from the King's Bench into the Exchequer 01 00 The Prothonotaries or chief Clerks have always during our memory had as many Clerks as it pleased them to doe the business of their Office which said Clerks are called Clerks of the Office and so soon as they are admitted Clerks of the Office they are Attornies and have been always during our memories in the same Court The Fees paid to the Prothonotaries or chief Clerks and their Clerks during all our memories respectively For Writs For the Latitat 05 01 The Prothonotaries Whereof is paid to the Secondary for the Prothonotaries 01 10 To him for the Judges 00 08 For the Clerk that writeth it 00 04 For the Attorney's half Fee 01 08 For the Seal 00 07 The Supersedeas Pro quolibet Magistro Offic ' 1 s. 8 d. Exigent in appeal Ve ' fa ' in appeal Distringas in attaint ' Habeas Corpus Certiorari Procedend Elegit Subpoena Retorn ' habend Withernam Second deliverance Restitution Scire facias Pro quolibet Magistro Offic ' 1 s. 8 d. Diminuc ' brev Libello habend brev Probibition Consultation Proprietat ' proband Distringas ad deliberand rem detent Distringas ad inquir ' pro valore Resummons Reattachment Ven ' fac ' in audit ' querel versus partem Habere fac ' seisinam possession ' Respond in attaint ' Vendic ' exponas Brev ' excommunicat ' Brev ' de Mittimus All these are accountable to the Prothonotaries viz. for every one 02 00 Out of which they allow the Clerk for writing 00 04 The Ven ' fac Averment versus Distringas Jur ' Vic' Alias and Plur ' Cap ' Fieri fac ' Capias ad satisfac ' Testat ' Inquir ' de dampn ' Distringas nuper Habeas Corpus super ce ' Corpus Vic'  Non omit For every one of these besides the seal 00 06 And for every Deliberant ' de record 00 04 And for the Jurat of the Distringas of Nisi prius 00 04 But all these during our memories have always been allowed to the Prothonotary's Clerks and are not accompted for to the Prothonotaries  Damages Clear In every Action wherein the Plaintiff recovereth damages to the value of 13 l. 6 s. 8 d. or above he payeth to the Prothonotaries after the rate of 1 s. in the pound for damages clear when his Judgment is signed Fees due and received by the Prothonotaries and their Clerks for Entries For every Deed how short soever 2 s. For every Action of Trespass 01 00 For every Not guilty 01 00 For every Justification in Trespass 02 00 For every Replication 01 08 For every Action super casum not above three Sheets 02 00 For every general Issue to it 01 00 For every Ejectione Firme 02 00 For every general Issue to it 01 00 For a Declaration in appeal 02 00 For general Issue for every Defendant in appeal 02 00 For every Recognizance super hab ' Corp ' for every Defendant severally 2 s. For every Deposition upon a Prohibition 02 00 For every Judgment by circumstant ' 04 00 Out of which the Clerk is allowed 00 08 For every other Judgment 02 00 Whereof the Clerk is allowed 00 04 For every Dismission 02 00 For every commission in Execution 2 s. For every Satisfaction 03 00 For every compaenc ' recordat ' 02 00 For every Non pros ' 02 00 For every Action of Debt Detinue or Accompt 01 00 For every general Issue thereunto 01 00 For every conditions performed 2 s. For every Replication to it 01 00 For every script ' dedict pro Custod script 02 00 For every Justification in Battery 02 00 For every Audit ' querel how short soever 02 00 For every special Imparlance 02 00 For every general Imparlance upon the plea Roll 01 00 For every Defalt upon record 02 00 For every Suggestion upon a Prohibition how short soever 02 00 For every Recognisance to it 02 00 For every writ of Errour how short soever 03 04 For entring the Errours 02 00 For entring in nullo est errat ' 02 00 For every Diminution 02 00 For abatement of a Writ of Errour and licence to bring a new 02 00 For entring the same 02 00 For every Recognisance single or with Condition 02 00 For every Inrollment whatsoever longer than three Sheets 06 08 After the rate for a Roll on both sides 06 08 Or half a Roll 03 04 For every Bail by Recognisance 02 06 The Fees for pleading received by the Prothonotaries Clerks due to themselves as Clerks and Attornies For their Fee in every cause for every The Prothonotaries Clerks Term as Attornies as well in the Crown Office as in the Prothonotaries Office 03 04 For their Fee also at every Nisi prius and at every inquiry for damages 03 04 For their Fee in every Appeal Assize and Attaint every Term 06 08 For drawing every Declaration in Debt Detinue Trespass Accompt c. not exceeding one Sheet 01 00 If more than one Sheet every Sheet 8 d. For drawing every Action upon the case or covenant how short soever 03 04 For drawing every Ejectione Firme 02 00 For drawing every Declaration in Ejectione Firme Covenant and upon the case being above three Sheets for every Sheet 00 08 For ingrossing in Parchment every Sheet 00 04 For drawing every Surmise upon a Prohibition for every Sheet 01 00 For drawing all special Pleadings and special Writs for every Sheet 00 08 For the copy of every Declaration Plea or other thing for every Sheet 00 04 For the continuing of every cause every Term 00 04 For entring of all things above three Sheets for every Sheet 00 08 Out of which they pay to the Prothonotaries after the rate of a full Roll on both sides 06 08 And for a half Roll 03 04 For entring of every Judgment with Circumstant ' 05 00 Whereof is paid to the Prothonotaries 03 04 For every other Judgment
the proceedings in this Court by Original Writ heretofore were and now are such as are altogether agreeable to the late Statute so made as aforesaid for setting out the particular cause of action in the Writ That the Filizers of the said Court have Fifthly not onely made and entred on record Writs and Process by original but also entred Declarations Imparlances Issues Judgments and divers other proceedings thereupon and also have inrolled Indentures and all this upon their Filizers Rolls IF as is said before Records themselves will not with some be looked upon as they have lately been a disputable evidence especially when very ancient it is not to be doubted but that this assertion may be also very easily proved and why they should be thought the rather to be so because of their antiquity no more reason can be given for it that I know of than that an Act of Parliament now in force and unrepealed made two hundred years since should have less power to command obedience to it than one made but twenty years since nay certainly the antiquity of any proof should make it the better And should you here have an account as it is possible to be done but with great trouble of the several Entries that have been made by the Filizers of this Court upon their own Rolls for so they are called for distinction sake onely to differ them from the Prothonotary or chief Clerks Rolls for most truly and properly all the Rolls of this Court are the King's Rolls or Rolls of the King's-Bench and that for the space of two hundred years and upwards omitting the times before that it would but tire your patience and swell this Volume to be ten times as big as ever it was intended to be But as it is easie Pede Herculis to guess at the magnitude of his whole body so by some few that shall here be set down as plainly and as truly as they may be that they may be repaired unto if occasion you may guess at the multitude that might have been inserted and therefore some few in each King and Queen's Reign within the time aforesaid may be sufficient in all reason to prove this point And now to begin with the Reign of Henry the Sixth being as is said before the oldest Rolls that are in the upper Treasury of this Court and so to bring it down according to the search I have made to these times It appears in Paschae primo ejusdem Regis In whose An. H. 6. time the Filizers Rolls were always filed first after the Rotulo primo which hath usually been a richly guilded Roll with the King's Picture drawn in the first Letter of the word Placita sitting as it were upon the Bench in Court and it sets forth the Person before whom the place were and the time when the pleadings were held To all which the chief Justice his name is put as a Witness and then the Filizer's name that provided that Roll at the bottom of it And this ought to be filed in every Term it being a great ornament to the Rolls themselves and 't is a great neglect some-where to be charged that so many Rolls for some years past have been made up without it Nay all the other Rolls following are nonsensically titled if such a Roll be not filed before them For then follow the other Filizer's Rolls and then after them the Prothonotary or chief Clerks Rolls all with this Title upon them Adhuc de Termino c. T. c. whereas if this Rotulo primo be not filed there is no Term at all appears unto which the Adhuc can have any relation And somerimes in that King's Reign they have been filed promiscuously one among another but still the Filizer's Rolls have been filed first But to return to the proof omitting the entring of Process or Writs upon originals for that is allowed to be their due of all hands It appears in that Term omitting also for brevity sake the names of the Plaintiffs and Defendants and their Attornies and the nature of the Action in rotulis 6. 9. 23. 44. 45. 58. 65. that several Filizers of several Counties entred several Issues and their names are upon the bottom of each Roll and in Mich. 2. ejusdem the like in rotulis 10. 14. 16. 18. And in the Reign of Edward the Fourth in Mich. 4. ejusdem An. Ed. 4. Regis in Rotulis 18. 57. 60. 68. the like Entries and in Paschae 5. ejusdem Regis the Rolls not being numbred but the Filizers names at the bottom there are several Issues entred and as for the Reign of Edward the Fifth it being not An. Ed. 5. three months long and the Reign of Richard the Third not three years long An. R. 3. and very troublesome they were in this search wholly omitted In Hilary 2 Henrici 7. Rolls not numbred several An. H. 7. An. H. 8. Issues entred Mich. 3 Henrici 8. rotulis 43. 49. 54. the like both as to Issues and Judgments by nichil dicit in Paschae 23. 24. ejusdem Regis the like in both Paschae 24. 25. ejusdem and Paschae 25. 26. and Paschae 26. 27. and Paschae 27. 28. the like in all these Terms Rolls not numbred but are to be found filed at the beginning of each Term and in Hilary 36. ejusdem Regis rotulo 14. is the Entry of an Outlawry in an Appeal of Murther and Paschae 37. an Issue and Judgment after a Verdict And in Hilary 1 2 of Edward the Sixth rotulis An. Ed. 6. 2. 3. 12. aliis rotulis the like Issues in Trin. 7. ejusdem rotulis 2. 8. 11. the like usque rotulum 20. In Trin. 1 Mariae rot 10. 12. 13. 15. and divers An. Mariae other Rolls the like In Paschae 1. 2. ejusdem several Issues Trin. prox the like Mich. prox rot 6. 7. 8. and other Rolls not numbred the like and Judgments Hilary 1. 2. the like in rotulis 13. 16. and in Mich. the 26 and 27 of Queen Elizabeth rotulis An. Elizab. 1. 2. 4. 16. 18. 19. and others not numbred there are two Appeals of Murther and one of Robbery and several Issues and special Pleadings In Mich. 36. 37. the like as to Issues In Paschae 44. rotulo 10. a Quare Impedit between the Queen and the Bishop of Hereford And in Paschae 5 Jacobi Roll not numbred there is An. Jacobi an Indenture entred by Howard a Filizer upon his own Roll in Trin. 7. an Issue the Roll not numbred in Hil. 9. Mich. 12. Hil. 12. Trin. 13. Hil. 13. the like Issues and Judgments by Nil dicit and Non sum informat But all these Kings and Queens Reigns have not been gradually searched in every Year and Term for it would have been too great a labour but onely some few to shew that there were no Times in which the Filizers did discontinue entring
with the Custos brevium if it be not in Middlesex if so then with the Lord Cheif Justice and some time before the day in Banck which is always the Essoin-day of the next Term after any Assises if the action lie in the Country or if in London or Middlesex then before the next Essoin-day after the Tryall he bringeth the Issue to the said Filizer to be entred upon his Rolls and in the aforesaid Venire facias and Distring there need not to be 15 days as in other process before Issue joyned between the Teste and return of each Writ and this appears by the Statute before mentioned made in the 13th year of his now Majestye's Reign The words of which Statute amongst other matters are these And whereas very many Suits commenced by Original Writs have been protracted and long delayed from Judgment and Execution by reason of the necessity of having fifteen days at the least between the days of the Teste and the days of Return of Writs now used in personal Actions and also in Actions of Ejectione firmoe for Lands and Tenements For remedy thereof and for the more easie expediting Trials and the better and more speedy executing of Judgments for the time to come Be it farther enacted by the Authority aforesaid That in all Actions of Debt and all other personal Actions whatsoever and also in all Actions of Ejectione firmoe for Lands or Tenements now depending or which at any time hereafter shall be depending by Original Writ in either of his Majesty's Courts aforesaid after This Court of King's-Bench being before mentioned in this Statute any Issue therein joined to be tried by a Jury and also after any Judgment had or obtained or to be had or obtained in either of the Courts aforesaid there shall not need to be fifteen days between the Teste-day and the day of Return of any Writ or Writs of Venire facias habeas Corpora Jurator or distring Jurator Writs of Fieri facias or Writs of Capias ad satisfaciend and that the want of fifteen days between the Teste-day and the day of Return of any such Writ shall not be nor shall be assigned taken or adjudged to be any matter or cause of Errour any Law Custome Statute Course or Usage to the contrary thereof in anywise notwithstanding Provided nevertheless that this A Proviso not to extend to a Capias and Exigent thereupon after Judgment or to a Capias ad satisf to make the Bail liable Act nor any thing therein contained shall not extend or be construed to extend to any Writ of Capias whereon a Writ of Exigent after Judgment is to be awarded nor to Capias ad satisfaciend against the Defendant in order to make any Bail liable but that the same continue and be as if this Act had never been made But to return to our former matter when the Attorney for the Plaintiff hath obtained a verdict and given rules and signed his Judgment he then entreth it up to the Filizer's Issueroll as aforesaid and taketh for his Fees the like Fees as by Bill But if the Defendant appear not at all but suffer himself to be returned outlawed upon the Exigent or Allocat then he bringeth the Exigent to the Filizer that made it out or else he fileth such Exigent himself with the Custos brevium of this Court and then getteth a Certificate from him that it is filed and bringeth it unto the Filizer and then he will make him out either a general or special Capias utlagat And this is all at present that may be thought necessary in this matter by way of direction Onely this let him take notice that Hilary Term is not so convenient a Term to begin to sue to the Outlawry in as other Terms are for the Defendant will not be outlawed then under four Terms although the Action be laid in London because of the short vacation that is between Easter and Trinity Term and in any other he will in three if the Original be returnable the first return of the Term. Also to observe in his Writs if he make them himself and carry them to the Filizer to be signed that as a man is always said to be utlagat outlawed So a Woman is always said to be Waviat waved that is to say derelicta left out or not regarded because Women are not by the Law obliged to be sworn in Leets to the King as Men are And now for the testes and returns of his Process he is hereby referred to a Modus return brevium placed toward the end of this Book And farther let him observe that if in an action of the Case where the cause of action is at large set out the damage be laid in the Writ of Capias to arrest to Ten pounds or above his Client ought to have good Bail but not so if the Defendant appear upon the Exigent or Allocat although it be laid 500 li. damage And if such Action be laid in London the Defendant will be sooner outlawed in respect of the Hustings there than in any County for that they are held in less time than the County Courts are holden in for there must be five Hustings returned upon the Exigents in London and five County Court days in the Counties at which the Defendant hath been called and hath not appeared Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the reversal of the Outlawry AS to the appearing upon the Arrest Appearance upon arrest if special Bail be required it must be thus The Defendants Attorney must come to the Filizer where the Action is laid and enter his special appearance that is by giving in a note to him of the Bail who they are and where they live and then the Filizer will go with him before some Judge of this Court and put in the Bail before him and then the Defendant's Attorney must give in a note of the Bail and before what Judge put in unto the Plaintiff's Attorney and if he accepts of the Bail he puts his hand to the Bail-piece that he doth so and then he fileth it with the Custos brevium of this Court and if the Plaintiff's Attorney excepteth against the Bail the Defendant must get his Bail to justify themselves before the Judge and yet if after that the Plaintiff is not satisfied with the Bail the Defendant must either put in other Bail or else justify the same upon oath in the Term-time in Court and then the Plaintiff is bound to accept them And as to the Appearance to the Exigent appearing on the Exigent there as is said before no Bail is to be given but onely the Defendant is to enter his appearance with the Filizer per Attorn suum and then taking from him a Supersedeas Quia improvide suggesting such appearance in the Writ which Writ he must deliver to the Sheriff And as to the appearing upon the reversal
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
aforesaid Salop. Bazil Hearne at his House in Basinghall Street Somers Robert Randall at Mr. Abbington's in Coleman Street Southamp Francis Caplyn at his House in Wineoffice Court in Fleetstreet Staff Michael Martyn Suffolk James Fuller aforesaid Surrey John Trye aforesaid Sussex Richard Aylwin War James Fuller aforesaid Westmorl John Hinde at the Horns in Bell Yard Wigorn.  Wilts Samuel Porter in Star Court in Friday Street Civ Cant.  C. Cov.  C. Bristol John Ayres at Mr. Philip's House in Wandall Court in Blackfryers C. Ebor.  C. Exon.  C. Glouc. Henry Ewen C. Lincoln  C. Litchf  C. Norw  C. Wigorn.  Vil. Not. William Bennet V. Kingst super Hul. William Osborne V. South Francis Caplyn aforesaid V. Pool  V. nov Cast super Tin  And where it happens that there is no Filizer any other of the above named Filizers may make out the Process and the Teste of the chief Justice is sufficient although without any Filizer's name to the same and such Filizer may also doe and perform all other matters whatsoever subsequent or belonging thereunto that so a failure of Justice in the proceedings may be prevented And when any change shall happen in any of the aforesaid Filizers by death or otherwise or any admitted into the vacant places it may be known of the Keeper of the Sign of the Latitats in this Court who keepeth a Book of the Names of the Filizers Clerks of the Office and Attornies at large of the said Court and the time when they were admitted FINIS THE TABLE THAT the practice by Original Writ is of very great antiquity in the Court of King's-Bench Page 1. That it prevents in a great measure the delay of Execution after Judgment had and obtained 6. That against some sort of Persons and in some sort of Actions there is no other way to proceed in the said Court but by Original Writ 9. That it is most agreeable to the Statute lately made for setting forth the cause of Action in the Writ 13. That the Filizers of the said Court have not onely made and entred on Record Writs and Process by Original but also entred Declarations Imparlances Issues Judgments and divers other proceedings thereupon and also have inrolled Indentures and all this upon their Filizers Rolls 19. Some directions in the way of practice by Original Writ in this Court 55. The King's Majesty's Fines upon Original Writs 59. Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the Reversal of the Outlawry 67. How to reverse an Outlawry by Writ of Errour 74. How to proceed to the Outlawry after judgment 77. Somewhat concerning Imparlances upon Suits brought by Original Writ 79. How to plead an Outlawry either in Abatement or Bar of any Action 84. Where Suits by Original Writ ought to be laid and when the Visne may be altered 86. How to proceed so as to have a special Capias utlagat ' together with the Inquisition thereupon taken sent into the Exchequer and to get a Lease from the King of the Defendant's Lands 88. Somewhat concerning the drawing of Declarations by Original Writ 91. The manner of removing Actions or Plaints out of inferiour Courts into this Court and after that how to proceed in them 93. 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 97. Some Precedents of frequent use both of Writs and the Entries thereupon and also Declarations Imparlances Issues Judgments and Defaults and other proceedings in Actions brought by Original Writ and entred by the Filizers 111. Le Capias Alias Plur ' Exigent 112. Le Foreign Proclamation 113. Le Allocatus 114. Le Supersedeas quia improvide ibid. Le general Cap ' utlagat ' 115. Le special Cap ' utlagat ' ibid. Intratio separal ' process de Cap ' Alias Plur ' Exig ' Proclam ' utlagaria reversat ' superinde 116. Le special ' Bail sur reversal del utlagaria 121. Le special ' Bail sur Arrest ibid. Supersedeas sur ' reversal del utlagar ' pro defectu Proclam ' ubi bona catalla Def. capt ' fuer ' per Breve de special Cap ' utlagat ' devant le reversal 122. Aliter ex assensu Attorn ' pro Quer ' sur ' Def. imposition ' Ball ' coram un ' Justic ' Cur ' 123. Breve de Cap ' ad satisfaciend ' Exigent superinde 124. Exigent post Cap ' puis un recovery pro dampnis in Commun ' Banco affirmetur in Cur ' hic sur ' brief de Errour 125. Breve de Pone sur ' un ' brief de Recordare ibid. Intratio inde 126. Breve de Distring ' super pone praedict ibid. Distring ' envers un ' Peer 127. Testat ' Distring ' sur ' nichil retorn ' envers un ' Peer ibid. Testat ' Pone sur ' tiel retorn ' envers un ' Peer ibid. Distring ' versus un ' Corporation vel Hundred 128. Un ' special Cap ' ad arrest ' ibid. Intratio inde ibid. Testat ' Cap ' superinde 129. Intratio inde ibid. Supersedeas in abatement del brief de Exigent quia Def. in ill ' nominat ' Miles quando fuit Miles Baronettus 130. Breve de Exigi fac ' post un ' Pone Cap ' retorn ' fuer ' Def. in contempt ' Dom ' Regis 131. Breve de Certiorar ' Vic' L. pro eo quod Exigi fac ' casualit ' perdit ' est super quo Def. fuit retorn ' utlagat ' 132. Distring ' Proclam ' en un ' brief envers un ' Corporation 133. Intratio de Imparlance in ascun action per original ibid. Scire fac ' sur ' pardon utlagar ' per Statut ' 134. Retorn ' superinde 135. Retorn ' habend ' ubi Quer ' fec ' defalt ' ibid. Intratio inde 136. Retorn ' habend ' alio modo ubi Quer ' fecit defalt ' breve de inquir ' de dampnis 137. Simile inquir ' de reddit ' aretro valor ' Averior ' capt ' post suggestion ' Def. in natur ' Cognition pro quodam annual ' reddit secundum Statut ' 138. Breve de secunda deliberatione 139. Non omittas 140. Intratio inde 141. Distring ' ball ' super cepi Corpus ibid. Intratio inde 142. Intratio de languid ' in Prisona super un ' Capias 143. Habeas Corpus licet languidus ibid. Intratio de amerciament ' Vic' pro non retornand ' breve de Cap ' Alias aut Plur ' c. 144. Distring ' nuper Vic' ibid. Intratio inde 145. Non pros ' pro defectu Nar ' post comparentiam super Exigi fac ' 146. Breve de Cap ' in Withernam