Defendant in any Action or Suit is to do is to appear and shew himself in person or by an Attorny in the Court to answer the Action and defend the Suit He may also appear by an Essoin which is an excusation coming from the French word Exoine it doth delay the cause a Court day longer the common Essoin is de male vener and if he do not appear the next Court then it passeth by default Judgment entred and Execution issues out against his Goods and Chattels But after the Defendant hath once appeared in the Court by an Attorny there shall be no Essoin allowed But if he appear neither by an Attorny nor by Essoin then further Processe issues out against his Goods and Chattels viz. The Precept of Duces tecum and attachment and Distresse upon attachment infinite untill he do appear After the Processe executed the next Court the Plaintiff is to appear and file his Declaration to shew his cause of Action or matter of complaint in which must be shewn who complaineth and against whom for what matter how and in what manner the Action grew between the parties and at what time and place the wrong was done and in conclusion he must aver and profer to prove his Suit and shew the damage he hath sustained by the wrong done unto him Speciall care ought to be had that it be drawn in manner and form yet by the Statute of 36 E. 3. cap. 15. A Declaration shall be good if it have matter of substance though the terms he not apt however to avoid doubts and that the Attornies may not depend altogether upon uncertainties let them be diligent in taking right and full instructions from their Clyents and inform themselves of every puntilio which may be materially incident to the case that so they may know what manner of Action is most proper to be brought on the behalf of their Clyents In some cases manner and form is chiefly to be looked at but in other some not altogether so materiall As if an Action of debt be brought of the sale of a Horse for five pounds where the bargain was for two horses the Defendant pleads that he oweth him nothing in manner and form the Jury ought to find for the Defendant for that that the bargaine was for two horses for five pounds fo manner and form there is materiall and parcell of the charge and so it is in every case where the Action varies from the bargain or speciall matter But if an Action of the case be brought by the Husband alone upon an Assumpsit to him by R. the Desendant saith he did not assume in manner and form and the Plaintiff gives in evidence of an Assumpsit made to his wife and his agreement to it afterwards this is good and manner and form is not materiall If an Action be brought before there is any cause of Action the Declaration is insufficient But if a Trespasse was done the fourth day of May and the Plaintiff declareth the same to be done the fifth or the first day of May when no trespasse was committed yet if upon evidence it salleth out that the Trespasse was done before the action brought it sufficeth 19 H. 6. 47. 5 E. 4 5. 21 E. 4. 66. And Littleton saith That the Jury may finde the Defendant guilty at another day then the Plaintiff supposeth for the Law of England respecteth more the effect and substance of the matter then every nicity of forme and circumstance Apices juris non sunt jura Note that in actions of debt upon Emisset for Wares for Money or other things lent upon an In simul computassent actions of Trespasse Battery or upon the case c. you are not tyed to lay the certaine day but you may lay it any time after the cause of action accrued If an action upon the case be brought upon an Assumpsit the Plaintiff must declare upon the whole promise made and not upon part of it else the Declaration is not good Mich. 22. Car. b. r. If there be words in a Declaration which have no signification the words shall be adjudged to be void words and shall not hurt the Declaration but the Declaration shall be taken as if those words were left out of the Declaration Hill 23. Car. B. R. Pasc 24. Car. B. r. A Declaration ought not to shew a thing by implication it must be set forth expressely If the Plaintiff do alter his Declaration after the Defendant hath pleaded to it the Defendant may alter his Plea For by the amendment of it it may be so altered in matter that it may require a different answer from what was sormerly pleaded and in that case if he should not amend his Plea he might be triced sor want of a good Plea Prac. reg fo 235. A Declaration is sometimes called a Count as Count in debt Kitch 281. Count in Trespasse Brit. cap. 26. Count in an Action of Trespasse upon the case for a slander Kitch 251. But a Count is more properly used in Reall than Personall Actions And a Declaration more applyed to Personall than Reall F N. B. 18. a. 60. D. N. 71. a. 191. c. 217. a. If after Processe executed the Plaintiff do not appear and file his Declaration and the Defendant doth appear upon such default the Plaintiff is non-suited and the Defendant may have Judgment and Execution for his costs In every case where the Plaintiff may have costs against the Defendant there if the Plaintiff be non-suit or a Verdict passe against him the Desendant shall have his costs as in Trespasse Debt Covenant by Specialty or upon Contract Detinue Accounts Actions upon the case or upon the Statute for personall wrongs 23 H. 8. cap. 15. Administrators nor Executors shall not pay any costs neither upon Non-suit or Verdict because their Actions are brought upon Debts or Contracts not made between them and the Defendants But if they bring Actions for things done to themselves as for the taking away of goods from them c. and they be Non suit or Verdict passe against them in this case they shall pay costs After the Plaintiff hath appeared and Declaration filed upon the appearance of the Defendant Emparlance is to be entered Emparlance is when the Defendant being to answer the Suit or Action of the Plaintiff desireth some time of respite to advise himself the better what he shall answer being nothing else but a Continuance of a cause till a further day Now to demonstrate what the word Continuance signifieth it is after a Suit is begun and the Plaintiff hath declared he must continue his Suit from Court day to Court day or else the adverse party may take advantage of it and this is called a Continuance being but onely a proroguing of a Suit from time to time to keep it in being And this is by the Act or order of the Court and
some times by the agreement of the Attorneys of both parties The Rule or dies datus is when further day is given to the Plaintiff to put in his Declaration or to the Defendant to put in his answer the time given is usually fourteen dayes or more or lesse according to the order of the Court and the agreement of their Attorneys The next Court after the filing of the Declaration and Emparlance given the Defendant is to put in his answer which he pleadeth and saith in bar to avoid the Action of the Plaintiff either by consession and avoidage or denying the materiall parts thereof It must be legall full and perfect for a bad or insufficient plea is in Law as no Plea If Issue be not joyned upon the answer then the Plaintiff is to file his Replication to the answer of the Defendant which must affirme and pursue his Declaration Then the Defendant must put in his Rejoynder to the Plaintiffs Replication which must pursue and confirme his answer for every Rejoynder ought to have these two properties specially that is it ought to be a sufficient answer to the Replication and also to follow and enforce the matter of the Bar. If the parties be not at issue by reason of some new matter disclosed in the Defendants Rejoynder that requireth answer then may the Plaintiff Sur-rejoyn to the said Rejoynder if there be cause but it salleth out very seldome This Sur-rejoynder is a second defence of the Plaintiffs Declaration opposite to the Defendants Rejoynder Demurrer cometh of the Latine word Demorari to abide and therefore he who demurreth in Law is said he that abideth in Law moratur or demoratur in Lege when so ever the Counsell of the party is of opinion that the Declaration or Plea of the adverse party is insufficient in Law then he demurreth or abideth in Law and referreth the same to the Judgment of the Court. Now there is no Demurrer in Law but when it is joyned and therefore when a Demurrer is offered by the one party as is aforesaid the adverse party joyneth with him and thereupon the Demurrer is said to be joyned and then the case is by Councell of both sides argued When the Declaration Answer Replication c. are defective in respect of some circumstance of time or place c. it may be remedied by consent of the Court or parties or by a motion to the Steward Non sum informatus is a formall answer of course made by an Attorney whereby he is deemed to leave his Clyent undefended and Judgment passeth for the adverse party It is a failing to put in answer to the Declaration of the Plaintiff in any Action by the day assigned which if a man do Judgment shall passe against him because he saith nothing to the contrary To an Action of Debt upon Specialty Not his Deed To an Action of Debt for mony lent c. He owes nothing by the Country To a Bond for performance of Covenants upon an Indenture or Arbitrament Not his Deed or not guilty To an Action of case upon an Assumpsit He did not assume To an Action of Trespasse Not guilty To an Action of Assault and Battery and Slander Not guilty To a Contract without Deed the Plea is Payment or an Obligation made for the debt c. To an Obligation the Plea is Payment c. but to plead payment to an Obligation without Acquittance is no Plea For an Obligation or other matter in writing may not be discharged by any agreement by word but by writing unumquodque dissolvitur eo modo quo colligatur But to plea d payment to an Obligation with Condition though no Acquittance by writing it is good for the Condition is in nature of a Defeasance to the Obligation To an Action of debt He owes nothing by the Country or by the Law or Paid If the Action be brought against an Executor or Administrator the ordinary Plea is that he never was Executor or hath fully Administred c. If the Suit be upon a Deed or Contract without Deed That he was within age when he made the Deed or Contract If it be against a woman That she was Covert that is to say had a Husband when she made the Deed or Contract If upon an Arbitrament That there was no Arbitrament legally made or That he hath performed the Award If upon an Action of Trespasse Damage feasant That the Beasts came in by the default of the inclosure of the Plaintiff or That he hath little of Common there c If upon an Action brought for Rent That there is no rent in arrear c. To an Action of Detinue That he doth not detain the thing sued for A release or gift to him by the Plaintiff or That he did tender the thing sued for before Action brought That the De-fendant did deliver it to him as Pledge for ten shillings which he hath not paid c. To an Action of the case for Slander Not guilty or Justifie the words Cafe upon a Warranty That he did not warrant Upon a Bond or Bill plead Conditions performed by Threats Duresse Imprisonment c. Upon a Demise Not demised To Trespass Not guilty an Arbitrament Tender of amends before the Action brought c. If diverse men do a Trespasse and one makes a good accord this will discharge and be a Bar to all the rest Co. 9. 79. If Freehold be pleaded the Court in that case can proceed no further There are divers Pleas to Actions of Trespass some of one nature and some of another as justification c. If the Defendant have matter of Justification or excuse to plead he must be sure to plead it specially for if he plead the generall Issue viz. Not guilty it will be found against him But now by the late Act made the 23 of October 1650. The Defendant may plead the generall Issue of Not guilty or such like generall Plea and give the speciall matter in Evidence Where the Defendant is not constrained to plead a speciall Plea he may plead the generall Issue proper for the Action brought and give the speciall matter in Evidence For every Plea must be so framed that it may give a full answer to the matter set forth in the Declaration to wit all such as are materially to be answered unto If one be sued upon an Obligation he cannot be compelled to plead before he have Oyer of the Condition of the Obligation If an Action of Debt be brought for Rent upon an Indenture of Demise for years the Defendant may plead payment without shewing the Deeds for the Lease shall be intended to be in being at the time of the Action brought Trin. 24. Car. B. R. If an Obligation of an hundred pounds be made with Condition for payment of fifty pounds at a day and at the
that he is not guilty of the Trespasse aforesaid as the said J C. hath complained against him and of this he putteth himselfe upon the Countrey c. Bar by within-age ANd the said H C. comes and defends the injury when c. and saith that the said W B. his action aforesaid against him ought not to have for he saith that he at the time of the aforesaid writing obligatory was within the age of one and twenty years And this he is ready to verifie whereupon he demandeth judgement if the said W B. his action aforesaid against him ought to have c. Payment upon a Bill and a Release produced ANd the said I. S. comes and defends the injury when c. and saith that the said I W. ought not to have his action aforesaid against him the said I. S. for he saith that the said I W. after the making of the said Bill and the commencement of this suit that is to say the day year c at the Castle c. the said I W. did acknowledge and confesse himself to be fully satisfied and content of the said sum of 5 l in the said Bill mentioned and thereupon did acquit and release him the said I S. of and from all actions which the said I W. might have against him the aforesaid I S. by reason of the making of the aforesaid Bill and this he is ready to verifie whereupon he prayeth judgement if the said I VV. ought to have his action aforesaid against him c. Free-hlod ANd the said H S. comes and defends the sorce and injury when c. and saith that the said W B. his action aforesaid against him ought not to have or maintain because he saith that the Close aforesaid called T. at F. in the Declaration above mentioned in which the Trespasse aforesaid is supposed to be done is and at the time of the said trespasse supposed to be done is and was the onely sole free Tenement or Free-hold of the said H S. By reason whereof the said H S. did break and enter into the said Close called T. and the corn and grasse there growing and being with his feet did tread down and consume and other corne grasse and hay being in the said Close with his horses mares oxen and kine did eate tread down and consume continuing the said trespasse as in the Declaration is above specified as was lawfull and well pleased him so to do and this he is ready to verifie and prove whereupon he requires Judgement if the said W R. his Action aforesaid against him ought to have c. No action to cause one to render an account will lie in this Court ANd the said G F. in proper person comes and saith that the said C B. his said Action against the said G F. in this Court ought not to have or maintain for that the said C. B. in an Action to render an account c. wherefore the said G F. demandeth Judgement whether this Court will take cognizance of the said Action c. In arrest of Judgement AND the aforesaid R. M. saith that the verdict aforesaid given against him of the part of the said M S. ought not to stand or proceed because he saith that the Declaration aforesaid and the matter therein contained is not sufficient in Law to give and maintain the aforesaid Action against him by which he requires Judgement And that the aforesaid Plaint and verdict to be quashed and accounted nothing and that the aforesaid Plaintiffe may receive nothing by his Plaint and Verdict aforesaid c. Conditions performed AND the said W. G. cometh and defendeth the force and wrong when c. and desires to heare the said writing and it is read to him c. he desires also to heare the Condition of the said writing and it is read to him in these words that is to say The Condition of this Obligation c. recite the Condition which being read and heard the said W. G. saith that the said C G. his Action aforesaid against him ought not to have because he saith that the Articles in the Condition aforesaid above-mentioned were made at Y. aforesaid in c. day year c. aforesaid between the said C G. by the name of C G. of A. in the said County Gent. on the one party and the said W G. by the name of W G. of the same Town County Yeoman on the other party whose other part signed with the Seal of the said C G. the said W G. doth bring here in Court whose date is the same day and year first c. recite all the Articles throughout and the said W G. doth say that he hath performed and kept all and singular the Covenants Grants Articles Clauses Sentences and Agreements whatsoever in the said Articles specified on his part to be observed performed fulfilled and kept according to the form and effect of those Articles and this he is ready to maintain whereupon he prayes Judgements if the said C G. his action aforesaid against him ought to have c. Replication ANd the said C G. saith that he by any thing before aledged ought not to be debarred from having his said action against the said W G. because protesting that he the said W. G. hath not performed or kept any covenants grants articles clauses sentences or agreements in the said articles specified on his part to be performed or kept as the said W. G. above by pleading hath alledged for plea the said C G. saith that the said W G. did not c. recite the breach according to the form and effect of the same Articles and this he is ready to verifie whereupon he prayeth Judgment and his debt aforesaid together with his damages by occasion of detaining that debt to him to be adjudged c. Rejoynder ANd the said W G. saith that he did recite here that he did perform the breach the Plaintiff assigned according to the form and effect of thesaid Articles and of this he puts himselfe upon the Countrey and the said C G. likewise c. Detain he doth not ANd the said R. S. comes and defends the force and wrong when c. and saith he doth not detain from the said R. L. the chattels aforesaid nor any parcel thereof in manner as the said R. L. hath above declared against him and of this he putteth himselfe upon the Countrey c. Bar by a generall acquittance WHen c. his action ought not to have c. because he saith that after the making of the Writing aforesaid that is to say the day yeare c. the Plaintiff by his certain bill of acquittance which the said Defendant signed with the seal of the said Plaintiff here in Court produceth the date whereof is the same day and year he acquitted and discharged him the said Defendant by name of c. of all actions plaints demands debts accompts and debares for
extended then it is otherwise and yet Quaere if the debt be forty pounds and nothing extended but a Lease for three yeares at five pounds a yeare or the like for then to that which remaineth the Elegit failes Hobert Rep. fo 58. If a Judgement be obtained against a man who thereupon sells his Land in whose hands soever the Land is it shall be lyable to satisfie that Judgement and to that end shall issue out a Scire Facias against the Terr-tenants If two Writs of Elegit be delivered to the Sheriffe hoth at one time the Sheriffe is to exend the moiety of all the Lands and shall give the moiety to the more ancient debt and then he ought to extend a moity of the other moiety and deliver it to the other for he cannot deliver a moiety of all the lands to one and the other moiety to the other See Attorneys Academy 109. Severall Elegits may issue into severall Counties where the Land lies If a man doth pray to have an Elegit to have the moiety of the Defendants Lands in Execution and the Sheriffe returned that he had no Lands whereupon he prayed a Capias to arrest the party but the Court would not grant it but if the Conusee c. would tarry till Lands did come to the Defendant or goods then c. But now he could not have a Capias nor a Fieri Facias And the causes that the entery in the Roll is that he hath chosen his Execution of the moiety of his Lands the which he must stand to because it is an Execution in the superlative Mich. 30 E. 3. 24. Capias ad Satisfaciendum what it is IT is a Writ by the Statute after Judgement lying where a man recovereth in an Action personall as Debt or Damages or Detinue and he against whom the Debt is recovered and hath no Lands or Tenements nor sufficient goods whereof the debt may be levyed In this case he that recovereth shall have this Writ to the Sheriffe commanding him that he take the body of him against whom the debt is recovered and he shall be imprisoned untill satisfaction be made to the recoverer And the Sheriffe must keepe him in salva et arcta custodia unlesse he intend to pay the debt himselfe For if a Prisoner be taken upon an Execution and shall afterwards let him goe at liberty before the Debt be satisfied c. The Creditor may have either an Action of Debt or an Action upon the Case against the Sheriffe and so recover his debt Fitz. 93. a. c. A man shall not have a Capias ad satisfaciend but where Capias lyeth in the Originall 11 H. 9. 18. vide Co 3. part Sir William Herbets Case 8 H. 6. 9. 22 Ed. 4. 22. Upon this Writ the Sheriffe can take nothing but the body of the Defendant for the Writ is to do no more but to take his body and to detaine him in prison till he hath satisfied the debt Co. 5. 8. When a man is in the custody of the Sheriffe by processe of Law and afterwards another Writ is delivered to him to arrest him who is in his custody presently he is in his custody by force of the second Writ by judgement of Law although he doe not actually arrest him for to what purpose shall he arrest him who is and was before in his custody Et lex non praecipit inutilia quia inutilis labor stultus And the words of the Capias ad satisfac are not onely quod capiat c. but quod salvo custodiat c. Ita quod habcat corpus c. So that although he cannot take him who he hath in his keeping yet he may safely keep him and therewith agreeeth 7 H. 4. 30. If two men be bound joyntly and severally in an Obligation the one is sued condemned and taken in Execution yet the other may not goe scot-free for hee may be likewise sued and taken in Execution untill the Plaintiffe be satisfied of his entire debt Coo. 5. 86. But if the Creditor be satisfied by the first that was in Execution the other may plead this satisfaction and be discharged 29 H. 8. tit Execut. b. 132. A woman recovering damages in a Writ of Dower she cannot have Execution of these damages recovered by a Capias ad satisfaciendum because the Capias was not in the Originall 11 H. 7. fol. 5. 2 H. 7. fol. 7. If a man be condemned in an Action of Debt and the Sheriffe hath him in Execution by a Capias ad satisfac by arresting him although the Sheriff do not return the Writ an Action of false Imprisonment is not to be brought against the Sheriffe for not making return of the Writ for the writ of Capias ad satisfca is not as other Capias that is So that you have his body before c. For in every Capias ad satisfoc the Judgement is given before and it is but to take Execution of the partie in which no answer nor return availeth Pasch 21 H. 7. fo 13. If one be in Execution by his body and the party doth release unto him all actions suits and debts he shall not have an Elegit nor a Capias because the duty is extinct 26 H. 6. Execution 7. Capias pro Fine Capias Vtlegatum Capias ad Valentiam THere are other three Writs of Capias after Judgement viz. 1 Capias pro Fine 2 Capias Vtlegatum 3 Capias ad Valentiam 1. The Capias pro Fine is where one being fined by Judgement unto the Protector upon some offence committed against a Statute doth not discharge it according to the Judgement by this is his body taken and imprisoned till he pay the Fine F. N. B. 76. Coo. 11. 42. 8. 60. If the Plaintiffe sue an Elegit after the Defendant is taken for the Protectors Fine he shall goe at large for such Execution doth discharge the body 7 H 6. 6. and 7. So if he sue by Fieri facias 18 E. 3. Execution 54. Yet upon Nihil returned he may have a Capias c. If the Defendant be taken upon a Capias pro Fine in Trespass and the Plaintiff prays that he may remain in prison for his Execution the Plaintiff not satisfied shall have an Execution afterwards So if one pray an Elegit of Lands and nothing is returned but a Rent he shall have an Elegit of the same 47 E. 3. Execution 41. See F. N. B. 246. Stat. 32 Hen. 8. Cap. 5. 2 Cap. Vtleg is a writ of Exec. after judgment of the Coroner of the county into which the Exigent Promation issued which lyeth against him that is outlawed by the which the Sheriffe upon the receipt thereof apprehendeth the party outlawed for not appearing upon the Exigent and keepeth him in salva custodia viz. in safe custody If a Capias utlegatum issueth
no such promise within six yeares ibid. Never Executor 134 Fully administred and Replication ibid. Not guilty 135 Bar by which in age ibid. Payment upon a Bill and a Release produced ibid. Free-hold 136 No action to cause one to render an accompt will lie in this Court ibid. In arrest of Judgment ibid. Conditions performed and Replication 137 138 Rejoynder ibid. Detain he doth not ibid. Bar by a generall acquittance and replication ibid. Justification of scandalous words 139 Tender of amends in Replevin ibid. Part of the debt paid the residue tendered before suit and refused and Replication 140 141 Not his Deed 141 By threats and Replication ibid. and 142 By hardnesse of imprisonment and Replication ibid. The assault made by the Plaintiff and Replication 143 The Defendant pleadeth the Plaintiff within age to bring his Action and should have brought it by Guardian and not by Attorney 144 To a trespasse in walking not guilty and as to the residue of the trespas tender of amends and Replication and Rejoynder 144 145 Misnomer in Baptism pleaded in abatement of the writ of Justicies 146 Plea in abatement for that the Plaintiff hath one name in the writ and another in the Declaration ibid. The Defendant justifies for horse meat not satisfied in answer to a Declaration in trover for the same horse 147 The Defendant plead leaves and liberty granted to him by the Plaintiff to enter and feed his cattle 148 The Defendant justifies in replevin the taking of the cattle for rent in arrear 149 The Defendant saith that the goods were taken as a pawn or pledge for money lent 150 Replication that he took them injuria sua propria without such a cause 151 Concord in assault and battery ibid. Replication No such concord or agreement made 152 The Defendant saith that as to the taking of the Oxe that he tooke it by the name of an Herriot ibid. Justification in trespasse for want of reparation of the hedges by the Plaintiffe 153 The Defendant justifies upon a Replevin the taking of the Cattel doing damage-feasant 154 Misnomer in the writ of Justicies ibid. Non cepit to a Replevin 155 Poverty ibid. Demurrer ibid. Joyning in Demurrer 156 Presentment in a Leet of petty Treason 342 Presentment of felony for burning a house 343 Presentment of a Felon ibid. Presentment of an Accessary ibid. Presentments in Court-Baron 375 The finding of the death of a Tenant and of a Surrender made to the use of his will with an admission of the Tenant according to the will ibid. The finding of the death of a Tenant 376 Pains found and set upon tenants for want of suit of Court ibid. 377 The presentment of a Surrender made out of Court into tenants hands with the admission of the tenant accordingly 377 The finding of a Surrender made into tenants hands to the use of a mans will 378 The finding of the death of a tenant and of the lands and that the youngest son is next heir according to the custom c. with his admission ibid. The finding of a sale made of Freehold lands with a distresse to the Bayliffe to distrain for want of taking it up 379 The acknowledgement in the Court of a Legacy paid ibid. A presentment of a Surrender made out of Court with the admission of the tenant 380 A presentment made in Court of an agreement made between the Son and his mother touching her Dower and the mothers release of her Dower 381 A pain set for an incroachment ibid. A pain set for the amending of the same ibid. A presentment for an offence done and a charge to the Jury to enquire and further day given for giving their Verdict 382 R REplevin 39 132 alias Repl. 40 Plures Repl. ibid. Return of a Tolt 43 Return of a Recordare fac Lo. 58 59 of a Pone 59 60 of a writ of False judgment 61 62 63 of an Accedeas ad curiam 65 66 of a Writ for the Election of a Coroner after the death of another 66 of an Exigent 66 67 68 of a Proclamation 69 of a Non est inventus 197 of a Cepi corpus in the Common Pleas ibid. of a Cepi corpus in the Vpper-Bench ibid. of a Cepi corpus and Non est inventus ibid. of a Cepi corpus and Languidus in prisona 198 of a Mandavi Ballivo libertatatis where the Bayliff makes no returne of the Sheriffs warrant or where he makes an insufficient return 198 and also where he returneth to the Sheriffe he hath taken the body and the like in case the Bayliffe returneth a Languidus in prisona or as he shall certified the Sheriff by his returne ibid. of a Scire facias where a Scire facias is returned ibid. of a Nihil to a Scire facias ibid. of Scire facias for one and Nihil for the other 199 of an Attachment and Proclamation in Chancery ibid. A Nihil returned of a Venire facias upon an Indictment presentment or information and summons returned of the like ibid. The Return of a Distringas nuper vic or Balliv ibid. of a Venire facias jur 200 of a Distringas or Hab. corp Jur. ibid. of an Exigent where one bringeth a Supersed one rendereth himselfe the other appeareth not ibid. of a Proclamation 201 of an Allocat ibid. of a Tarde ibid. of a Hab. corp where the Defendant was taken by a former Sheriff 202 of a Pone ibid. of a Scire fac for the release of Prisoners ibid. of Nihil to a Scire fac against the heir and ter-tenants ibid. of a Summons in Dower ibid. of a Cap. in manus in Dower 203 of a Summons upon an originall against an heir ibid. of a Habere facias possessionem Cap. where judgement is signed with costs ibid. of a Liberate out of Chancery 204 of an Acced ad cur ibid. of a Re. fa. lo. ibid. averia elongat and Cepi corp for damages 205 of a Rescous ibid. of a Devastavit 228 of a Nulla bona Devastavit by inquisition ibid. of a Fieri fac 229 of a Fieri fac where part of the debt is levied and for the residue a Nulla bona 230 another of a Fi. fa. ibid. of a writ where the Sheriffe dieth after execution thereof and so returned prout indorsat by the present Sheriffe ibid. of an Elegit where lands are in the Kings hands 231 of an Extent in the Exchequer 232 of a Scire fac against the heir and ter-tenants where notice is given 234 of a summons in Dower 235 Records upon a writ of False judgement and Accedeas ad curiam 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 Recognizance of a Coroner to binde witnesse to appear at the next assizes 290 Release of Lands made in a Court Baron 388 S SCire facias post diem annum 47 against an Executor after Judgement against the Testator ibid. after marriage 48 Subpoena or a Warrant to
is aliorum negotiorum gestor for qui per alium facit per seipsum facere videtar likewise these Statutes following do institute Attorneys in the County Court viz. 6 E. 1. cap. 8. 20 H. 3. cap. 10. c. F. N. B. 156. I could instance many more but I hope these are sufficient to stop the black mouth of a scurrilous Antagonist In their practice they ought to be honest and just according to their office and oath not exciting men to Suits especially such as are forrain and illegall nor for little offences and small debts nor voluntarily argenti gratia delay their Clyents nor demand any sums of mony for the prosecution of the Action otherwise then is allowed by the Court. Of Bayliffs A Bayliff is a Servant or Minister of the Law and by consequence a Servant to the party at whose Suit he is to distraine the goods of any one Therefore he ought to be true faithfull and vigilant in levying of Distresses he ought not to be exoculated with common rurall bribes as too many of them are His office is thus described by Fleta Balivus esse debet in verbo verax in opere diligens fidelis ac pro diserto appruatore cognitus plegiatus clericus qui de communioribus legibus pro tanto officio sufficienter se cognoscat Et qui sit ita justus quod ob vindictam seu cupiditatem non querat versus aliquos c. He is to be contented with his wages and fees allowed him which are certain and known and as I have described particularly being usually paid if he take more then he ought or commit any error in the Execution of his Office contrary to the tenure of his Precept then is he to forfeit forty shillings and to be convicted thereof by the examinations of the Justices of Peace or any of them 14 E. 3. cap. 9. And the Sheriff ought not by his oath to have any Bayliff but such as he will answer for and such as be true and sufficient men in the County and make each Bayliff take an oath for the true execution of his office but such things are now not taken notice of And by the Statute of 27 Eliz. cap. no Bayliff or other person ought to take a Distresse nor to execute any Processe untill he be sworn but now common experience and practice at this day bears testimony to the contrary Alfred once King of England hanged Judge Arnold for saving a Bayliff from death who had robbed the people by Distresse and for extorting of Fees If the like Law were executed upon some of our grand Malefactors it would make the Remainder more honest What Actions may be brought in this Court HAving precipitated my self thus far before I enter upon the Proceedings of the Court I will demonstrate the grounds and cause of Proceedings and that is Actions which is the form of a Suit given by Law to recover a mans right or actio nihil aliud est quam jus prosequendi in judicio quod sibi debetur Therefore what Actions will hold in this Court take as followes All Actions of debt either upon an account made by the parties for wages after a hire sums of mony owing or due from one man to another whether by writings or otherwise it is grounded sometimes by writing as an Obligation Bill Covenant or other especialty sometimes without writing as an Arbitrament Rent mony lent Parol Contracts or the like All Actions of Detinue Trover and Conversion deceit upon a Warranty a Delivery Nusance Case for scandalous words case upon Assumpsits and other Actions of the case as for a Dog killing Cattell abusing a Distresse spoyling my Goods c. Actions of Trespass Assault and Battery c. All these Actions would afford very much matter to treat of at large but least this Treatise should swell beyond its limits I will refer you to the reading Fitzherberts Natura brevium which doth learnedly treat of the nature of all Actions that lye in any Court of Judicature Within what time Actions must be brought ALL Actions of debt grounded upon any lending or contract as Book-debt without especialty and for Rents in arrear all Actions of Trespasse quare clausum fregit Actions of Trespasse Trover Detinue and Replevin for taking away Goods and Chattels Actions of account all Actions of the case except Actions for Slander which shall be sued must be commenced and brought within six years after the cause of such Action or Suit accrued if the Plaintiff be then of full age discovert compos mentis at Liberty out of Prison and in England otherwise within such time after he becomes so and not after All Actions of Trespasse for Assault Menace Battery wounding and imprisonment within four years after the cause of Action and not after All Actions of the case for scandalous words within two years next after the words spoken and not after Who may bring Actions and who not IDiots mad men or such as have lucida intervalla such as are deaf and dumbe or any other man woman or child except persons disabled by Law being wronged may bring the proper Action appointed for remedy in that case and all or any of these wronging others may be sued And if an Idiot sue or be sued he must doe it in person An Infant must sue by Prochein amy and being sued must defend by Guardian A Feme covert cannot sue but with her Husband An outlawed person is disabled to sue any Action against any man in any Court of Law or Equity yet as Executor he may sue because it is not in his own right but in trust for another but any man may sue him by Coo. Sup. Litt. 128. A man that is attainted in a Praemunire may not sue in any Action Idem 129. And a man that is a convict recusant is disabled so long as he so continues No Barretor can maintain any Action in this Court nor have Judgment unlesse it be required by all the Suitors West 1. cap. 3. But note all these disabilities remain during the continuation of the same impediment Of Pledges in this Court PLedges are absolute except it be for Forrainers or such as live out of the County or out of the Jurisdiction of the Court or such as are unmarried that have no goods distrainable and it is if these be Plaintiffs but if the Defendant should non-suit the Plaintiff and have Judgment against the Plaintiff and his Pledges I never yet saw the forme of the Judiciall Precept that ever issued out to levy the costs upon the Pledges goods Of the Proceedings in the Court BEcause I would not have the Country and young Practisers ignorant of the Proceedings in the Court which is the life of practice I thought it necessary to make an Abridgment of the terms of Law now used in the Proceedings And first of Appearance because it is the first thing done after goods attached The first thing the
Eliz. Co. B. adjudged If a Beast be unruly in the pound and is like to leap over the pound it seemes the distrainer cannot justifie the tying him to the pound nor the fettering of him Broo. Trespasse 250. 27 Ass pl. 64. None shall distrain wrongfully upon the penalties provided upon the Statute of Marlb West 1. 16. 3 E. 1. None shall procure any to distrain another to make him appear at the County Court or any other inferiour Court on purpose to vex him and put him to charge and trouble on pain to make Fine to the Lord Protector and to pay the party grieved trebble damages West 1. 36. 13. E. 1. An Axe that is in a mans hand cutting of wood nor goods that are impounded and in the custody of the Law cannot be distrained being distrained already Damage-feasant If one distrain my Cattell or Goods without any cause or colour that is not good and just or if a man having distrained my goods will not tell me requiring it and offering to give satisfaction for what cause he distrained them or if having cause to distrain he do distrain Beasts not distrainable as Beasts of the Plough or Sheep or if having distrained Beasts distrainable he afterward abuse them as if being a Horse or an Oxe he work it or being unruly he setter it or lay it so as it be thereby hurt or if he put the Distresse in an unknown place that I cannot tell how to come to it to feed it or if he take them out of the County and put them into a Pound in another County or if he distrain them in a place not distrainable In all these cases I may have an Action of Trespasse against him Co. 8. 147. Doct. St. 112. F. N. B. 47. What goods may be taken upon an Execution EXecution is a Judiciall Precept issuing out after Judgment properly called a Fieri facias and lyeth where a man hath recovered in any Action lying in this Court either by default or Verdict then he that hath recovered may have this Precept commanding the Bayliff to levy the monies so recovered of the Goods and Chattells of the Defendant and to bring it into the Court that the party Plaintiff may have it The Bailiff may by vertue of this precept or warrant after Judgement distraine the Defendants goods and detaine the distresse in his hands in safegard till the Defendant hath satisfied the Plaintiff of the condemnation 22 Ass 72. F. N. B. 165. and 4 H. 6. fol. 17. Action The Bailiff upon this precept is to do his utmost endeavour to levy the Money upon the Goods and Chattels of the Defendant and for that purpose to enquire and search if he can finde out any Goods and Chattels of his whereof Execution may be made and it will be wisedome in the Plaintiff to make a diligent search to see if he can finde out any thing to be taken hold of and if he can discover any to direct the Bayliff to it who ex officio is to take it and to sell it and if he cannot sell it he is to return it so and thereupon a Precept called a Venditioni exponas shall be sent to the Bayliff to force him to sell it and pay the Plaintiff Goods taken in Execution must be praised and Execution made of them 27. Ass 72. Where erroneous Judgment is given the Officer which doth the Execution is excused 22. Ass 64. Plowden 194. But the contray if Judgment be given that is void or voidable for where Judgment and Execution is of a thing whereof they have no Jurisdiction there Trespasse lyes against the Officer for executing it but if Judgment be there but erroneous and so void false Judgment lyes and no Trespasse against the Officers Plowdens com 394. If after Judgment a man doth sell his goods to defraud me of my Execution and neverthelesse taketh the profits of them if it be so found I may have Execution of the goods sold by fraud 43 E. 3. fo 2. 22. Ass 72. 50 E. 3. If the Bayliff hath a Fieri facias against a man and before Execution he payeth the mony in this case he cannot do Execution after if he do an Action of Trespasse lyeth against him B. R. pach 12 Car. If the Sheriff open or break any House to do Execution at the Suit of a common person the Execution is good but the party whose House is broken may have an Action of Trespasse against him for the breaking of the House Co. 5. 93. 3. If the Sheriff levy mony upon an Execution and giveth it to the Plaintiff though he never make any return to the Court it is good enough Co. 5. 90. 4. 67. 11. 40. 20 H. 6. 24. 4. If a man hath a Judgment in this Court against the Plaintiff or the Defendant and the Execution is deferred in favour of him the party grieved may have a Writ de executione Judicii from above to hasten it F. N. B. 120. This Writ de executione Judicii is directed to the Sheriff in whose county the execution ought to be done if he will not doe Execution the Complainant shall have an Alias and a Plures with this clause in the Writ of Plures or signifie unto us the cause why c. And if he do not Execution upon this Writ or return not some reasonable cause wherefore he delayes the Execution the party shall have an Attachment against the Sheriff returnable into the Upper Bench or Common Pleas and must be directed to the Coroners returnable as abovesaid to answer c. Goods pawned shall not be taken upon Execution for the debt of him who pawned them during the time they are pawned 24 H. 8. Pledg 28. 4 E. 6. Distresse 75. By Fieri facias or Levari faoias the Bayliff cannot break the door or chest to take goods in Execution for if he do Trespasse lyes against him for the breaking onely and not for taking the goods in Execution 18 E. 4. fo 4. 13 E. 4. fo 9. by Choke notwithstanding 8 E. 2. tit Executors 152. to the contrary If a man letteth to farm by the year Oxen or Cattel and after the Lessee for years is condemned in an Action of debt these Cattell and Oxen demised during the term cannot nor shall not be taken in Execution for this debt 22 E. 4. fo 10. A Bayliff cannot pull the latch to open the door if it be shut to make a Distresse Co. 5. 91. 93. Dyer 67. 224. But if the out door of the House be open the Sheriff may go into the House and take any thing these lyable to Execution and being come in at the open door it seemes he may break open any of the inner doors 18 E. 4. 4. Co. 5. 90. Co. 4. 74. Of the Replevin CAttell being distrained for Rent Damage-feasant c. the Owner of the Cattell must goe to the County Clark or some one of the Deputies appointed in the County for the
granting out Replevins to have a Replevin directed to the Bayliffs to Replevie them and the party must be bound in an Obligation to the Sheriff to prosecute his Action against him or them that did take the Cattell and to make return of the same Cattell to the Distrainer if he by Justification or Avowry do recover And if he pursue it not or if it be found or judged against him then he that took the Distresse shall have again the Distresse and that is called the return of the Beasts and he shall have in such case a Writ from above de Returno habendo This Replevin may be returned out of the County into the Common Pleas by a Writ of Recordare If the goods cannot be taken by the first Replevin then issueth forth an Alias then a Plures then a Toties quoties and if none of these will do then a Withernam The suing of a Withernam is after this manner If the Bayliff return at the next County upon the Toties quoties that he cannot Replevie the Cattell because they are esloyned or that he cannot have view of the Cattell then the Sheriff ought to make inquirie if it be true which is returned and if it be so sound out he shall make a Precept to the Bayliff in the nature of a Withernam to take as many Cattell of the other party And if the Bayliff upon the Withernam thus awarded return that the other party hath not any thing c. he shall have an Alias and Plures and so ad infinitum and hath no other remedy in this Court Note that Cattell taken in Withernam ad valentiam that is to the value of the Cattell that were first distrained and so detained that the Sheriff cannot execute the Replevin brought for them is to be understood not of the number of the Cattell first distrained but according to their full worth and value For otherwise he that bringeth the Replevin and Withernam will he deprived of his satisfaction he ought to have in case the Distresse were not lawfully taken But now to return again to the Replevin if the thing distrained be put by the Distrainer in a place where the Sheriff cannot come at them to make a Replevie he may take Posse comitatus viz. the power of the County and after demand of the Chattels he may beat down the door or place where they are to take them and the Owner of the goods shall recover double for his losse what ever it be The Sheriff upon complaint made to him upon taking of Cattell may command his Bayliff by word to make a Replevin of them and it is as good as though he had made his Precept to the Bayliff Fitz. 6. 9. He that hath the Replevin must have either a generall or speciall property in the thing as of goods pledged or the like and it must be in him at the time of the taking or otherwise he cannot have or maintain the Replevin for them Diverse mens Cattell being taken they may not joyn in one Replevin but must have severall Replevins A Replevin ought to be certain in setting forth the number and kinds of the Cattell distrained otherwise it is not good because if it be not certain the Sheriff cannot tell how to make deliverance of the Cattell because he knows not particularly what the Cattell are that were distrained Trin. 23. Car. B. R. If a man taketh and impoundeth goods a Replevin may be of more Cattell than were impounded for if a man distrain Cows or Ewes c. and they have in that Pound Calves or Lambs the Plaintiff shall have a Replevin for them all and by Lit. it was adjudged Mich. 8. E. 3. That if a man distraineth and impoundeth a Sow great with pigs in the Pound the Owner shall have a Replevin for the Sow and the Pigs If Cattell be distrained and a Replevin is sued the Defendant doth avow for taking of them Damage-feasant or for Rents Customs and Services and are at issue and after the Plaintiff is non-suit or otherwise barred he shall lose his costs and damages by the stat of 7 H. 6. cap. 5. but by the stat 21 H. 8. it is clear Pasch 14. Mar. Dyer 141. If a man by his Deed grant a Rent with clause of Distresse and grant further that he shall keep the goods distrained against Gages and Pledges untill the rent be paid yet shall the Sheriff replevie the goods distrained for it is against the nature of such a Distresse to be irrepleviable and by such an intention the current of Replevins should be overthrown to the hindrance of the Common wealth 31 E. 3. Gage deliver 5. Co. Inst 1. fo 145. b. If in this case the taker of the Cattell justifie the taking as in his Freehold then this Court can proceed no further therein but the cause must be removed by a Writ out of the Chancery called a Recordare facias loquelam directed to the Sheriff returnable the next term following either into the Court of upper Bench or Common Pleas to which the party pleaseth but they are more properly belonging to the Court of Common Pleas and this Writ must be openly read and allowed in the same Court to the end that notice may be given thereof to the Plaintiff in the Replevin that he may appear at the day of the return thereof and declare against the taker of his Cattell otherwise the taker will have a retur habend aver and put him to sue forth the second deliverance which is a great disadvantage to the Plaintiff If a Replevin be sued out and the Defendant doth avow for taking of them Damage-feasant or for rents customs or services and are at issue and after the Plaintiff is Non-suit or otherwise barred he shall lose his costs and damages Stat. 7 H. 6. cap. 5. 21 H. 8. Pasc 4. Maria Dyer 141. Of the Processe of this Court THe Process of this Court are either originall issuing out before Judgment Or Judiciall issuing out after Judgment Originall is a Distringas or County Warrant c. Judiciall Process is onely a Fieri facias or Execution directed to the Bayliff to levy the debt or damages and cost of Suit recovered of the goods of the Desendant or of the Plaintiff if he be non-suited The Originall Processe viz. Distringas or County Warrant is a Precept issuing out for a debt under forty shillings It s form is as followeth Y. ss I. B. Esq Sheriff of the said County to all and singular my Bayliffs within the said County and their Deputies greeting Commanding you and every of you that you distrain R. B. by his goods and chattels within the said County so that he be and appear at the next County Court to be holden at the Castle of Y. on munday the 10 of J. to answer unto S. D. in an Action of debt And that you then and there certifie your doings herein Sealed with the Seal of my Office the sixteenth
facias is onely against the goods as Leases for years or moveable goods as Corn Houshold stuffe Cattle Apparrel Money Plate c. and it ought to be sued out within the year after the Judgement Co. 3. 13. After a Fi. fa. a man may have an Elegit but on the contrary after the Elegit he cannot have a Fi. fa. because the Elegit is of a higher nature then the Fieri facias An Elegit is a Writ whereby the Plaintiff is to have Execution of the half of all the Defendants lands and chattels except Oxen and beasts of the Plough till the debt and damages be wholly levied and paid to him and during the term he is tenant by Elegit Terms of the Law The Proceedings upon the Writ of False Judgement YOu must call of the County Clerk for a return of the Writ together with the whole Record of all the proceedings from the original and beginning of the cause in the County Court The Writ being returned you must assign Errors and take Copies thereof and thereupon sue forth a Scire facias to the Plaintiff in the Action to hear Errors To which the Plaintiff may appear and plead the common plea which is that The action nor proceedings in the County Court are in nothing erroneous Then must the Desendant endeavor to get a Rule or day given for the arguing of the same Errors But if the Defendant doth delay and doth not call for a return of the writ nor proceed then the Plaintiff may sue forth another Scire facias against the Defendant to shew cause why he should not have Execution upon the Judgement had in the County Court And if at the Return of the second Scire Facias Errors be not assigned then Judgment is confirmed in that Court into which the Writ is returnable If Errors be found and allowed to be sufficient and good then is the said Judgment to be reversed and made void But if Errors be not found good then is the Judgment in the County Court affirmed and further costs for delay of Execution allowed to the Plaintiff who may presently sue forth Execution out of that Court into which the Writ was returned against the Defendant Note that if the Judgment be reversed and made void yet notwithstanding it takes not away the Plaintiffs cause of action for he may commence a new action against the Desendant for the same cause The same proceedings are upon an Accedeas ad Curiam See the Record upon it The manner and form of drawing up Records upon a Writ of False Judgment and Accedeas ad Curiam THe Sheriff is commanded that if A. B. shall secure the same Sheriff to prosecute his plaint then in his full County he cause to be recorded the plaint which was in the same County by writ of his Highnesse the Lord Protector c. between W. B. and the same A. B. in a certain Trespasse upon the case to the same W. B. by the same A. B. done c. And whereupon the same A. B. did complain that False Judgment was done to him in the same County and that he should have here at this day that is to say Octab. pur under his Seal and by four lawfull Knights of the same County who should be present at the Record and that he should have here the Summoners the names of the four Knights this Writ and another Writ And now here at this day came aswell the same A. B. by Simon Dunn his Attorney as the said W. B. summoned c. by Phit Prince his Attorney And the Sheriff to wit Geo. Mar. Esquire now returneth that the same A. B. had found to the same Sheriff Pledges to prosecute his said Writ to wit Iohn Doo and Ric Roo And that he by vertue of that Writ to him directed at his County held at the Castle of York in the County asoresaid the 10. day of May in the year of our Lord 1657. made the same plaint to be recorded which was in the same County between the same A. B. and W. B. and the Record of the same plaint before the Justices here at this day under his seal and the seals of H. M. and four lawfull Knights of the same County hath ready of those who were present at the Record And that he summoned the same W. B. that he should be here at this day to hear the Record by R. S. and F. L. as by the same Writ to him it was commanded c. which said Record followeth in these words OLIVER Lord Protector c. To the Sheriff of York greeting W. B. hath requested that A. B. of C. in your County husbandman although the same W. B. be our true and faithfull subject and as our true and faithfull subject from the time of his nativity hitherto hath carried and behaved himselfe and of good name and same among many of our saithfull subjects was noted called and reputed notwithstanding the same A. B. not ignorant of the premisses the same W. B. unjustly to vex and him of his goods name fame and opinion whereof from his nativity to deprive conspurgate And the same W. B. into perturbation vexation and infamy amongst his neighbours and many other saithfull subjects and people of this Commonwealth to induce plain salse and scandalous words of the same W. B. at C. in the presence of many faithfull subjects and people of this Commonwealth said published and pronounced in these English words following to wit W. B. the same W. B. meaning hath stoln my horse By speaking publishing and pronouncing which same words the same W. B. not only in his good name and same is hurt but also in his doings and businesses with honest persons with whom the same W. B. in buying selling and lawfull bargaining before used is much prejudiced and made worse to the no little damage and losse of the same W. B. c. And therefore we command you that you hear the said Plaint and afterwards cause the same to be with-drawn that we hear no more clamour thereof for defect of Justice Witnesse c. Pleas held at the Castle of York in the County of York upon Monday the second day of June in the year of our Lord 1657. AT this Court W. B. complaineth of A. B. in a plea of Trespasse upon the case W. B. by P. P. his Attorney complaineth of A. B. in a plea of Trespasse upon the case for that to wit that whereas the same W. B. is a good true and faithfull subject of this Common-wealth of England from the time of his nativity hitherto hath carried and behaved himself and of good name same credit and reputation honestly with good and grave men as well his neighbours as other saithfull subjects of the said Cōmonwealth was had noted called and reputed without any falshood thest perjury selony deceit or stain of any other fault or hurtfull crime unspotted and untouched by the whole time aforesaid carried
plaint and in his executed and assigned from the beginning of the World until the day of the date of the said Bill and this c. if Judgement c. Replication THe Plaintiff saith that he ought not to be barred c. because he saith that the aforesaid Bill of acquittance is not his deed and this he prayeth c. Justification of scandalous Words ANd c. when c. and saith that the said G L. his action aforesaid against him ought not to have for that he saith that before the speaking of the pretended scandalous words in the said declaration mentioned that is to say the day year c. at c the said G L. one Wether-sheep to the value of 10 s of c. of the goods and chattels of the said H. A. in the said Declaration mentioned then and there being sound feloniously did steal take and carry away contrary to the publick peace By reason whereof the said P. G. afterwards that is to say the said day year c. at c. the pretended scandalous words in the said Declaration mentioned did say affirm and declare to the said G. L. that is to say thou meaning the said G. L. art a Thiefe and stole H. A.'s Sheep and this he is ready to verifie whereupon he demandeth Judgement if the said G L. his action aforesaid against him ought to have c. Tender of amends in Replevin AND the said H. saith c. the just taking of c. ought not to avow because he saith that after the aforesaid time of the taking of the Cattel aforesaid in the aforesaid place in which c. und before the day of the issuing forth of the precept of Replevin of him the said H. that is to say the day year c. aforesaid at W. aforesaid he the said H. offered 12 d. to pay the said W. and I. to the use of the said W. for the damage of the said W. which he sustained by occasion of the trespass aforesaid which the cattel aforesaid in the aforesaid two acres of Land made which said 12 d. were sufficient amends for the trespass aforesaid which the cattel aforesaid in the said two acres of Land made which said 12 d. the aforesaid W. and I. then and there wholly refused to receive of the said H. and this c. Part of the debt paid The residue tendred before Suit and refused ANd c. when c. and saith that the aforesaid I. G. ought not to have or maintain his said action against him because he saith that the said I. A. the day year c. before the beginning of this action well and faithfully paid to the said I. G. 20 s. part of the above mentioned debt in the said Declaration specified that is to say at B. aforesaid and within the jurisdiction of this Court And as to the five shillings six pence the residue of the debt in the said Declaration specified the said I. A. further saith that he afterwards that is to say the day year c. abovesaid before the commencement of this action at B. aforesaid tendred to the said I. G. the said five shillings six pence which said five shillings six pence the said I. G. then and there refused to accept of and this the said I. A. is ready to prove and demands Judgment of the Court if the said I. A. ought to have his said action against him c. Replication ANd the said I. G. as to the plea of the said I. A. as to the said 20 s. parcel of the debt aforesaid saith that he by any thing before alledged ought not to be barred from having his said action against him for he saith that the said I. A. did not pay the said twenty shillings to the said I. G. as the said I. A. above hath alledged and this he prayes may be inquired of by the Countrey and the said I. A. likewise c. And as the said plea of the said I. A as to the said 5 s. 6 d. residue of the said Debt and the said I. G. saith that the same plea of the said I. A. in manner and aforesaid pleaded and the matter therein contained is insufficient in the Law to bar the said I. G. from having his said action against the said I. A. and that he to the plea aforesaid in manner and form aforesaid pleaded needeth not nor is bound by the Law of the Land to answer whereupon for want of a sufficient plea in this behalf the said I. G. prayeth Judgment and the said 5 s. 6 d. residue of his debt aforesaid together with his damages by reason of the detaining of that debt to him to be adjudged c. Not his Deed. ANd c. when c. And saith that he ought not to be charged with the said debt by vertue of the writing aforesaid because he saith that the said writing is not his Deed. And of this he putteth himselfe upon the Countrey And the said A. likewise c. By threats ANd c. when c. And saith that the said A. ought not to have his said action against him because he saith that the said A. at the time of the making of the said writing at N. aforesaid did impose upon the said B. such so great threats of his life may ming of his body to be inflicted on him unless he would make and seal unto the said A. the said writing that he the said B. did then and there make unto the said A. the said writing for feare of those threats And this he is ready to aver whereupon he prayeth judgment if the said A. ought to have his said action against him c. Replication ANd the said A. saith he by any thing before alledged ought not to be barred from having his said action because he saith that the said B. at the time of the making of the said writing aforesaid was of his own power at large And did make to the said A. the said writing of his meer and voluntary will and not for fear of threats as the said B. hath above alledged And he prayeth that this may be inquired of by the Countrey And the said B. likewise c. By hardnesse of imprisonment ANd c. when c. And saith c. because he saith that at the time of making of the said writing he was imprisoned by the said A. and other of his Covin that is to say at N. aforesaid and there in prison detained until the same B. by force and hardnesse of that imprisonment had then and there made to the said A. the said writing And this he is ready to aver whereupon he prayeth Judgment c. Replication ANd the said A. saith that he c. because he saith that the said B. at the time of making of the said writing was of his own right at large and out of prison and did of his meer and
and shall be levyed by the Sheriffe See Dalton fo 25. b. Hee is also accountable to his Highnesse for and upon processe c. and is to gather up and to bring into his Highnesses Exchequer all Amerciaments and Fines which shall be set or assessed as a penalty upon the heads of offenders against his Highnesse in any of his Courts VVhich is to be understood of Amerciaments upon the Paintiffe or Demandant or upon the Tenant or Defendant in Actions reall or personall as if the Plaintiffe and Demandant be Non-suite or if Judgement be given against the Tenant or Defendant or upon the Plaintiff quia non est prosecutus or pro false clamore c. or upon the Mainpernors because the principall appears not c. In such case the Justices never assesse any amerciament but by the Stat. of Magna Charta Cap. 14. and Westminster 1. Cap. 18. the Amerciament ought to be assessed per pares And the Court in such cases enters Ideo in misericordia generall without taxing or assessing any summe in certain And then the Clark of the Warrants in the Common Place makes Estreats of these Amerciaments and delivers them to the Clarke of the Assizes within every Circuit to deliver unto the Coroners in every County to assesse the Amerciaments Dal. fo 27. a. His Highnesse shall have all Amerciaments Fines Issues and all Forfeitures or Recognizances lost or forfeited c. before any of his Judges or Justices in any of their Courts or Sessions but these must first be estreated into the Exchequer and from thence Processe must be awarded to the Sheriffe to levy the same to his Highnesse use 33 H. 8. c. 39. The Sheriffe ought not to take or seise the goods of any man arrested imprisoned or indicted for felony or for suspition thereof before the same person be duely convicted or attainted of the same felony viz. either by tryall confession or Utlarie and Judgement thereupon given or that the same goods be otherwise lawfully forfeited upon paine to forfeit the double value of those goods so taken to the party grieved By the Stat. 1 R. 3. c. 3. Yet lest the goods should be disorderly wasted or sold away the Sheriffe before the attainder of the Felon may take sureties that the goods be not imbezelled c. And for want of sureties the Sheriffe or other his Officers may seize them and deliver them to the Town by them safely to be kept Brook tit forfeit 44. Plow 68. But yet the Felon must have reasonable maintenance for himselfe and his Family untill he be convict and the remainder shall be to his Highnesse c. If the Felon flye the Sheriffe is to seize all his goods and chattels as also the profits of his Lands to his Highnesse use But yet by Coo. 5. 109. Plo. 262. the goods c. of a Fugitive are not forfeited untill the flying for felony be lawfully found upon Record either before the Coroner upon an Indictment Super visum corporis in case of the death of a man or by verdict upon his acquittall for although he be found not guilty upon his tryall yet shall he forseit his goods for his flying quia fatetur facinus qui judicium fugit and the Law will admit no reproof against this presumption And albeit the Jury which tryes him shall finde him not guilty and further that he did not flye yet the goods are forfeit by force of the finding of his flying before the Coroner And the Sheriffe presently after such flying found before the Coroner is to seize the goods and the profits of the Lands of such offenders See Fitz. Forf 32. Yet he that shall flye for felony shall not forfeit the goods or profits of his Lands which he had at the time of the Felony or flying but those onely which he had at the time of the Indictment or acquittall Coo. 5. 109. Fitz. Coron 296. 344. The Sheriffe is to seise to the use of his Highnesse the Goods and Chattels of him that killeth himselfe but he shall not forfeit his Lands Yet if an Infant a man Non compos mentis or a Lunatick killeth himself he forfeits nothing If a man be indicted for felony and absents himselfe so long as an Exigent is awarded against him they shall be accounted a flying in Law for which he shall sorseit all his goods although he shall be acquitted afterwards of the Felony And the Sheriffe may presently ex officio seise them to his Highnesse use Co. 5. 110. b. Stamf. 184. The Sheriffe or his Under-sheriffe shall receive all manner of VVrits at all times and in any place within the Shire without taking of any thing and shall make Warrants thereupon 2 Ed. 3. cap. 5. Cromp. 203. and shall be by him or his Bayliffs executed He may command his Under-sheriffe Bayliffe or other known Officer to execute them either by word or precept But if his mandate be to a man that is no known Officer to execute any Writ or Warrant he must either deliver the Writ it selfe or a precept in writing in his owne name and under the seale of his office otherwise an Action of false imprisonment will lye for the Arrest Lamb. 91. 21 H. 7. 23. a. But if a precept be made to a Bayliff and to a stranger or speciall Bayliffe Conjunctim divisim and is executed by the stranger onely it is good Lamb. 91. and Daltons office of Sheriffs 44 If a writ issue out from the Judges Justices or the Court he shall not stand capitulating or disputing their authority or validity of the Writ but ought to execute it Co. 6. 54. 9. 68. 10. 70. Dr. and Student 150. For he is obliged both by oath and office to execute all processe of Law and if a Capias be delivered to him without an Originall he shall execute it and is excusable in an action of false imprisonment For he being the Officer and Minister of the Court it is reasons adversary to punish him for executing the Mandates of the Court according to the Maxime Co. 10. 70. Quicunque jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est He that acts any thing by the mandate of the Judge seemeth that he acted not any thing fraudulently or amisse because he must needs obey But if the Court dilate it selfe beyond its jurisdiction in that case all the proceeds are Coram non judice and there an Action doth lye against the Sheriffe without any regard to the Precept or Processe for when he hath no jurisdiction he is no Judge and there is no necessity to obey him no more then a meere stranger and to backe it with the authority of a rule or axiome Extra terratorium jus dicente non paretur impune He that obeyeth in prescribing Lawes beyond his jurisdiction shall not escape unpunished Co. ibidem fo 57. a.
to the Sheriffe to take a party and to enquire what Lands and Tenements he had and the Sheriffe findes by Inquisition that he is seised of many Lands and continues possession in them and the Sheriffe do out me I may have an Action of Trespasse against him Winch. fol. 78. Capias utlegatum enquiras de bonis catallis is a Writ of the same nature with the precedent but that it giveth a further power to the Sheriffe over and besides the apprehension of his body to enquire also of his goods and chattels Minsh fo 111. b. Capias ad Valentiam Is a VVrit of Execution and lyeth where the Tenant is impleaded of certain lands and he voucheth to warranty another against whom the summons Ad Warrantizandum hath beene awarded and the Vouchee cometh not in at the day given Then if the Demandant recover against the Tenant he shall have this Writ against the Vouchee and shall recover so much in value of the Vouchees Lands if he have so much And if he have not so much then the Tenant shall have Execution by this Writ of so much Lands and Tenements as descend to him in Fee-simple or if he purchase afterwards the Tenant shall have against him a Re-summons and if he can say nothing he shall recover the value Old Natura Brevium fol. 161 162. Termes of the Law 45 46. Fieri Facias what it is AFIERI FACIAS is a judiciall Writ and lyeth for him that hath recovered in an Action of Debt or Damage directed to the Sheriffe commanding him to levie the debt or damages of the Defendants goods it must be brought within the yeare and day This Writ hath beginning from West 2. Cap. 18. Anno 13 E. 1. Old Nat. Br. fol. 150. See great diversity thereof in the Table of the Register Judiciall Ver. Fieri Facias The Sheriffe or Bayliffe ought to be very cautious in executing this VVrit For if the Goods or Lease which shall be taken be the Goods of a stranger though they be found in the possession of the Defendant Yet if it be found upon Tryall that the Defendant hath no property in those Goods or Chattels then the Sheriffe or Bayliffe that executed that Writ shall be a trespasser to the right owner of the Goods and shall recover damage to the value of the Goods so taken with costs of suite although the Officer hath delivered them to the Plaintiffe in Execution Dalton office of Sheriffes fol. 60. Therefore the safest course for the Sheriffe or Bayliffe is not to take any goods in Execution unlesse they plainly appeare to them to be the proper goods of the Defenfendant For the Officer is bound at his perill to take knowledge whose Goods they be Ibidem If a Fieri Facias be awarded for twenty pounds to the Sheriffe upon which he takes an entire Chattell and sells it for forty pounds and returns the Fieri Farias with the twenty pounds in Court he may detaine the surplusage untill the Defendant comes to demand it of him for he is not obliged to search out the Defendant but if a Fieri fac be awarded for 40 s. by force of which the Sheriff takes five Oxen every one at the value of five pounds and sels them all the Defendant may have an action of Trespasse against the Sheriff Noy fol. 59. Woodby against Coles c. Sale by the Sheriff upon a Fieri fac shall stand albeit the judgment afterwards was reversed and the Plaintiff in it restored to the value Dyer 363. 24. Coo. 8. 76. b. Mat. Mannings case Upon a Judgement against an Executor or Administrator the Plaintiffe cannot have a Capias ad satisfaciendum against the body but a Fieri facias de bonis Testatoris and if the Sheriffe returne a Devastavit then a Capias ad satisfaciendum against the body or a Fieri facias de bonis propriis And if there be two Executors and the Sheriff réturns a Devastavit against one of them and he dies the other shall not be charged for that Devastavit for the one shall not prejudice the other but a gift by one of them is good against the other A Scire facias after the year for damages recovered in waste and a Nihil returned he shall not have an Elegit untill the tenants be warned but he may have a Fieri fac without warning of them 4 E. 3. 23. Execution 99. Old N. B. 168. The Sheriff returned upon a Fieri fac mandavi ballivo who said that he had seized to the value but he could not finde buyers and because the Court cannot send to the Sheriff to have the money here as they might upon his own extent therefore they awarded a Writ to the Sheriff to levy the money of the lands and goods of the Bayliff to the value of that which he had seized the same Law is upon a seizure of an ancient Sheriff 5 E. 3. Execution 101. Fieri fac for damages recovered in waste upon a Lease for years it was returned that the Lessee had no goods but the remnant of the same Lease and it was holden that by Sicut alias that the Sheriff might sell the Lease as well as pots and pans in the Execution for the Fieri facias is de terris catallis of the Lands and Chattels c. 19 E. 3. Execution 148. A Fieri fac to the Sheriffe to levy the expences of the Knights of the Parliament the Sheriff may sell the Beasts of one of the Hundred for the whole or the beasts of any person he shall finde within the precinct 11 H. 4. 2. Avowry 52. The Sheriffe returned upon a Fieri fac that he had levied the money and that he had the same in Court whereas he had not the money at the day and then a new Sheriff is chosen and because it was upon Record that the old Sheriffe had levied the money a Scire facias issued forth against him to pay it and if he cannot or will not otherwise discharge and pay the money the party shall have a Fieri fac or an Elegit against the Sheriffe of his proper goods c. 9 E. 4. 50. Scire fac 2. Mich 10. Jac. Upon a motion at the bar it was resolved that an obligation to the Sheriff upon a Fieri facias for the payment of the money in Court was not void by the Statute of 23 H. 6. cap 10. For the first branch of that Statute is that he shall let to bayl by Writ or Bill c. which he could not do before as appeares 19 H. 6. 43. The second shewes the form of the bond c. The third contains a penalty that if the Sheriffe take an Obligation in any other form c. than is there prescribed that it shall be void so that upon consideration of all the branches together and upon their coherence and dependance one upon another it plainly appears that the said
to the prescription this shall be good by way of confirmation As a Court-Baron is incident to a Mannor so a Court of Pypowders is incident to a Fare and by the Grant of the Fare this doth passe and with this accords 19 H. 8. Brooks case fol. 2. placito 7. and Brook tit incidents placito 34. and not to be fevered from them neither by grant nor by reservation 2 3 Phil. and Mar. Dyer fol. 133 pla 80. the Plaintiffe in a Court of Pypowder doth count of a contract made in the last Fare before where no plaint was then begun nor any judgment of Amerciament of the Defendant then given and this was held a good Error in both by all the Justices of both Benches Mich. 42. and 43 Eliz. B. R. Co. 10 fo 73. in the case of the Marshalsea where Hall braught a Writ of Error against Jones to reverse a Judgment given against him in the Court of Pypowders of the Market in the City of Glocester for that that Hall had published slanderous words of him viz. Mr. Jones and his Clerk have by colour of his office extorted and gotten 300 l. per annum by unlawfull meanes for many years together above their ordinary fees for proving of Testaments and granting of Administrations the which judgement was reversed for two Errors viz. 1. Because words did not concern any matter touching the Market and therefore the Court had no jurisdiction of it but if one slander any with Trades and Merchandizeth in the Market in any thing which concernes his Trade there an action for this well lieth 2. It appeares in the Count that the words were spoken before the Market and not during the time of the Market for as this Court hath no jurisdiction but in matters concerning the Market so the same Court hath no jurisdiction for matters concerning the Market unlesse they were acted and done during the time of the Market Bracton lib. 5. fo 335. a. De brevi de recto 1. de diversitate divisione summonitionis It is there said per quindecim dies ante diem quo comparere debeat summonitio ought to be Et talis summonitio dici debeat legitima Si minus spatium contineat possit illigitimam judicari nisi ob causam legitimam minus tempus statuatur ut propter personas qui celerem habere debeant justitiam sicut sunt Mercatores quibus exhibetur justitia Pepoudrous by the Statute of 17 E. 4. capite 2. And in this Court no Steward or other Minister shall hold plea upon any action at the suit of any person unlesse the Plaintiffe or his Attorney in presence of the Defendant do sweare that the contract in the Declaration c. was had and made during the time of the Fare and within the jurisdiction of the Fare but this oath so taken shall not conclude the Defendant for pleading in abatement of the action and to the jurisdiction of the Court this by the Statute of 1 R. 3. cap. 6. is made perpetual in this principal case here the Defendant in the Court at Rochester was condemned in an action of debt for 300 l. upon a Bond and Contract formerly made and entered into and for this cause the judgment was erroneous Note that in this Court the Steward is Judge because there are no Suitors there neither can the Steward delegate a Deputy 6 E. 4. fol. 3. 7 E. 4. fol. 23. A TABLE OF THE PRINCIPALL MATTERS contained in the BOOKE A A Merciament in the County Court 6 How they are forfeited in Court-Leet and what shall be causes to amerce c. 313 Of Amerciament 314 Attorneys in the County Court 10 how qualified 11 Actions within what time they must be brought 12 Who may bring Actions and who not 13 Appearance what it is 14 Answer what 17 Accompts of the Sheriff with a particular of some usual charges or fees paid by him at the rendring of them up 224 225 Appeals 295 The Sheriff shal have Counter-rolls of Appeals c. 297 Accessaries who 326 Alehouse keepers 332 Assize of bread 333 B BAyliffs in the County Court 11 how qualified ibid. Burglary what 324 Bond taken by the Sheriffe upon a Fieri facias for the payment of money in Court not within the Stat. of 9 E. 4. 50. 185 Burning of houses or Barns 326 Bail what it is 212 Any person making a warrant c. without original processe upon examination c. shall be committed without bail 214 Such as are in Execution c. not to be bailed ibid. None to be bailed that are prohibited by the Statute of West 1. cap. 15. he cannot bail any suspect of felony as formerly ibid. The Sheriff cannot refuse to baile one bailable upon tender of sufficient sureties ibid. Traytors or Felons not bailable 215 In the Vpper Bench the baile not chargeable till default assigned in the principal c. ibid. The new rules concerning speciall bail ibid. and 216 Bridges decayes 328 Boundaries 330 Bloodshed 331 Barretors ibid. Brewers 333 Butchers 334 Breaking of Pownds 338 Beadel why so called 347 Bastard may not inherit 351 C COunty Court when instituted 3 Now the Sheriffs Court ibid. By whom first exercised ibid. What action may be brought in it 4 5 6 12 The time when it is to be holden 5 Where it is to be kept 6 What actions will not lie in it ibid. Proceedings in it 14 The manner of keeping the Court 23 24 25 Processe of the Court Original 37 Judicial 43 County Clerk how to be qualified 7 He cannot practise as an Attorney 8 Can act nothing without the Suitors 9 His care in deputing Bailiffs 9 How he must enter plaints ibid. How he is punishable ibid. Count what it is 16 Continuance what 17 Challenge of Jurors What are good causes 21 Capias ad satisfac where it lies 71 174 Cap. lies not after an Elegit and Why 179 Note where it lies after an Elegit 178 What it is 179 One taken upon it must be kept in salva arcta custodia ibid. This Writ lies where a Capias lies in the originall ibid. Nothing but the body can be taken by this Writ 180 A man in the custody of the Sheriffe and a second writ is delivered to him he shall be in his custody upon it although not actually arrested ibid. Two bound in an obligation joyntly and severally both may be sued and taken in Execution ibid. This Writ lies not for damages in a Writ of Dower ibid. No return is required upon it ibid. Capias pro Fine what it is 181 An Elegit sued after one is taken for the Protectors fine he shall go at large ibid. No one taken upon it in trespasse c. ibid. Capias ut legatum what it is and where it lies 181 182 Capias ut legat inquiras de bonis catallis What it is 182 Capias ad valentiam what it is and Where it lies ibid. Coroners
day the Obligor tenders the mony and the Obligee refuseth the same yet upon an Action of debt upon the Obligation if the Defendant plead the tender and resusall he must also plead that he is yet ready to pay the mony and tender the same in Court but if the Plaintiff will not then recieve it but take issue upon the tender and the same be found against him he hath lost the mony for ever Every Plea must be offered to be proved true by saying in the Plea And this he is ready to verifie and this is termed an Averment If tender of Issue come on the Defendants part the form is And of this he putteth himself upon the Country If on the part of the Plaintiff it is And this he prayeth may be inquired of by the Country If Issue be taken upon these Pleas and Jury thereupon warned to appear to try them the Jury appearing the parties may have their challenges Challenge of Jurors CHallenge is said to be where there is evident favour as Kindred c. the Juror of Alliance Servant Bears malice or hath some Action against the Challenger Juror a Gossip of the Plaintiff Juror master to the Plaintiff the Juror eat at the Plaintiffs cost or take mony for his charges If the Juror was chosen Arbitrator for one party but otherwise where he was chosen indifferent for them The Sheriff or Bayliff which make the Pannell is of the Plaintiffs kindred Those who have been attaint of false oath or were seen on the Pillory or against whom there was Judgment of life or member Those who pretend to have some right in the thing demanded The Juror outlawed if the Record be shown Juror attaint of Conspiracy The Sheriff being Plaintiff It was allowed for a principall challenge that the Defendant was indebted to the Juror If any one or more of the Jury be returned at the denomination of the party Plaintiff or Defendant the whole array shall be quashed If there be a Challenge for Cozinage he that taketh the Challenge must shew how the Juror is Cozin If one within the age of one and twenty years be returned it is a good cause of Challenge Having now brought the Jury to the Bar and that they prove all honest men being sworn let them stand to the Bar and hear their Evidence If a full Jury do not appear as many as make default may be amerced What witnesses are not sufficient to give in Evidence and what are THe word Evidence is of a different signification as signifying authenticall writings of Contract but here it is taken for proof of a matter in question and at issue by testimonie of witnesses before a Jury and according to the Evidence the Jury are to give their Verdict according to their oaths And to demonstrate who are insufficient and may be excepted against are such as are infamous as are persons attainted of Felony or of a false Verdict or of Conspiracy or of Perjury or in a Praemunire or of Forgery upon the Statute of 5 El. c. 14. and not upon the Statute of 1 H. 5. 3. and such as have had Judgment to lose their ears or stand on the Pillory or have been stigmatized or branded and infidells men not of sound memory or not of discretion or such as are interessed in the cause and may have benefit by the thing in question these are not competent witnesses and a wife cannot be witnesse for or against her Husband But all other persons though they be never so near in consanguinity Tenants Servants Masters Counsellors or Attorneys are allowed for competent witnesses Co. Lit. fo 6. Plow 8. 12. And these being required must come in to give Evidence or they forfeit to the party damnified so much as the Court shall award and must give him costs and damages Statute of 5 Eliz. cap. 9. The Poet in two verses doth declare what things are required in a witnesse Conditio sexus aetas discretio fama Et fortuna fides in testibus ista requires The manner of keeping the Court. THe Sheriff at the first Court which shall be after his Election and discharge of the old Sheriff must read his Patent and Writ of assistance and nominate his under Sheriff and County Clark and 1 2 Phi. Ma. cap. 12. four Deputies at the least of the Replevins for the ease of the County Then enter the stile of the Court after this manner The first County Court of I. B. Esq Sheriff of the County aforesaid held at the Castle of Y. on Munday the seventh day of July 1656. Then command the Bayliff to make Proclamation three times O yes c and say All manner of persons that have any thing to do at the County Court holden here this day before I. B. Esq Sheriff of the County of Y. come forth and give your attendance Command the Bayliff to make Proclamation again O yes c. and say All manner of persons keep silence and hear the Lord Protectors Writs of Exigent and Proclamation read A Coroner is to be there then present to pronounce Judgment of Outlawry against those that do not appear upon the Exigent and Proclamation at the fifth County Command the Bayliff the third time to make Proclamation O yes c and say Essoynes and profers before the Court three times for this day And then say If any man will be Essoyned or enter any Plaints let him come forth and he shall be heard Then enter your Plaint in this manner A. B. against C. D. of a Plea of debt Then call the Plaintiff thus A. B. appear or thou losest thy Plaint three times If he appear by an Attorney then enter his Warrant of Attorney viz. the two first letters of his name over the name of the Plaintiff and then file his Declaration Then call the Defendant C. D. appear and answer A B. in an Action of debt or as the case is or thou forfeits thy goods distrained and further Processe will be awarded against thee If he appear then enter his appearance and an Imparlance to put in his answer to the Plaintiffs Declaration the next Court. When the Defendant hath put in his answer If the Plaintiff joyne Issue they may proceed to tryall the next Court day except they proceed further by Replication Rejoynder c. If they be at Issue send out a Venire facias to summon the Jury Then enter on the head of the Pannell thus Jury betwixt A. B. Plaintiff and C. D. Defendant in a Plea of debt When they are brought to the Bar command the Bayliff to make Proclamation c. and say You good men that be impannelled to try the Issue between A. B. Plaintiff and C. D. Defendant answer to your names every man upon the first call upon pain and perill that shall fall thereon If twelve appear then swear them one by one in this manner You shall well
and truly try this Issue between party and party according to your Evidence so help you God And as they are sworn enter by every mans name Jur. viz. juratus est he is sworn Being all sworn bid them stand together to hear their Evidence Then swear the Witnesses The Evidence that you are to give to this Inquest touching the matter in variance shall be the truth the whole truth and nothing but the truth so help you God Then let the Jury depart from the Bar to agree upon their Verdict At their return command the Bayliff to call every one by their names and count them Then aske them if they be all agreed on their Verdict Jur. yea Who shall say for you Jur. The foreman Then call the Plaintiff A. B. appear or thou loseth thy Plaint three times Then aske the Jury if they will stand to their Verdict Jur. yea Whether do you find for the Plaintiff or for the Defendant Jur. for the Plaintiff What damages Jur. 2 d. What costs of Suit Jur. 2 d. Harken to your Verdict this you say you find for the Plaintiff and assesse damages 2 d. and costs of Suit 2 d. so say you all Jur. yea Then bid the Plaintiff pay the Jury If the Verdict find matter incertainly or ambiguously it is insufficient and no Judgment ought to be given thereupon as if an Executor plead plene administravit viz. fully Administred of all the goods and Chattels which were of the Testator and issue is joyned thereupon and the Jury find that the Defendant hath goods within his hands to be administred but find not of what value this is incertain and therefore insufficient A Verdict that findeth part of the issue findeth nothing for the residue this is insufficient for the whole because they have not tryed the whole Issue wherewith they were charged But if the Jury give a Verdict of the whole Issue and of more c. That which is more is Surplusage and shall not stay Judgment for utile per inutile non vitiatur but necessary incidents required by the Law the Jury may find The Court being ended adjourn the Court to another day to be kept commanding the Bayliff to make Proclamation O yes c. and say All manner of persons that have any more to do at this Court let them come forth and they shal be heard otherwise they and every one else may depart for this time and keep their houre here on Munday the fourth day of August next by nine a clock in the morning c. Now the Court being done and the Defendant condemned by Verdict then Judgment being entred a Fieri facias shall be awarded to make Levy of his goods and thereupon the Defendants goods shall be taken praised and sold to satisfie the party Plaintiff and if the Defendant hath no goods whereupon Levy may be made then the Plaintiff rests without remedy in this Court Of Distresse COnsidering the many lacrymable wrongs the Country hath sustained by those Locusts that litigious generation of men a clamorous company qui ex injuria vivunt Seminaries of discord worse then any polars by the high way side monstra hominum rabulas forenses irreligious harpies scraping griping catchpoles Bayliffs and corrupt practisers and how much the ignorant people are abused and deceived yea many times as the sad experience of many will inform us ruined and utterly undone by them they being the sole causes of those ignominious aspersions cast upon the Court The advantage that it would produce to the Common-wealth is in-explainable if the Statute of 1. of H. 5. cap. 4. were observed that is that Sheriffs Bayliffs one year not to be in that Office in three years after because by their continuall being in that Office they grow so crafty and cunning that they are able to deceive the Sheriff and ruine the whole Country Therefore that the Country may not be altogether ignorant of their seeming authorized Actions I will declare what and when they may distrain and what and when they may not But first to declare what a Distresse is A Distresse is either said to be reall that is when Land is distrained upon a grand cape or petit cape of which we have nothing to say here or it is said to be personall where moveable things are distrained and this is that we are to speak unto Therefore a Distresse is where one doth take and distrain the Beasts Cattell and other things of another man in some ground or place for debt rent or other duty behind or for some wrong or damage done The Sheriff nor his officers cannot break a mans house in the night time to execute any Processe or to do any ministeriall act for the Law giveth no colour to break a mans house by night None can be distrained that are out of the Jurisdiction of the Court Marl. cap. 2. No Distresse can be made in the night but for Damage feasant The Bayliff may attach a man by his goods citing him to appear and answer such a day at such a mans Suit in such a Court and for such a cause Or he may onely give the Defendant warning in the presence of two others to appear such a day in such a Court at such a mans Suit it is sufficient And if an Attachment be made it must be of such goods of the Defendants own proper goods as are movables viz. by meer Chattels personalls which may be forseited by Outlawry and not immovables A Bayliff cannot sever horses joyned to a Cart. Sheep may not be distraind if there be a sufficient Distresse besides No man shall drive a Distresse out of the County where it was taken A Distresse may not be impounded in severall places upon pain of five pounds and trebble damages A man cannot work goods distrained nor convert them to his own use The goods of any man may be taken in any place within the County in another mans house or ground as well as his own If a Bayliff distrain or attach the horse of a master where the Plaint is against the servant Trespasse lyes for the Master against the Bayliff for the Bayliff ought to take notice at his perill whose goods he distrains or attaches 13 H. 4. fo 2. 14 H. 4. 24. 11 H. 4. 90. Dr. and St. 139. After Distresse or Attachment made if the Bayliff doth not return his Precept the next Court Trespass lyes against the Bayliff for the Defendant and an Action of the case lyes against him for the Plaintiff for not returning of the Precept 10 E. 4. fo 18. 3 H. 7. fo 3. By Choke If one take Beasts in the name of a Distresse he ought to put them in an open Pound for that he who is distrained may give to them sustenance but if he distraine dead Chattels he may put them where he will but if they spoyl in his default he must answer for them 19 E. 4. fo 2. b. If goods distrained
two Kine aforesaid impounded and detained were by the said H. H. and these two Kine going and elongated were before your coming out of the Pound aforesaid to places to you unknown by the aforesaid H. H. for which the two Kine aforesaid Replevie you could not wherefore it is considered by the Court willing to meet with the malice of him the said H. H. that the Beasts of the said H. H. be taken in Withernam to the value c. and these to the aforesaid G. A. be delivered safely and surely to be kept untill to the same G. A. his Beasts aforesaid according to Law you can Replevy and according to the tenure of my Mandate aforesaid Therefore you and every of you joyntly and severally I command that you take or c. the Beasts of the aforesaid H. H. to the value c. in Withernam and these to the aforesaid G. A. to be delivered you cause or c. safely and securely to be kept untill c. and distrain you or c. the aforesaid H. H. so that he be at the Castle of Y. at the next County Court to be held on c. to answer the aforesaid G A. in the Plea aforesaid and the answer of my Precept known make you c. at the next Court Given under the Seal of my Office such day and year c. Note that when a Replevin is granted there must be a Bond taken of him to whom it is granted or of some other for him with one or two sureties to appear at the next Court and to prosecute his Suit with effect or else it may be prejudiciall both to the Grantor of the Replevin and to the Executioner thereof and the form of that Bond and Condition thereof is this An Obligation upon a Replevin Know all men by these presents that we G. A. of Skipton in Craven in the County of Y. Gent. and I. B. of the same Town and County Yeomen are held and firmly obliged to G. M. Esq Sheriff of the County aforesaid in the summe of 100 l. of lawfull mony of England to be paid to the said G. M. or his certain Attorney his Executors or Assigns to which payment well and truly to be made we bind us our heirs Executors and Administrators firmly by these presents with our Seals sealed Dated the tenth day of July in the year of our Lord 1656. The Condition of this Obligation is such That if G. A. do appear at my next County Court to be holden for the County of Y. at the Castle of Y. on Munday the c. next and do prosecute there with effect his Suit which he hath commenced against H. H. for the taking and unjust detaining of two kine of the goods of him the said G. A. and to make return of the goods if return of the same shall be adjudged That then this present Obligation shall be void and of none effect c. Or thus The Condition c. that whereas G. A. hath obtained from the above named Sheriff a Replevin for the delivering of two kine and other goods distrained and detained by H. H. and others if therefore the said G. A. do prosecute his Suit upon the said Replevin with effect and do make return of the goods if return thereof shall be adjudged and also to save and keep harmlesse the said Sheriff by reason of the said Replevin to him granted as aforesaid That then this present Obligation to be void c. A Tolt TOlt comes from the Latine word tollo viz. to take away It is a Precept by which a cause depending in a Weapentake or Hundred Court or other inferiour Court Baron may be from thence removed into this Court The form is this Yo. ss I. B. Esq Sheriff of the County aforesaid to the Stewards and also to the Bayliff of the Hundred of H greeting Whereas I am informed that you are favorable and not equall in a certain Plaint depending before you in your Court between W. A. Plaintiff and R. M. Defendant therefore on the behalf of his Highnesse the Lord Protector and by vertue of my office I command you and either of you that you take the Plaint so depending before you in your Court between the said parties so that I may have the same at my next County Court to be held at the Castle of Y. on Munday c. next in the same state and Condition as it is now depending before you and that you give notice to the said parties of the same day that they may be there ready to prosecute the said Plaint as to Justice and Right shall appertain and that in further prosecution of the said Plaint in your Court you altogether supersede and no further proceed therein and this c. given under the Seal of my Office the c. The return Hundred of H. ss At the Court Baron holden at W. within the Hundred of H. aforesaid upon Wednesday the last day of Iuly the year c. in the time of I. B. Esq Sheriff of the County aforesaid The Plaint W. A. Plaintiff complains of R. M. Defendant in a Plea of debt damages twenty shillings By vertue of this Precept to us directed to be recorded and taken we have caused the Plaint depending before us in our Court betwixt the parties above named and in the same state and condition as it is now depending and to the same parties we have prefixed and given notice that they be at the County Court within written at the day and place within mentioned to prosecute the said Plaint as to Justice and Right shall appertain and as this Precept exacts and requires In testimony whereof we have hereunto set our Hands and Seals c. I. S. Steward T. L. Bayliff Judiciall Processe JUdiciall Processe issue out after Judgment either by default or Nihil dicit against the Defendant or Non-suit against the Plaintiff The form of Judiciall Processe or a Fieri facias is this Y. ss I. B. Esq Sheriff c. to all and singular my Bayliffs c. greeting I command you and every one of you joyntly and severally that of the Goods and Chattels of T. B. you or some of you cause to be made as well a certain debt of thirty shillings which H. S. in my County Court hath recovered against him as also 13 s. and 10 d. which to the said H. S. in the same Court were adjudged for his costs and charges about his Suit in this behalf expended and have you the mony at the Castle of Y. at my next County Court there to be holden upon Munday c. to render to the said H. S. of the debt and damages aforesaid whereof he is convict And this given under the Seal of my Office c. I. B. Esq Sheriff c. to all and singular my Bayliffs c. greeting I command you and every of you joyntly and severally that you or some of you levy of the goods and
County of Y. there held c. the aforesaid I. H. and the rest of the Defendants within named the fifth time exacted were at which day the aforesaid I. H. appeared and rendred himselfe to the prison of his Highness c. of the Castle of Y. whose body before the Iustices within written at the day and place within contained ready I have as within to me is commanded but the rest of the Defendants within named appeared not therefore c. as above And besides I. S. who hath rendred himself to the prison of c. of the Castle of Y. whose body before the Justices within written at the day and place within contained ready I have as this Writ exacteth and requireth And besides I. C. who dead is will not appear therefore by Judgement c. and the aforesaid T. C. waved is in presence of T. C. and F. W. Coronors of c. of the County aforesaid At the County c. 1. 2. 3. 4. exacted he was and hath appeared and rendred himself to the prison of c. of the Castle of Y. where so sick he is that fore fear of death him before the Justices within written at the day and place within contained have I cannot The Return of the Writ of Proclamation BY vertue of this Writ to me directed at my County of Y. held at the castle of Y. within written on Monday c. the year c. within written the first time to be proclaimed I caused And at my County of Y. held at the Castle of Y. aforesaid in the said County of Y. on Monday c. the year c. within written the second time to be proclaimed I caused as also at the general Sessions of the peace held at Skipton for the West riding of the said County within written on Tuesday viz. the 12. day of Sept. aforesaid the year c. within written publickly to be proclaimed I caused that I. C. and all other the Defendants within named themselves to render to the within named Sheriffs of London so that the same Sheriffs have their bodies before the Justices within written at the day and place within contained as this Writ exacteth and requireth The manner of proceeding upon the Writs of Recordare Pone Writ of False Judgment c. in the Common Pleas after removall out of the County Court YOu must repair to the County Clerk or his Deputy and demand a Return of the Writ of Recordare or Pone If upon the return the Defendant appear then must you declare and when your Declaration is drawn enter it upon a roll in one of the Prothonotaries offices and see that it be docqueted together with the number of the roll If the Writ be returnable in the begining of a term especially in issuable terms the Desendant is to answer the same term unless the Desendant hath Emparlance to plead until the following term Rules to answer must be entred in the Remembrance in the Prothonotaries Office entring in the Margent or over the head of the Rule that if the Defendant do not plead within some few dayes let Judgement be entred And if no plea be brought in within the time then may you sign Judgement with the Prothonotary in default of answer If the Defendant appear not upon the return of the Writ then may the Plaintiff have a Procedendo to carry the cause back again into the County Court If the Plaintiffs Attorney declare not against the Desendant upon his appearance within a reasonable time of the Term then may the Defendants Attorney enter a Rule in the Bill of Pleas against the Plaintiff to declare and if he declare not then may he enter a Non prosec and sign it with the Prothonotary and costs given for the unjust vexation If the Defendant plead generall issue then must the Attorney for the Defendant set his hand to the Doquet book of the Plaintiffs Attorney who draws up the plea and makes a Copy of the issue and delivers it to the Defendants Attorney and then they usually give notice of triall If the Defendant plead specially he is to bring it to the Plaintiffs Attorney under a Serjeants hand and if the Plaintiff reply specially it must likewise be under the Serjeants hand the like upon a Demurrer to a Declaration and Rejoynder in Demurrer If your triall be by Nisi prius at the Assizes in the Countrey and the Jury appeare not full upon the Pannel then may you require a Decem tales de circumstantibus viz. ten of the standers by to fill up the Jury or more or lesse as is requisite which Tales must be mentioned upon the return of the Postea and the Judgment upon it in the Issue Roll. Having entred your Declaration with the Issue joyned in the Prothonotaries Office then make out a Venire facias upon your Issue and get signed with the Prothonotary and seal it then get it returned by the Sheriff of the County where the action is laid and upon the return of it sue forth an Habeas corpora and deliver the same to the Sheriff to summon the Jury and get it returned before the Assizes In suing forth your Nisi prius ingrosse your Record according to the copy of the Issue made up and the entry of it upon the Roll in the Prothonotaries Office and examine it if it be upon an Issue joyned the same Term whose hand must be to it then carry the same to the Clerk of the Treasury to signe and make up the Record If the Issue was entred of a Term past then must you deliver the paper Book of the Issue to the Clerk of the Treasury to examine the same by the Roll and to make up the Record which must be signed by him then must it be sealed with the Lord chief Iustice of the Court and then deliver it together with the Hab Corp Iur. returned by the Sheriff to the Clark of the Ass for that County where it is to be tried paying the Judges Then retain Councel and have your witnesses ready for the trial The triall being had and verdict passing for your Client the next Term you are to call of the Clerk of the Assizes for a return of the Postea and thereupon the Prothonotor will assesse costs and cause Judgement to be entred upon which you may have Execution by Capias ad satisfaciendum Fieri facias or Elegit c. according as you desire and as the nature of the action brought doth allow or require Note that a Capias ad satisfac is only against the body who must be imprisoned until satisfaction be made and if the Defendant cannot be found the Plaintiff cannot have another Execution 20 E. 2. for he may chufe at the first whether he will have a Capias or an Elegit but if he take the Capias he shall not have the Elegit afterwards nec è converso 15. H. 7. 15. The Writ of Fieri
answer for the same A. B. and C. C. his Clyents to the same E. F. in the said Plaint And the said Attorny for his said Clyents saith nothing in Bar as in others by which the said E. F. his damages against the said A. B. C. D. by occasion of the taking and unjust detaining of his Cattle aforesaid ought to recover but because it is unknown to the Court here what damages the said E. F. sustained by occasion of the premisses It is commanded to the said I. S. then Bayliff of the Wapentake of W. aforesaid one of the Ministers of the County Court aforesaid that he cause to come before the said Sheriffe at the next county Court of the County aforesaid to wit the 15th day of May in the yeare abovesaid at the Castle of Y. aforesaid then next following to be held twelve honest and lawfull men of the neighbourhood of S. to be suspected by neither party to enquire upon their Oath what damages the said E. F. sustained aswell by the occasion of the taking and unjust detaining of the cattle aforesaid as for his costs and charges by him about his suit in this behalf laid out and the same day was given to the said E. F. here c. At which said next County Court the same 15. day of May in the yeare abovesaid before the same Sheriff of the County aforesaid held came the said E. F. by his Attorney aforesaid And the same I. S. Bayliffe of the Wapentake aforesaid sent not his precept thereof Therefore as before it is commanded to the said I. S. Bayliff c. that he cause to come here at the next County Court before the same Sheriff of the County aforesaid to wit the 12 day of A. in the yeare abovesaid at the castle of Y. aforesaid to be held the 12th c. to enquire c to inform aforesaid c. At which day to wit the 12th day of April aforesaid before the same Sheriffe of the County aforesaid came the same E. F. by his Attorney aforesaid And the said I. S. Bayliffe c. and one of the Ministers of the same Court returned before the same Sheriffe the said precept de venire fac in all things served and executed And thereupon the Jury being thereof impannelled and called came and to enquire in forme as aforesaid sworn and charged say upon their oath that the said E. F. sustained damages by reason of the taking and unjust detaining of the Cattle aforesaid besides his costs and charges by him about his suit in this behalfe laid out 30 s. and for these costs and charges to 12 d. Therefore it is considered by the Court here that the said E. F. recover against the said A. B. and C. D. his said damages by the Jury aforesaid in form aforesaid assessed and also 26 s. to the same E. F. by the Court here for his said costs charges of his assent of increase adjudged which said damages in the whole amount unto 57 s And the same A. B. and C. D. in mercy c. Whereupon it was commanded to the same I. S. Bayliff of the Wapentake of W. aforesaid that of the goods and Chattels of the same A. B. and C. D. in his Bayliwick he should levy the damages aforesaid and that he have the money before the said Sheriffe at the next County Court at the castle of Y. to be held to wit the tenth day of March in the yeare abovesaid to render to the said E. F. for his damages aforesaid Whereupon the same E. F. prayeth that the said A. B. and C. D. would assigne and declare to the Court herein what or wherein false judgement is made to him in the said Plaint if any thing can be found proved or made appear c. And hereupon the same A. B. and C. D. say that the said Record is vitious and very much defective in this to wit that by the same Record it appeareth that the same cattle were taken the 15. day of January in the yeare abovesaid and that the complaint thereupon was levyed at the County Court of the Sheriff the 19th day of December in the yeare abovesaid so that the complaint was levied before the taking of the cattle afore made c. Also in this that by the Record it appeareth that the County Court aforesaid was held before the said Sheriffe of the County aforesaid whereas the same Court ought to be held before the same Sheriffe and suitors of the same Court so that the same Plaint was levied Coram non judice And the processe thereupon adjudged without any warrant in Law And so the same A. B. and C. D. say that in the County aforesaid false judgement was done to them in the said Plaint And pray that the said judgement for those errours and others in the same record and proceedings being may be revoked adnulled and altogether taken for nothing And that they unto all things which they by occasion of the judgement aforesaid have lost may be restored c. It was commanded the Sheriffe that if A. B. should secure the same Sheriffe to prosecute his complaint that then taking with him four discreet and lawfull Knights of the County aforesaid in his proper person he come to the Court of the Honour of P. and in full Court cause to be recorded that Plaint which was in the same Court of his Highnesse the Lord Protector between C. D. and the same A. B. in a certain Action upon the Case to the same C. D. by the same A. B. done as it is said Whereupon the same A. B. complaineth false judgement to be made to him in the said Court and that he should have here the Record at this day to wit Octab. Hill under his seal and by four lawfull men of the same County of those who shall be present at the Record and that he summon by good summoners the said C. D. that he should be here to hear that Record And that he have then here the names of the foure Knights and that Writ c. And now here at this day to wit Octab. Hill came as well the same A. B. by S. D. his Attorney as the same C. D. by P. P. his Attorney And the Sheriffe to wit G. M. Esq now returneth that the same A. B. found to the same Sheriff pledges to prosecute Io. Doo Ric. Roo And that the same C. D. was summoned to be here at this day by Io Den and Ric. Fen and that he by vertue of the same Writ to him directed took along with him I. S. W. P. I. H. and W. VV. four discreet and lawfull Knights of the County aforesaid and in his proper person came to the said Court held at P. in the County aforesaid the 15th day of October in the yeare of our Lord 1657. and in full Court made to be recorded the said Plaint whereof in the same Writ mention is made which said Record here at
this day he hath ready under his seale and the seales of the said four lawfull men who were present at the Record as by the same Writ to him it was commanded to answer to the said C. D. in the same plea whereupon the same A. B at the same Court put in his place S. D his Attorney in the same plea. And the same C. D. at the same Court by his Attorney aforesaid complained against the same A. B. for that to wit that whereas the same C. D. the last day of Dec. in the year aforesaid at W. aforesaid and within the jurisdiction of the Court aforesaid was possessed of one piece of woollen cloath containing eleven ells price 34 s. as of his proper goods and chattels And being so thereof possessed the same piece of cloath out of his hands and possession casually lost which said piece of cloath afterwards to wit the 12th day of February then next following into the hands and possession of the said Defendant by finding came Notwithstanding the said Defendant knowing the said piece of cloath to be the proper piece of cloath of the said Plaintiff and to him of right to belong and appertain and minding and intending the same Plaintiffe of the same piece of cloath craftily and subtilly to deceive and defraud the same piece of cloath although thereof the third day of March in the yeare abovesaid he was requested to the same and hath not delivered but the same piece of cloath afterwards to wit the 18th day of March then next following at VV. aforesaid within the jurisdiction of this Court aforesaid unto his proper use he converted and disposed to the damage of the said Plaintiff of 39 s. And thereof he bringeth suit c. And the said Defendant at the same Court prayeth Licence thereof to imparle untill the next Court and hath it c. The same day is given to the said Plaintiffe then there c. At which day the Court was held within the said Honour of P. the 26th day of May then next following came aswell the said Plaintiff as the said Defendant by their Attorheys aforesaid And the same Defendant prayeth further Imparlance untill the next Court within the said Honour to be held and hath it c. The same day is given to the said Plaintiff then there c. At which said next Court holden within the Honour aforesaid the 26th day of May then next following came as well the same Plaintiff as the same Defendant by their Attorneys aforesaid and hereupon the said Defendant prayeth further imparlance thereunto to speak until the next Court of the Honour aforesaid to be held and hath it c. The same day is given to the said Plaintiff then there c. At which said Court held within the said Honour the day of then next following came aswell the said Plaintiff as the said Defendant by their Attorneys aforesaid And the same Defendant then defended the force and wrong when c. And said that he was in nothing guilty of the premisses above imposed upon him as the said Plaintiff by his said Declaration complained against him and of this he putteth himself upon the Countrey and the said Plaintiff likewise whereupon it was then commanded to the Bailiff of the Honour aforesaid that he cause to come to the Court of the Honour aforesaid to be held by 12 free and lawfull men of the Honour asoresaid to try the issue aforesaid above joyned Day was given to the parties abovesaid then there c. At which said next Court held within the said Honour the day of then next following came aswell the said Plaintiff as the said Defendant by their Attorneys aforesaid and the said Bayliff returned the Pannel with all the Jurors whereof 12 being called came and were sworn and said upon their oath that the said C. D. was possessed of the said piece of cloth in the Declaration aforesaid specified and that the same piece of cloth by finding came to the hands of the said A. B. and that the said Plaintiff requested the same A. B. to deliver to the same Plaintiff the same piece of cloth and that the said Defendant did not deliver the same to the said Plaintiffe And further the said Jury said that the said Defendandant doth yet detain in his hands the same piece of Cloth and if upon the whole matter in form aforesaid found the same Defendant to be guilty of the premisses in the Declaration aforesaid specified or not the Jury aforesaid are altogether ignorant and pray the advice of the Court in the premisses and if upon the whole matter in form aforesaid found it shall seem to the Court that the said Desendant is guilty of the premisses in the Declaration aforesaid specified then the said Jury say upon their oath That the same Defendant is guilty of the premisses in the Declaration afore said specified And then the said Jury do assesse damages by occasion of the premisses besides costs and charges by him about his suit in this behalfe laid out to 20 s. and for those costs and charges to 12 d. and if upon the whole matter in form aforesaid found it seemeth to the Court here that the said Defendant is not guilty of the premisses in the Declaration aforesaid specified then the Iury aforesaid say upon their oath That the said Defendant is not guilty of the premisses in the Declaration aforesaid specified And because the same Court will advise of and upon the premisses before they give Iudgement therein day is given to the parties aforesaid here until the next Court to be held in the said Honour to hear thereof their Iudgment c. At which said Court held in the said Honour the day of then next following came aswell the said Plaintiff as the said Defendant by their Attorneys aforesaid And because the same Court of giving their Iudgment therein are not advised day is given to the parties aforesaid until the next Court to hear thereof their Iudgment c. At which said Court held in the said Honour the day of then next following came aswell the said Plaintiff as the said Defendant by their Attorneys aforesaid whereupon the premisses being seen and by the Court here fully understood it seemed to the Court here that the same Defendant is guilty of the premisses in the Declaration aforesaid specified Therefore it is confidered by the same Court That the same Plaintiff recover against the said Defendant the said 21 s. by the Jury aforesaid in form aforesaid assessed and also 22 s. for his costs and charges by the Court here by his consent of increase adjudged which said damages do in the whole amount unto 53 s. And the said A. B. in mercy c. And hereupon the said C. D. prayeth That the said A B. may shew to the Court here and assign the defects wherein false judgment is made to him in the said plaint in the said Court if any be made Whereupon the
same A. B. saith that the said Record is vicious and much defective and that false judgment is done to him in the said plaint in this that in the Record no mention is made whole that Court of the Honour of P. is and in this that no mention is made who is Lord of the said Court nor who are Suitors of the same and also in this that the Jury have not found that the said A. B. converted the same peece of Cloth to his proper use and so the same A. B. saith that divers ways in the said Court false Judgment is done to him in the said plaint And prayeth that the said Judgement for those divers errors and others being in the Record as false and erroneous may be revoked and taken for nothing And that he unto all which he by reason of the said false judgement lost may be restored And that the Justices here proceed to the examination of the premisses And because the Justices here c. SOME SELECT PRESIDENTS OF DECLARATIONS AND PLEADINGS Incident and belonging to this COURT Debt Executor against an Executor upon a Bill E. F. Executor of the last Will and Testament of I. F. deceased by vertue of a Writ of Iusticies to the Sheriff of the County aforesaid directed by I. S. his Attorney complains of M. VV. Executor of the last Will and Testament of R. VV. late of T. in the County Y. husbandman deceased otherwise called R. VV. late of T. of Y. Husbandman deceased of a Plea that he render unto him 7 l. of c. which he unjustly detains from him c. for that whereas the said R. VV. in his life time that is to say the 20. day of c. year c. at the Castle of Y. in the County of Y. and within the liberty and jurisdiction of this Court by his bill obligatory sealed with his Seal and here in Court produced bearing date the day and year abovesaid acknowledged himself to be indebted to the said I. F in his life time the whole and just sum of 7 l. of c. to be paid to the said I. F. his heirs executors administrators or assigns upon the third day of May next ensning the date of the said Bill and for the payment thereof the said R. VV. then and there bound himselfe his executors administrators and assigns Neverthelesse the said R. VV. in his life time though often thereunto required the said 7 l. to the said 1. F. whilest he was living hath not paid neither hath the said M VV. Executor of the last Will and Testament of the said R. VV. after his death paid the same to the said E. F. Executor of the last Will and Testament of the said I. F. to which said M. VV.'s hands came all and singular the goods and chattels which were the said R. VV.'s in his life time sufficient to satisfie all the debts which the said R VV. at the time of his death owed to any person or persons whatsoever as also to satisfie the said E. F.'s debt but the said R. W. whilst he lived refused to pay the same to the said I. F. in his life time and the same M. W. likewise after the said R. W.'s death refused to pay the same to the said E. F. after the death of the said I. F. and still refuseth so to do and unjustly detains the same by reason whereof the said E. F. saith he is damnified 10 l. and thereupon produceth this suit c. And the said E. F. produceth here in Court the said letters testamentary by which it appears the said E. F. to be Executor of the last Will and Testament of the said I. E. deceased c. Vpon a Bill to be paid at the day of marriage and issue upon it T. N and E. his wife Administratrix of the goods and chattels which were of I. B. deceased complains by S. D. his Attorney of I. H. of C. in the said County Gent of a Plea that he render unto them 5 l. which he unjustly detains c. for that whereas the said I. H. such a day year and place by his certain bill obligatory with his seal sealed and here in Court produced the date whereof is the same day and year For and in consideration of one Gold-ring with a certain Stone called a Diamond in the same Ring fixed of the aforesaid T. B. in his life time received the day of the making of the aforesaid bill did acknowledge and grant to and with the aforesaid T. B. in his life time that he the said I. H. his executors or assignes would pay or cause to be paid to the aforesaid T. B. his Executors or assignes for the same Ring at such a day and time as he the said I. H. should be wedded or married or at any other time after his marriage whensoever he should be required by the aforesaid T. B. his Executors or assignes or by him that should bring the said bill the said sum of 5 l. to his or their use the aforesaid time to be paid and the same T. N. and E. in fact say that the aforesaid I. H. after the making of the said bill to wit such a day year and place within the Parish Church of H. did take to wise one I. D. by which the action did accrew unto the said T. R. in his life and to the said E. after the death of the said T. B. whilst she was sole and to the said T. N. and E. after espousals between them celebrated to require and have of the aforesaid I. H. the same 5 l. Yet the aforesaid I. H. although often required the aforesaid 5 l. to the aforesaid T. B. in his life time or to the aforesaid E. whilst she was sole to whom the administration of all the goods and chattels which were of the aforesaid T. B. the time of his death such a day year and place was committed to the aforesaid T. N. and E. after espousals between them celebrated hath not rendred but the same to render to them hath denied and the same to them the said T. N. and E. as yet to render doth deny and unjustly detain whereupon they say they are damnified and have damage to the value of 10 l. and thereupon they bring their action c. And they bring into Court here the letters of administration c. The Defendant pleads that he was within age at the time of the making of the Bill AND the aforesaid I. F. by R. B. his Attorney comes and defends the force and injury when c. and sayes that the aforesaid N. and E. ought not to have their action aforesaid against him because he saith that he at the time of the making of the Bill aforesaid was within the age of one and twenty years and this he is ready to aver whereupon he demands Judgment whether the aforesaid T. N. and E. ought to have their action aforesaid against him c.
declared and this he is ready to verifie whereupon he prayes Judgement of the said Writ of Justicies and that the said Writ of Justicies be quashed c. Plea in Abatement for that the Plaintiff hath one name in the Writ and another in the Declaration ANd the said A. by I. R. his Attorney comes and prayes Judgment of the Writ of Justicies aforesaid because he saith that he is the same person against whom the said B hath brought his Writ aforesaid by the name of B. D. otherwise E. Yeoman and that the said B. is named John otherwise Henry and by the same name of B. D. otherwise E. the day of obtaining of the Writ of Iusticies of the said B. and alwayes afterterwards hitherto he hath been known and called and by the same name of B. D. otherwise against the said A. in his Declaration aforesaid now hath declared without that that the said B. is named or called Iohn otherwise Henry or by the same name of B. D. otherwise E. hath been at any time known or called and this he is ready to verifie whereupon he prayes Judgment of the writ of Iusticies aforesaid c. The Defendant justifies for horse-meat not satisfied in answer to a Declaration in Trover for the same horse ANd the said A. saith that he the same time in which the said horse in the Declaration aforesaid specified is supposed to come to his hands and by two years then next elapsed and ever afterwards and yet is a common Inn-keeper and holdeth a certain Inn called the George in the Parish and Town of Harwood in he said County of Y. and that one C. D. the twelfth day of August in the year aforesaid at the Parish and Town of the said H. came to the Common Inne of the said A. bringing with him the said horse into the said Inne which said horse the said C. D. the same twelfth day of August abovesaid untill the twenty fourth day of Iune in the year c. abovesaid in the Inne of the said A. remained at meat and that the said meat of the said A. eaten and consumed within the same Inne by the same horse between the said 12. day of August in the said year of c. and the said 24. day of Iune in the yeare aforesaid was worth eight pounds ten shillings of lawfull money of England And that no person within that time paid the said A. for the said meat neither compounded nor agreed with the said A. for the same whereupon certain L M. NO and others lawfull and honest persons the neighbors of the said A. and inhabiting and remaining within the said parish of H. in the County aforesaid at the request of the said A. afterwards to wit the 24. day of Iune abovesaid at the said Town and Parish of H. reasonably appraised the said horse at six pounds ten shillings and no more whereupon the said A. afterwards to wit the said 24. day of Iune in the year abovesaid at the aforesaid Town and Parish of H. retained that horse in his hands towards the satisfaction of the said A. for his meat aforesaid then and there did convert and dispose as it was lawfull for him to do with it without that that the said horse came to the hands of the said A. in the aforesaid County of L. or any other place without the said Town and Parish of H. in the said County of Y. as the said C D. above against him complaineth and this he is ready to verifie whereupon he prayeth Judgment if the Plaintiff his Action c. The Defendant pleads leave and liberty granted to him by the Plaintiff to enter and feed his Cattel ANd the said A. as to the aforesaid Trespasse as to the breaking of the Close aforesaid and the eating c. with his cattel c. and the treading c. with his feet above supposed to be done saith that the same B. before the same time in which c. to wit the 22. day of May in the year c. at Skipton aforesaid in the County aforesaid and within the liberty and jurisdiction of this Court gave liberty to the said A. into the tenements aforesaid with the appurtenances of new assigned to enter and put in his Cattel aforesaid the grasse in the tenements aforesaid with the appurtenances of new assigned then there growing to eat up By vertue of which said liberty the same Defendant the same time in which c. into the tenements aforesaid with the appurtenances in which c. entered and his Cattel aforesaid to eat the grasse there put And the same Cattle the same time in which c. by vertue of the liberty aforesaid the grasse aforesaid in the tenements aforesaid with the appurtenances did eat tread down and consume which said breaking of the Close aforesaid and eating treading down and consuming of the grasse aforesaid with the Cattel aforesaid in the tenements aforesaid with the appurtenances above newly assigned and the treading and consuming of the other grasse aforesaid in the same tenements with the feet walking by vertue of the liberty aforesaid and for the cause aforesaid in form as aforesaid done is the same breaking of the Close c. And this c. The Plaintiff replies de injuria propria and traverseth the liberty And the Desendant justifies he gave the liberty and issue thereupon The Defendant justifies in Replevin the taking of the Cattel for Rent in arrear ANd the said A B. by S D. his Attorney cometh and defendeth the force and injury when c. and doth well avouch the taking of the said Cattel in the said place in which c. And justly c. because he saith that the said place in which c. is and from the time of the said taking and before was four acres of Land in M. aforesaid and saith that long before the time of the said taking before supposed to be done and at the same time the said A B. was seized in his Demesne as of fee of one Messuage one Garden and four acres of Land and one acre of Wood with the appurtenances in M. aforesaid whereof the said place in which c. is And at the said time in which c. was parcel and so being thereof seized that same Messuage Garden Land and Wood with the appurtenances long before the time of the taking aforesaid that is to say at the Feast of the annunciation of our blessed Virgin Mary in the year c. at M. aforesaid demised unto the aforesaid C D. to have to him from the same Feast as long as it should please him the said A B. yielding therefore yearly unto the said A B. as long as the said C D. should have and ocupy the said Messuage Garden Land and Wood 30 s. at the Feast of St. Michael the Archangel and the annunciation of our blessed Virgin Mary by equal portions yearly to be paid by vertue of which demise the
aforesaid in their Demesne as ofsee Between which said Closes there is a certain hedge separating each from other the aforesaid Closes which said hedge the aforesaid D. and all they whose estate the same D. hath in the Close aforesaid from time out of minde were accustomed to make repaire and sustain and say that that hedge for want of reparation and sustaining of the same was at the time of the Trespasse aforesaid supposed to be made broken down and laid prostrate to the ground and that the Cattel of the said A. and B. in their Close aforesaid put to depasture into the said Close of the aforesaid D. by the breach and decay of the said hedge did enter against the will of them the said A. and B. and the grasse aforesaid did eat up tread down and consume the same A. and B. their Cattle aforesaid freshly pursuing into the said Close of the said D. by the breach and decay aforesaid did enter to drive backe their Cattle into the said Close of them the said A. and B. and into that Close speedily drove them as it was lawfull for them to do which is the same trespasse and breach of close and feeding treading downe and consuming the grasse aforesaid whereof the said D. above against them complaineth And this they are ready to averre c. whereupon c. The Defendant upon a Replevin avoweth the taking of the Cattle doing Damage Feasant ANd the said A. by c. cometh and defendeth the sorce and injury when c. and doth well avow the taking of the said Cowes in the said place in which c. and justly c. because he saith that he is seized and at the time of the said taking was seized in one Messuage and 12 acres of Meadow with the Appurtenances in the said Towne of S. whereof the place in which c. the said Cowes were taken as parcell in his Demesne as of Fee And for that he at the time of the said taking found the said Cows doing damage in the said place in which c. the said A. those Cowes in his ground and free-hold so doing damage took as to him it was lawfull And this he is ready to prove whereupon he prayeth judgement and the returne of the said Cattle c. Misnomer in the Writ of Justicies ANd hereupon comes Alvered Pease by W O. his Attorney and saith that he being by vertue of the said Writ of Iusticies summoned by the name of Abraham Pease neither is nor can be understood the same person against whom the said E. W. hath brought his Writ by the name of Abraham Pease For he saith that he is named called Alvered Pease and by the same name and sirname from the time of his nativity always known and called without that that he is named or called Abraham Pease or by the same name and sir-name was ever known or called as by the said Writ is supposed And this the said Alvered is ready to aver and prove whereupon he demandeth Judgement of the said Writ and that the same may be quashed c. Non cepit to a Replevin ANd the said B. by S. H. his Attorney cometh and defendeth the force and wrong when c. And saith that he did not take the Cattle aforesaid as the said A. above against him complaineth And of this he putteth himselfe upon the Countrey And the said A. likewise c. Property ANd the said B. by S. H. his Attorney cometh c. and saith that the property of the Cattle aforesaid at the supposed time of their taking was in the said B. and not in the said A. And this he is ready to prove whereupon he prayeth Judgement c. Demurrer to a Declaration ANd the said B. by C. D. his Attorney comes and desends the force and injury when c. And saith that the Declaration of the said P. and the matter therein contained are not sufficient in Law for the said P. to maintain his action aforesaid against him the said B. to be had And that he to that Declaration in manner and forme aforesaid made hath no need nor by the Law of the Land is bound to answer And for causes of Demurrer in Law in this behalse the said B. according to the forme of the Statute in this behalf provided doth shew to the Court these causes following That is to say that the said Declaration doth contain double and insufficient matter and wants forme and this he is ready to aver whence for default of a sufficient Declaration in this behalse the same B. prayeth Judgement and that the said P. may be barred of having his action against him c. Joyning in Demurrer ANd the said P. saith for that he above declaring hath in his said Declaration alleadged sufficient matter in Law to maintain his said Action to be had against the said B. which he is ready to aver which matter the said B. doth not gainsay nor thereunto at all answer but wholly refuseth to admit that averment prayes Judgement and his debt aforesaid together with damages by reason of the detaining of the said debt to him to be adjudged c. If it be in Trespasse then thus PRayes Judgement and his damages by reason of the sayd Trespasse or Trespasse and Assault or Trespass Assault and Imprisonment as the case is to him to be adjudged c. If in an Action upon the Case PRayes Judgement and his damages by the occasion before specified to him to be adjudged c. OF THE JUDICIAL AND MINISTERIAL POWER OF SHERIFS TO treat of the Originall or first Institution of Sheriffs in this Common-wealth is not here necessary being already done in the tract of the County Court or first part of this our subject matter Therefore we will initiate with the office of Sheriff in which office he hath triplicem custodiam a three-fold custody viz. 1 Custos vitae Reipublicae The Conservator of the life or peace of the Common-wealth 2 Custos vitae Iustitiae The preserver of the life of Justice for no Suit doth commence and no Processe is executed but by him 3 Custos vitae legis The Guardian or Tutor of the life of the Law for after tedious and long spun suits he is to make due execution which is the very life and spirit of the Law Now as he is Custos vitae Reipub. or Principalis conservator pacis within the County he hath a Judicial authority in the other two a Ministeral 1. And first to discover his Judiciall power And as he is a preserver of the peace he may ex officio upon request command and cause another to finde sureties of the Peace and may take the same sureties by Recognizance for all Obligations that he takes to that end are as Recognizances in Law And if he see one man assault another or if an assault be made upon himselfe he may compel them to finde sureties of the
proceeding against the principal but in case where there are moveables of the principal to satisfie the debt the Sureties as it seems shall not be charged Stat. de Mercatoribus Execution by vertue or force of a Recognisance shall be of all the goods and chattels of the Reconusor except the Beasts of the Plough and implements of Husbandry and of the moyty of his Lands West 103. The Recognisee by the first Writ shall not have Execution but of the Land which the Reconusor had at the time of the Reconusance and upon return that he had no Land then he shall have a Writ to try who had it at the time c. or after c. 36 E. 3. Execution 47. 19 E. 3. 1. Where two sued Execution the money was delivered to one and the Attorney of the other Mich. 14. E. 3. Execution 76. and the Desendant in Court did pay the money to one the other being absent and it was good and the Recognizance was withdrawn Mich. 22. E. 3. 15 Execution 87. The heir shall be charged in debt of the Lands which he had by descent the day of the Writ brought and not the day of Judgement Mich. 18. E. 2. Execution 241. If a man be in Execution upon a Statue and findes bail and doth not appear at the day but at another day the bail brings him in now it is in the Election of the Plaintiff to take Execution of his body and Land or to take the bail See 59. E. 3. Execution 43. If two sue Execution and before the Extent one dieth the Sheriff shall extend the Land and shall deliver the same to the other 11. R. 2. Briefe 938. But if two sue Execution of a Statute-Merchant and the Reconusor is returned dead and then one of the Conusees doth acknowledge the death of his Companion he shall not have Execution without suing a Writ out of Chancery 25 E. 3. 38 Execution 92. Where three are bound in a Statute joyntly and severally the Plaintiff shall have Execution against one or all of them at his election and not against two and so of an Obligation But if he bring debt against them all upon a joynt Bond the Execution shall be against all but if he bring it by severall Praecipe's he shall not have Execution but against one 34 E. 3. Execution 129. 14 H. 4. 19 Execution 29. Note further that a Recognisance though in the speciall signification it doth but acknowledge a certaine debt and is executed upon all the goods and halse the Lands of the Recognisor Yet by extention it is drawn also to the Bonds or Obligations commonly called Statute Merchant and Statute Staple as appeareth by the Register of Originall Writs fol. 146. 151. 152. Elegit what 4 ELegit is a Judiciall Writ by the Statute and lyeth for him that hath recovered debt or damages against one not able in his goods to satisfie and directed to the Sheriff commanding him that he make delivery of halse the parties Lands or Tenements and all his Goods and Chattels Beasts for the Plow excepted Old N. B. fol. 152. Register of Originall Writs fol. 299. 301. and the Table of the Register judiciall which expresseth diverse uses of this Writ In Elegit by force of the Statute of Westminster 2. Cap. 18. the Sherif may take in Execution the moietie of the Lands of the Conusor and all his Goods and Chattels except as before and may deliver them unto the Conusee upon a reasonable price or extent untill the debt be satisfied But the valuation of the goods and lands ought to be first found by the Inquisition of a Jury Co. 4. 74. And the Sherif is to deliver him seisin of them who is tenant by Elegit and shall do no waste Upon Elegit the Sheriffe ought to returne the extent and also that he hath delivered the Lands c. 12 Edward 3. Scire Facias 117. and the extent shall be good for the summe due notwithstanding that it be of more 44 Edward 3. 11. Execution 35. A man sued an Elegit and had a terme of yeares delivered to him in Execution which the Desendant had in possession as a Chattell and adjudged good An Annuity may be extended and Rents c. In every Elegit the Sheriffe must returne and set out the moietie distinctly unlesse they be Tenants in Common and in that case he must returne the speciall matter An Elegit issued out against one Greisley by the name of Greisley Esquire who was at the time of suing out the Writ made Knight and Baronet and it was insufficient and the Plaintiffe prosecuted a new Writ Brownlows Rep. 38. A Lessee had a Lease to the value of 100 pounds and after the Teste of the Elegit and before the Sheriffe had executed it assignes his terme to one who assignes it to the Plaintiffe in the scire facias and asterwards and before the last assignment the Sheriffe executes the Elegit and delivers the Lease to the Plaintiffe to be holden c. for satisfaction of the debt which came but to 43 pounds 6 s. 8 d. and it was held by all the Judges that the Sheriffe could not deliver the Lease at another value then what the Jury had found it at and the sale made by the Sheriffe is as strong as if it had been made in the open Market and that all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the owner after the Teste of the Writ Brownlowes Rep. 38. Comers versus Brandling There are good diversities between an Execution not valuable as of the Defendants body and an Execution valuable as of Lands c. As if two men are bound joyntly and severally in an Obligation and the one is sued condemned and taken in execution and afterwards the other is also sued condemned taken in execution and then the first escapes and the other brings his Audita Querela In that case he shal be barred to bring that Writ untill the Plaintiff be satisfied So likewise if the Desendant in debt dye in Execution yet the Plaintiff may have a new Execution by Elegit or Fieri facias But if the Plaintiff have once Execution of the Lands of the Defendant and after the Lands are evicted there before the Statute of 23 H 8. Cap. 5. he shall not have any new Execution for the Execution of the Lands was valuable and accounted in Law for a satisfaction and to avoid infinitenesse he shall have but one valuable satisfaction or one Execution with satisfaction at the Common Law Co. 5. 86. b. 3. Blumfields case If upon an Elegit there be no Execution but upon goods because there is no Land and the goods appeare insufficient hee may have a Capias For note it is in effect but a Fieri Facias though the word be Elegit But if there be Land
Statute doth extend only to Obligations of such as are within their guard and custody and not otherwise Trespasse brought for breaking his house and breaking three doores and breaking and carrying away three locks of those doores The Defendant justifies the entry into the house by vertue of a Fieri facias awarded against the Plaintiffe directed to the Sheriffe of and he being under Sheriffe and the other Defendants his Bailiffs two of the Defendants entred into the house and the door being open took the goods and the Plaintiff shut the doors upon the Bailiffs and imprisoned them for two hours wherefore he brake open the doors and the locks to rescue his Bailiffs Quae est eadem transgressio and it was thereupon demurred and all the Court held that although a Sheriff cannot break open an house being to take Execution by a Fieri fac yet when the door is open that he enters and be disturbed in his execution by the parties who are within the house he may break the house to rescue his Bailiffs and to take execution so it was adjudged for the Defendants And in regard this restraining of the Execution and detaining of the Bailiffs was confessed by the Demurrer an Attachment for the good behaviour was awarded against the Plaintiffe Crookes second part fol 555. and 556. If the Sheriff take Leases for years or other chattels real upon an Execution he may seize and sell them without taking Inquest by a Jury of them and the sale will be good Co 5. 90. 4. 74. And no return is required upon a Fieri facias if Execution be done which is grounded upon four strenous and solid reasons by Coo. in his 5. Report in Hoes Case 1. Because the levying of the debt is lawfull and well done and the party Defendant cannot resist the Sheriff to levy money 2. The effect of the authority the Sheriff hath by force of the Fieri facias is executed 3. The great prejudice that the Defendant whose goods are sold by the Writ and processe of Law for the satisfaction of the debt should have if the Sheriffs not returnig of the Writ should cause a new Execution to be sued forth against him and leave the Defendant to his action against the Sheriff 4. if the sale of the goods by force of the Writ shall be for not returning the writ wrongfully then the Sheriff will not finde Buyers of the Defendants goods by force of any Writ of Execution which would be very inconvenient and great delay of Executions which are the fruit and life of every suit and where the words of the Writ of Fieri facias are Ita quod habeas denarios c they are but words of command to the Sheriffe to make returne which if he do not he shall be amerced but the Execution shall stand in force Levari Facias what it is WE come to the seventh which is a Levari facias and it is onely to be levied upon the profits of the Lands and Tenements and upon the goods of him that hath forfeited a Recognisance c. Register Orig. fol. 298. b. 300. b. but he cannot seize the Land and deliver that to the party by this Writ Plow 441. and this ought to be sued within the year after the day of payment to be made by the Recognisance or after the Judgment for after the year the Conusee or Plaintiff is now by the Statute of Westm 2. cap. 45. to have a Scire facias whereby the Sheriff is commanded that he give knowledge to the Defendant that he appear at a day certain in the Chancery there to shew what he can say why he should not pay the debt or damages and if he come not at the day or do come and can say nothing why Execution ought not to be done then the Sheriff shall be commanded to do execution Fitz. 266. c. And if the Sheriffe upon this Writ returne that he hath levied part of the summ viz. sixteen pounds part thereof which he hath delivered to the party now upon this return the party which ought to have the money may have a Sicut alias Levari facias directed to the Sheriff to levy the Residue of the summ Fitz. 265. h. Of Habere facias seisinam and Habere facias possessionem THere are other Writs of Execution which are necessary to be treated of viz. 1. Habere facias seisinam and 2. Habere facias possessionem Which Executions are for recovery of Land in a real action as Cap. ad sat fieri fac and Elegit are for Recovery of debt or damages in a personall action Co. 6. 51. F N B. 265. West 2. cap. 18. And first of the Habere facias seisinan which is a judicial Writ and lieth where one hath recovered certain lands in the Kings Court directed to the Sherif commanding him to put him in actual seisin of that Land which is done by delivering a bough of a tree or by a clod of the same land in the name of seisin c. and if the recovery be of a house then the Sherif may put him in seisin by delivering unto him the ring of a door or otherwise he may open the door saying to him Enter into the house and take seisin thereof by vertue and force of the recovery Perk. Sect. 206. 207. 208. F N. B. 220. 2. It is a Writ judicial and lieth where one was evicted from his farm and hath recovered it by Ejectione firmae or quare ejecit infra terminum it is directed to the Sheriff to command him to put the Plaintiffe in actual possession of the term again The Sheriff in executing both these two Writs may break the house and deliver seisin and possession thereof to the Plaintif But he cannot justifie the breaking a mans house to execute a Cap. ad satisfac or Fieri fac But where the Protector is a party there the Sheriff may justifie the breaking of the house to execute his Processe if they cannot be executed otherwise yet he must first request the opening of the door and withall signifie the cause of his comming F N B. 220. 221. Co. 5. 91. 6. 51. Dyer 278. Some select Cases which have not been yet published in any Treatise of this nature c. concerning Returnes of Writs where valid and good and where insufficient THis word Return hath a triple acceptation First as it is applied to the case of a Replevin and here it is called Returno habendo Secondly it is applied to the dayes of appearance in every term And thirdly it is applied to Sherifs and Bailifs and it is that which we are determined to handle And it is a Certificate made by the Sherif or Bailif to the Court from whence the Writ issued They ought to be very diligent in making true certain and perfect returns subscribing their names to them for if they make a false returne the party endamaged thereby may
the heire of the Lands and Tenements of the said A. Co. 3 15. Usually the omission of words make the return invalid as where the returne was The residue of this Writ appeares in a certaine schedule c. For the residue of the Execution of this Writ this is insufficient and vitious 19 H. 6. Fitz. Ret. 14. For by 3 H. 7. 11. a. Brook Ret. 88. the returne of the Sherif ought to be certaine to every intent and he is obliged to take knowledge of the Law in making his returne And therefore in a Scire facias to L. B. Master of the Free Grammer-school of Skipton c. and to the Scholars of the same c. he returned That he made knowne to the Master c. And did not say that he made known to L. B. Master c. And likewise he omitted Scholars which return was insufficient and void See Coo. 8. 127. 128. 10. E. 4. 15. The Sherif upon a Capias returned that he arrested the Defendant at S. and would have carried him to the Goal and that A. B. rescued him which return was holden invalid because he did not shew at what place A B. made the rescue for it shall not be intended the place where the arrest was ret 97. By the opinion of Iennie 3 E. 4. If a Writ be returned thus The answer of the Sheriff of C. and sheweth not the Sherifs name it is no good return 9 E. 4. 19. Br. 54 and by the 11 H. 7. 10. a. b. the name of the County ought to be entred in the margent or over the head of the return In a Scire facias the Sherif returneth I have made known to A. B. in manner and form as this Writ exacteth and requires and said not To the within named A. B. c. and yet this was holden per curiam to be good for note these words as this writ exacteth c. doth amount to the within named or the within mentioned or written See 2 H. 4. 13. and 3 H. 4. 9. Br. 28. Fitz. 44. Habere facias seisinam Upon a grant and render at the Plures the Sheriff did returne mandavi ballivo who did nothing because the parties to the Fine had nothing and the Writ of covenant was not sued in the Liberty nor came to him to be executed upon which a non omittas was awarded 8 E. 3. 12. upon the like writ the Sherif returned that he could do nothing by reason of the resistance of A B. others and he was amerced twenty marks because he did not take posse comitatus and an alias awarded and also a Writ to attach A. B. who was taken and pleaded not guilty and prayed a Writ against the Sheriffe to answer his false return Hil. 19 E. 2. Execution 147. Waste was assigned in W. the returne must not be That he came unto W. but that he came to the place wasted 27 H. 8. Br 2. The Sherif returned That by vertue of a Precept c. he took the body of A. B. c. and exception was taken because the return was not by vertue of a Writ c. yet it was holden to be a sufficient return for the Sherif may take one in Westminster Hall by the mandate of the Justices without any Writ The Sherif returned I have not found the party c. for he is not to be found and the party thereupon outlawed assigned this for Error and not to be amended Fitz 19. The Sheriff returned that he hath commanded the Bayliff of Slaincliff in the third person for I have commanded the Bailiff c. in the first person and was amerced for it 21. Ass 17. If a Sherif do not return a Capias in Processe the arrest is tortious and an action of false imprisonment lieth against him by him that was arrested and likewise the Plaintif shall have an action against him Littleton 18. E. 4. 9. Br. Trespass 339. Br. false imprisonment 5. 7. 12. But if a Capias ad satisfaciendum be not returned it is sufficient if the execution be duly executed and the Plaintif satisfied yet if he levy the money or debt but neither returneth the Writ nor payeth the money to the Plaintif he is chargeable to the Plaintif in an action of accompt c. and to the Defendant in an action of trespass Co. 5. 90. And the Plaintif may have his Execution renewed against the Defendant and the Defendant is left to his action against the Sherif Where a man hath liberty to return Writs as in the Honour of Pontefract in Yorkshire c. and to execute them c. if there the Sherif or his Officer shall enter the Liberty and execute any processe there the Lord of the Liberty shall have an action of the case against him Fitz. 95. b. In a Scire facias to execute a Judgment or Fine the Sherif must return the names of the Summoners 3 H. 7. 8. Br. Ret. 86. Upon the return of a Jury he is to return issues upon every person impannelled and returned by him ibidem Upon a Replevin the Sherif returned that the cattel were in such a strong place that he could not make deliverance for which return he was amerced because he might have taken Posse comitatus and so made deliverance Br. 119. or if he should return a resistance the like 13. E. 3. c. 39. In a Scire facias against the Husband and Wife the Sherif returneth that they are divorced and therefore amercied for Persons that are divorced may have garnishment quaere vide 1 H. 6. 2. Br. 63. Upon a Fieri fac against Executors the Sheriff returneth that they had sold the goods of the party deceased before the Writ purchased c. for which he was amerced for he should have taken other goods of the Executors to the value thereof c. 14 H. 4. 12. Br. 41. Upon a Fieri fac against Executors the Sheriff returned nulla bona c. and upon this return an entry was made in the Roll because that testatum est that the Executors had sold divers goods of the Testator and converted the money to their own use a Writ was awarded to the Sherif to enquire by the oaths of good men of his Bailiwick what goods which were the Testators the day of his death were wasted by the Executors by force of which Writ the Sherif had an Inquisition by which it was found that divers goods of the Testator to the value of the debt recovered were wasted by the Executors And this was returned in Court upon which the Plaintif sued a Scire facias against the Defendant to shew cause wherefore execution should not be awarded against the defendant of his own proper goods And upon two Nihils the Court awarded Execution Co. 5. 32. An Outlawry returned in London in these words At the Hustings holden in Guild Hall in the City of London such a day A.
Action brought For it was alleaged although a reprisall by fresh suit if it had been before the action brought would peradventure have excused him yet being after the Action brought so as the Plaintif at the time of the Action brought had good cause to have the Action the Reprisall after shall not excuse him and compared it to waste brought for Reparations which is amended pendant the Writ it shall not excuse him So here And in proof thereof were cited Coo. 3. fol. 52. Ridgeleyes case 23 E. 4. 8. 13 Edw. 3. tit Barr. 253. But against this it was argued That this reprisall being alleaged to be by fresh suite and before the plea pleaded is good for the time and he shall take advantage thereof to excuse the Escape For it is upon the matter no escape when shee was re-taken by fresh suit for that is a continuall pursuit and the Law shall adjuge her in prison always And it is not like the case of Waste For there nothing was done after the Waste committed before the Action and the Reparation hath not any relation nor is the continuance of any former Act but this Reprisall hath relation and makes it no escape ab initio As a Distresse taken for Rent and rescued and driven into another Mannor which is pursued and re-taken the party shall make his Avowry of the taking in the first place So here And it would otherwise be a great mischiese if an Escape should be against the wills of Sheriffs or keepers of Prisons by breach of prison or rescuing themselves before they be brought to prison or in their going thither and the prisoners be reprised within two or three dayes That an Action should be brought in the Interim against the Gaoler and that this Reprisall when he hath the prisoner before the plea should not be an excuse especially to the Marshall who hath multitude of prisoners and every day is to bring them unto the Hall by Habeas Corpus or Rules of Court If peradventure a Prisoner escapes and an Action be brought against the Marshall the same day before he can have any time to retake him If he should not be excused by the re-taking hee would be charged with a multitude of suits and could not have any remedy to excuse him And therefore it was compared to the pleading of a Fine levyed before the VVrit of Formedon and Proclamations incurred pendant the VVrit before the plea pleaded he well may take advantage thereof by pleading it although when the Writ was brought it was not compleat nor could be pleaded Vide 6 H. 7. 12. Secondly it was moved admitting this to be no plea yet the Action lyes not here because the Escape is of a Feme Covert where her Baron is subject to the Execution So the Plaintiffe hath not lost his debt for by intendment she might not have payd it if shee had layne in prison For shee had nothing but what was her Husbands and the Execution remaines yet against him Therefore Action of Debt lyes not because he is not totally deprived of his Debt but an Action upon the Case in respect of the damage And therefore it was said If one have Execution of a Statute of the Lands Goods and Body c. and the prisoner escapes Yet because the Lands remaine in Execution debt lyes not for the Escape but an Action upon the Case For at the Common Law an Action of Debt was not maintainable for an Escape but it is given by the Statute of 1 Richard 2. where the Debtor escapes But here the sole and principall Debtor did not escape for the Baron is the Principall and remained subject to the Execution vide 33 H. 6. 47. N. Br. 93. Regist fo 98. 4 H. 6. 6. Wherefore c. But the Court held that it was not any plea because the Action is brought and implyes a voluntary permission ire ad largum which is neither denyed or traversed And if the Sheriffe voluntarily lets a prisoner at large he cannot re-take him And so this Reprisall as is alleaged being after the Action brought is to no purpose nor is any plea. And for the Action of Debt they held that it well enough lyes or an Action upon the Case at his pleasure Because the Feme was onely committed to prison and not the Baron And shee is the sole Debtor who is imprisoned wherefore it was adjudged for the Plaintiff But note in as much as Escapes are so penall to Sheriffes Bayliffs of Liberties and Gaolers the reverend Judges of the Law have alwayes made a favourable construction as much as the Law will permit in favour of the Sheriffes Bayliffs of Liberties and Gaolers who are Officers and Ministers of Justice Co. 3. 44. Of Bayle what it is And where the Sheriffe may take Bayle and where not BAILE or Ballium is a safe keeping or protection and thereupon we say when a man upon surety is delivered out of prison traditur in ballium hee is delivered into bayle viz. Into their safe keeping or protection from prison before that he hath satisfied the Law it hath its originall or derivation from the French word Bailler and that also cometh from the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they both signifie to deliver into hand For he that is bayled is taken out of a Prison and delivered into the hands of his Friends who are his Sureties for his appearance at a certaine day to answer and be justified by the Law Sheriffs Under-sheriffs or other persons making any warrant for the summons arresting or attaching any person to appeare in any Court not having the originall Processe or Writ to warrant it upon examination and proofe thereof before the Judges of Assize or Judges of the Court c. such offender and their procurers shall be committed to the Goale there to remaine without baile untill they have paid amongst them 10 l. to the party grieved and his costs and damages as also 20 l. to the Protector 43 Eliz. c. 6. Such persons as are in Execution upon any Statute or Recognisance or upon judgement given in the Kings Court at the suit of any person they shall not be bailed until they have agreed with the Plaintiff 1 R. 2. c. 12. 23 H. 6. c. 10. F. N. B. 9. 121. a. Persons condemned in any of the Kings Courts and by vertue thereof committed to prison they shall not be bailed untill they have agreed with the Plaintiff 1 R. 2. c. 12. 2 H. 5. cap. 2. F. N. B. 121. a. If the Sheriffe doe let to baile any persons prohibited by the Stat. of Westm 1. cap. 15. to be bailed he shall be punished by the Justices of Goal-delivery according to the forme of the same Statute or the Justices may fine them as for an escape punishable at the Common Law 25 E. 3. 39. The Sheriff might at the Common Law have bailed a suspect of felony
Copy of the warrant upon the writ 00 00 04 For the returning of a Mandavi ballivo 00 00 04 For Writs of executions upon the Judgment upon bils sued in personal actions the debt or damage being under 40 s. 00 01 00 Upon Bils sued above 40 s. in actions personal for the return of every such bil 00 00 04 For every writ of Execution 00 02 00 For executing of every writ of Elegit in personal actions 00 06 08 In all reall or mixt actions sued by Original writ for return of every original writ 00 02 00 And for return of every other writ of Judicial processe depending upon the same before Judgment 00 02 00 And for every-Writ of Execution after Judgment upon every original in action real or mixt 00 02 00 For executing every Habere fac seisinam 00 06 08 For attachments upon Capias or other processe sued by Original or Judicial writ if the return be Cepi corpus 00 02 00 For a Reddidit se upon an Exigent of felony in appeale of murther or maim or upon an indictment of selony or murther 00 02 00 Upon a Reddidit se upon an Exigent of debt trespass detinue and all other actions personals 00 01 00 For the making of a Repleg 00 01 00 and Withernam upon the same 00 01 00 For return of every writ of appeal of murder felony or maim 00 01 00 And upon all Processe growing upon the same as Venire facias Tales Habeas corpora and Distringas 01 01 00 For every prisoner delivered by acquittal or by Proclamation for any manner of felony 00 01 00 For a Replevin 00 02 00 For the returne of a Recordare 00 00 04 For the return of an Accedas ad cur 00 00 00 For the allowance of a Supersedeas after the returne of the Exigent 00 02 00 The sheriffe is to be compounded and agreed with for these For executing of a Writ to enquire of Waste Also for executing a Writ to enquire of damages Likewise for executing a Statute For executing of a writ of Right For serving of a Writ de partition facienda For removing the over-charge of Common of pasture For enquiry upon an Elegit For Writs of forcible entry or holding with force whereupon the party amoved is to be restored to his possession For execution of a Judgement upon a Writ The Vnder-sheriffe of Middlesex useth to take these Fees following in the Court of Common Pleas. FOr a warrant for a Capias upon every name 00 00 04 For the return of a Venire facias 00 02 00 For a warrant upon a Capias utleg 00 00 04 For return of a Habeas corpora juratorum 00 04 00 For summoning the Jury for every name 00 00 04 For return of a Proclamation 00 01 00 For return of a Scire Facias 00 02 00 For return of a Nihil overat and Fieri facias 00 01 00 For executing an Exigent or execution upon body Lands goods and Chattels twelvepence for every twenty shillings where the summ exceeds not one hundred pounds and six pence for every twenty shillings where the summ exceeds one hundred pounds that is to say for every twenty shillings that he or they shall levy or extend and deliver in Execution or take the body in execution Of Sheriffs Accompts with a particular of some usuall Charges or Fees payd by them at the rendring of their Accompts THe Sheriff giveth his Accompts into the Exchequer and there is charged with his casualties which are all manner of Debts of Casualties and Relièss Fines Amerciaments upon the Sheriff debts recovered and such like as are drawn down either from any Record of any of the Remembrancers of the Exchequer or from any other matter ground or seisure of the Court. And the Sheriff musst answer to every summ charged upon him as he hath cause that is to say such a summ within such and such a Liberty and sheweth whose they be He is charged with old seizures which are Lands and Tenements seized before by his Predecessors upon the Processe of the Court and likewise with his own feizures which are Lands and Tenements seized in his own time by Processe of the Court and so addeth to these such Felons goods as he hath seized himselfe There the Sheriff hath such allowances as are allowed him by act of Parliament together with the Justices of Peace wages of his Shire out of the Fines and Forfeitures before the Justices of Peace thereof if the streat will bear them layd out before the Sheriffs for the Justices wages according to the Statute of the which allowance and of the particular names of the Justices the foreign opposer doth deliver a Roll into the Pipe for the Clerk of the Pipes warrant to allow the sames wages to the Sheriff After which things done viz allowance of all payments deductions and annual charges then hath he his Quietus est The fees are as follow Imprimis to his Attorney for his warrant of Attorney c. for his own sees and his mans sees and to another for entring the warrant 02 00 02 To the Punie-Baron for ministring the oath for the Apposel upon the summons of the Pipe his see for the Vicontels and his mans see for the same 01 07 00 To the Marshal Criers Tipstaves there 01 06 08 The fees of the foreign Opposer his men are 04 00 00 For his writ of assistance from his Attorney 00 05 06 His Attorneys sees in the Pipe and his mans fees 06 00 00 The sees of the Deputy of the Pipe 01 03 04 To the Controlier of the Pipe his man and other Officers of the Pipe 02 15 02 His Attorneys see in the Remembrancers Office and his mans fee 00 06 10 To the Master of the Wardrop for his see for a Talley to have thereby an allowance given for it and for joyning of that Talley in the Pipe 05 16 05 To the Master of the Pipe for his see 18 05 00 The foreign Opposers see for allowance of Justices wages to the Sheriffe upon the extracts of the peace and for the casting up of the Debet upon the Scedules of the Greenwax and to his men for their see 02 18 04 To the Auditor assigned for the Shire for declaring of the Accompt 12 00 00 To the Attorney of the Pipe for giving allowance of the Justices wages before allowed by the foreign opposer in the Sheriffs accompt and for the foot of the accompt to his man 02 06 08 To the Baron for declaring of the accompt and to his man for his see 00 08 08 To the Attorney in the Remembrancers Office for examining of the accompt and to one for the receiving of the accompt 00 05 00 For Copies of the seizures which the Sheriff makes himselfe in his year comonly at the least 05 00 00 For copies of the new seizures according to the number of them in some Counties but twenty shillings but most commonly in
said C. D. his Executors Administrators and Assignes and the moneys thereof and thereby recovered to have take and detaine to his and their owne use and uses without any account thereof to yield or make to the said A. B. his Heires Executors Administrators or Assigns all which said Bonds and Covenants except before excepted he the said A. B. doth for himselfe his Heires Executors Administrators and Assignes covenant promise grant and agree to and with the said C. D. his Executors and Administrators by these presents that neither he the said A. B. nor his Heirs Executors or Administrators or any of them shall release acquit nor discharge the said Bonds or Covenants nor any action plaint or suite thereupon to be brought or any judgement or execution thereupon to be had without the assent of the said C D. his Executors Administrators or Assignes unlesse he the said A. B. his Heires Executors or Administrators shall be enjoyned thereunto by order or course of Law or equity And the said C. D. doth for himselfe his Heires Executors and Administrators covenant promise and grant to and with the said A. B. his Heires Executors and Administrators by these presents that he the said C. D. his Executors and Administrators shall and will from time to time and at all times hereafter save defend and keep harmlesse the said A. B. his Heires Executors and Administrators and his and their lands tenements goods and chattels of and from all costs charges and damages which may arise and happen by reason of any bill in equity or of any Non-suit or judgment obtained by any person or persons of or upon any of the said Covenants Obligations or Bonds to be taken for appearance as aforesaid or by reason or meanes of removing any action or suit in the name of the said A. B. his Heires Executors or Administrators against any person or persons upon the same Covenants Obligations or any of them And whereas it is agreed by and between the said parties to these presents that the said C. D. shall become bound by obligation to the said A. B. in the penal summ of 500 l. conditioned for the true performance of the Covenants articles and agreements in these presents contained on the part and behalfe of him the said C. D. his heires executors and administrators to be performed and shall also procure five sufficient Sureties before the thirtieth day of Ianuary next ensuing the date hereof to become bound unto the said A. B. in the several penal summs of 100 l. a piece with the like conditions as aforesaid Now the said A. B. is contented and pleased doth by these presents for himselfe his heirs executors administrators and assigns covenant promise and grant to and with the said C. D. his heirs executors administrators and assigns by these presents that he the said A B. his heirs executors or administrators or some or one of them shall and will within the space of one year next after the said C. D. his heirs executors or administrators shall deliver or cause to be delivered unto the said A. B. his heirs executors administrators or assignes the said Quietus est before in these presents mentioned the said A. B. his heirs executors and administrators being first sufficiently and reasonably discharged and saved harmlesse of and from all the payments penalties fines amerciaments damages dangers and other demands before in these presents mentioned upon the reasonable request of the said C. D. his heirs executors or administrators shall deliver or cause to be delivered up the said Obligations so to be made by the Sureties of the said C. D. as aforesaid to such Suretie or Sureties respectively and to their respective heirs executors or administrators to be cancelled In witnesse whereof c. The form of the Condition THE CONDITION c. That whereas His Highnesse the Lord PROTECTOR c. by his Letters Patents bearing date the c. in the year of our Lord c. did apoint nominate and make the within named A. B. High Sheriffe of the County of York which said A. B. afterwards by his Indenture bearing date c. did ordaine depute constitute and make the within bounden C. D. his Deputy and Under Sheriffe of the said County of Y. as by the same Indenture more plainly at large doth and may appear If the said C. D. his heirs c. and every of them do at all times hereafter and from time to time for ever clearly acquit exonerate and discharge or otherwise sufficiently save and keep harmlesse the said A. B. his heires executors and administrators and every of them and his and their goods chattels lands tenements possessions and hereditaments and every of them and of and from all and every of the summ and summs of money wherewith the said A. B shall be charged by reason of the said office of Sheriffwick and shall fall out not to be answered upon the accompts and of and from all action and actions plaint or plaints or debt or debts that shall be commenced against the said A. B. his heires c. by reason of any escape or escapes committed of any prisoner or prisoners arrested and not committed to the common Goale of the said County or afterwards by the act or negligence of the said C. D. or any the Bailiffe or Bailiffes or any his servants or Deputies and of and from all actions suits costs losses damages hinderances and demands whatsoever which shall or may at any time or times hereafter come grow or be to or against the said A. B his c. on his or their goods chattels lands tenements possessions and hereditaments and every or any of them for or by reason of the premisses or any of them That then this present Obligation c. Or thus THE CONDITION c. That whereas the above named A. B. Sheriffe of the County of Y. hath assigned and deputed the above named C. D. his Under-Sheriff If therefore the said C. D. the above bound E. F. and H I. their heires executors and administrators and every of them do at all time and times hereafter save and keep harmlesse and indempnified as well the said A. B. his heires executors administrators and assignes and every of them as also the lands tenements hereditaments goods and chattels of the said A. B. of for touching and concerning the returns and executions of all such Processe Writs and Warrants of what nature soeverr they be as are or shall be hereafter directed to the Sheriffe of the said County of Y. and shall be brought and delivered or offered to be delivered to the said C. D. during the time that the said A. B. shall be Sheriffe of the said County And of and from all issues fines and amerciaments which shall happen to be imposed or taxed upon the said A. B. for and concerning the not executing wrongfull executing or detaining in his hands any Writs Processe or Warrants and of for and concerning all escapes
admittance may be ibid. T TYthing men 327 Tanners 335 Tracing of hares 338 Treasure trove 339 Tenants by Copy of Court-Roll are obliged to appear at every three weeks end at the Lords Court-Baron 345 Tenant at will and Copyholder 359 Tenant may have an action of Trespasse against the Lord 360 No tenant by the Curtesie or Dower shall be of Copyhold lands 361 V VErdict ambiguous and incertain no judgment ought to be given upon it 25 Part of the issue found and nothing for the residue insufficient ibid. Under-Sheriff what he is 210 He hath power to execute all the ordinary offices of the Sheriff that may be transferred by the Law c. ibid. The Sheriff must take good security of him c. ibid. Victuallers 334 Vnlawfull gains 336 W WItnesses who are suficient to give evidence and who are not 22 Withernam what with the proceedings upon it 35 Weights and Measures false 335 Watch and ward 339 Waifes 340 353 Wast what it is and how it is committed 350 A TABLE OF ALL THE PRESIDENTS Contained in this BOOK A ARticles betwixt the high Sheriff and a Bayliff of a Weapentake or Hundred 266 Appeale of Murther by the wife of him that is slain 297 Appeale by the heir of the person murthered 298 Appeale of Mayhme 299 Appeal of wounds ibid. Admission of the younger son to lands according to the custome 389 B BArgain and sale of Goods made by the Sheriff by vertue of his Office 277 Bond upon a Replevin vide Obligation Bond for the appearance in the County Court vide Obligation Bond to the Sheriff for ones appearance in the Common-Bench and another in the Vpper-Bench vide Obligation C CAse for not delivering of a pawn upon tender of the money borrowed 102 Against a Carrier for losse of goods delivered to him 103 For Coals promising to pay so much as they should reasonably be worth 104 For a horse sold warranted to be sound 105 For a horse lent promising to deliver him ibid. For adgysting of beasts 106 For curing a wound 107 For laborious hire 108 In consideration that the Plaintiffe would deliver unto one E. L. certain mercery wares if he did not pay for them the Defendant would 109 Slander for calling the Plaintiffe Thiefe c. 110 Same for calling the Plaintiff Bankrupt 111 In consideration that the Plaintiff would marry E. R. the Defendant promised to make him worth 200 l. 113 For stopping up of anothers light 114 For teaching the Defendants childe the Latine tongue 115 For Dyet and time given for payment of the debt 116 Vpon an Assumpsit to save one harmlesse upon an Obligation 117 For keeping a dog accustomed to bite sheep 118 Another ibid. Against an Inn-keeper for a horse lost ibid. Vpon a horse-race 119 Another upon a horse-race 122 For keeping a child and finding it meat drink and apparrel 123 For breach of Articles ibid. Vpon a promise for the loan of a Mare which was killed in riding 125 Vpon a promise to save harmlesse a Surety against a Bond 126 Detinue 128 Condition the form of it for the performance of the Indentures between the high-Sheriff and under-Sheriff 258 Another 259 and 260 Condition for executong of a Goalership 263 Another 265 Condition that the Sheriff executing a writ may detain out of the goods and lands extended so much money c. 276 D DIstringas or County warrant 37 Duces tecum 38 Decem tales 50 Deputation for a Bayliffe of a Hundred 53 Discharge to the Sheriff for a Prisoner from him to whom the Prisoner is indebted 275 Another ibid. Declarations in debt 88 Executor against an Executor ibid. Vpon a Bill to be paid at the day of Marriage and issue upon it 89 90 91 Vpon retainder for sheoing of horses 91 Vpon an Accompt 92 Money lent by joynt partners for a certain time and to be paid to the survivor ibid. For rent in arrear 93 For servants wages 94 For not setting forth of Tithes ibid. Vpon an award 95 For Attorneys Fees 96 Vpon a Lease for Tithes 97 Vpon a Bond where one is bound to two and one dies before the commencement of the Suite 98 Another upon the same ibid. Vpon a Bond for an Executor against Sisters as Co heirs one of them being married 99 Vpon a Bond against an Administrator during the minority of the Executor of an Executor 100 F FIeri facias against an Executor 44 Vpon a non suit for costs ibid. Vpon a Verdict for the Defendant 45 After a Scire facias against an Administrator upon a Verdict had against the intestate ibid. Fine in Court-Baron desired for respite of suit to be done 382 G GRant of a Bayliwick 348 Grant of a Stewardship 341 I INdorsement of such writs as are turned over to the new Sheriffe by the old Sheriffe 160 Indenture by a high-Sheriff deputing one to be his under-Sheriff 237 Another 246 Indenture for the setting over of Prisoners and Writs between two Sheriffs 261 Indenture for the Knights of the Parliament 262 Indenture upon choosing a Burgesse to serve in Parliament 263 Indenture of Covenants to a Sheriff to save him harmlesse for returning of a Devastavit against an Executor 272 Inquisition in man-slaughter 299 Inquisition in manslaughter where one was starved and perished for want of sustenance 301 Inquisition where one is slain by misfortune by a Cart loaden with hay 303 Inquisition where one by misfortune is slain by the fall of a scaffold 304 Inquisition where one drowns himselfe 305 Inquisition where one hangs himselfe ibid. L LIberate To deliver goods taken upon original or mean processe 50 Lease and Surrender made in Court with the examination of the Wife 385 Lease made by the Lord of parcel of his Lands 388 Licence by a Lord of a Manner to a Copyholder to pull down houses standing upon Copyhold lands 390 Letter of Attorney to surrender a Copyhold ibid. O OAth of the Jury in the County-Court and of the witnesses 24 Oath of the Coroner 51 Oath of an Attorney in the County Court 52 Oath of the Sheriff 235 Oath of the Foreman of a Coroners Inquest 289 Oath of witnesses before the Coroner 291 Oath of the Foreman of the Inquest in a Court-Leet 318 Oath of a Steward in a Leet 344 Oath of the Bayliffe in a Leet ibid. Oath of a Constable in a Leet 345 Oath of the Affeerer in a Leet 346 Oath of the Aletaster c. ibid. Oath of the Hayward Beadle or Greve 347 Oath of the Foreman of the Inquest in a Court-Baron 343 Oath of the Bayliffe of a Mannor 374 Obligation upon a Replevin 41 42 Obligation for an appearance in the County Court 52 53 Obligation entred to a Sheriff for ones appearance in the Common Bench 271 Another in the Vpper-Bench ibid. Order of the Judges of Assize at York concerning essoins illegally returned into the County Court 56 P PLeas He owes nothing 133 He made no such promise and Replication ibid. He made
summon witnesses 50 Sale of Goods to the Plaintiffe levied upon a Fieri facias by the Sheriffes Baliffe 53 Sale of Goods made by the Sheriffe by vertue of his Office 277 Surrender and remise of Lands made in Court before the Steward and the examination of the Wife 383 Surrender of Copyhold in Court with the admission of the tenant accordingly 384 Surrender and Lease made in Court with the examination of the wife 385 Surrender of Lands made in Mortgage upon condition for the payment of money with the admission of the Mortgagee by her Attorney and the Fealty respited ibid. Surrender of Lands made presently in Court 387 T TOit 42 Trover and Conversion 127 Trespasse for breaking down the Plaintiffs stall being set up in the Market 129 For breaking the Plaintiffs close ibid. For a Dog biting a Mare so that she dyed 130 For chasing of hogs with dogs ibid. For pasturing sheep in a rotten pasture by reason whereof they died ibid. For digging and plowing the Plaintiffs ground and taking away his corn 131 For taking away a post ibid. For eating the grasse cutting the hedges and assaulting the Plaintiff ibid. Trespass and assault 132 Assault upon one at under age ibid. V VEnditioni exponas 45 46 Venire facias Jurator 49 W WArrant upon a Writ of Justicies 39 Warrant upon a Proclamation 51 Warrant of Attorney for an appearance in the County Court 52 Warrant upon Accedeas ad Curiam 64 Warrant of a Coroner for the impannelling of a Jury 288 Warrant to summon a Leet 316 Withernam 40 Alias capias in Withernam 41 FINIS Courteous Reader These Books following are Printed for John Place and are to be sold at his Shop at Furnivals inne Gate in Holborn Books in Folio 1. THe History of the World by Sir Walter Raleigh Knight 2. Observations on Caesars Commentaries by Sir Clement Edmunds Knight 3. Sheppards Epitomy of the Law 4. The Reports of the learned Judge Popham sometime Lord chiese Justice of England 5. The Reports of the Learned Judge Owen chiefe Iustice of the Common Pleas 6. Londinopolis or a History of the Cities of London and Westminster by James Howell 7. The History of Swedes Goths and Vandals by Olaus Magnus Bishop of Vpsall 8. The Reports of the learned Sarjeant Bridgeman 9. Cowells Interpreter of hard words in the Law c. 10. Maximes of Reason or the Reason of the Common Law by Edward Wingate Esquire late one of the Benchers of Grays-Inne 11. The History of Edward the Fourth of the Wars between the Houses of York and Lancaster by W. H. Esquire 12. The Minister of State wherein is shewed the true use of Policy by Monsieur de Siton Secretary to Cardinal Richlew Englished by Sir Henry Herbert Knight Books in Quarto 1. The Compleat Clerk or Scriveners Guide containing the Draughts of all manner of Presidents of Assurances and Instruments now in use as they were penned by the most eminent Lawyers 2. Commentaries on the Original Writs in Natura brevium 3. An exact Abridgment of the Common-Law with the Cases thereof drawn out of the old and new Books of the Law both by William Hughes of Grays-Inne Esquire 4. An exact Abridgment of the Acts Ordinances of Parl. begining at the fourth year of King Charls to the year 1656. 5. Declarations and Pleadings c. in the Upper-Bench by Will. Small of Furnivals Inne late one of the Clerks in the Upper-Bench 6. Declarations Counts and Pleadings in the Common Pleas by Ric. Brownlow Esq late Prothonotary The second part 7. Regni argumenta Consilii or a collection of Authentick Arguments in Parliament humbly presented to the view and use of this present Session 8. The floating Island by Dr. Strowd acted at Oxford 9. The Tragedy of the fair I ene the Greek by Gilbert Sumhoe Esq Books in Octavo 1. The Iurisdiction of Courts by John Kitchin of Barnards Inne 2. Books of Entries of all manner of Judgments in the Upper-Bench and Common-Pleas 3. The Grounds and Maxims of the Law by Michael Haulk of the Middle Temple 4. A perfect Guide for a studious young Lawyer by Thomas Fidell of Furnivals Inne Gent 5. The Arraignment of the Anabaptists in a Dispute at Abergavenny in Monmouthshire by Iohn Cragge M. A. 6. A Cabinet of Jewels wherein Gods Mercy Mans misery c. is set forth in S Sermons with an Appendix of the nature of Tithes and expedience of Marriage by a lawful Minister by Iohn Cragge M. A. 1. The Abridgment of the Lord Dyers Reports by Sir Tho. Ireland 2 Observations on the Office of a Lord Chancellor by the Lord Elsemore late Lord Chancellor 3. The Laymans Lawyer or the second part of the Practick part of the Law by Tho. Foster Gent. 1. The Laws of Corporations Fraternities and Guilds by W. Sheppard Sarjeant at Law 2. Transactions of the High Court of Chancery by W. Tochel 3. Brooks Cases in English by I. Marsh of Grayes Inn Barrester 4. Poems by Matthew Stevenson 5. Perkins of the Lawes of England 6. An exact Abridgment of Doctor and Student 7. Invisible World and the Mystery of Godlinesse 8. Imposition of Hands both by Ioseph Hall Bishop of Norwich 9. Clarastella by R. Heath Esquire 10. Doctor Prestons Saints Infirmities 11. A Catechism containing the Principles of Christian Religion written by Moses Wall 12 The whole Survey of a Justice of Peace his Office by W. S. Sarjeant at Law FINIS Lambert arch This Court no Court of Record * Hengham f. 8. cap. 2. placita vero de furtis melletis hutesio plagis verberibus transgressionibus ubi non agitur de pace domini Regis fracta ad Vicecomites pertinent audienda determinanda See Seldens Notes upon it f 135 136 137 138 139 140. Likewise Sir Henry Spelmans Glossarie fol. 18. 438. LL. Edovar Confess cap. 12. Chimini vero minores de Civitate ad Civitatem ducentes de burgis ad burgos per quos mercata vehuntur caetera negotia fiunt sub lege Comitatus sunt c. Why instituted The time when it is to be holden Co. Inst 4. cap. 55. Where to be kept St. anno 2 E. 6. cap. 25. Stat. 15 H. 7. cap. 24. 33 H. 8. c. 26. No Fine Amercement What actions will not lye in this Court Exigents and Proclamations to be proclaimed five County dayes F. N. B. 163. idem 395. Bract. l 3. f. 98. Fleta l. 1. cap. 15. 31 Eliz. cap. 5. Appearance Essoyn Duc. tec. Declaration Modo forma Nota. Modo forma 27 H. 8. fo 29. Count. Non-suit Empartance Continuance Rule Answer Replication Rejoynder Sur-rejoynder 〈…〉 rrer C◠Inst 1. fo 7. b. Nota. Not informed Nil dicit Generall issues Pleas specially to be pleaded Obligation Debt Against Executors or Administrators Non-age Woman covert Arbitrament Trespasse Damage feasant Rent Detinue Slander Warranty Debt Demise Trespass Nota. Liberum tenementum or Freehold Nota. Et hoc paratus est verificare Et