them doth onely drive the defendant to make a better answer which is called a respondes ouster if it passe against him CHAP. 42. Appearance Continuance mesne processe I. THus far concerning pleading the other mean acts are appearance and continuance or judicial processe II. Appearance is the parties coming into the Court where upon common day given the fourth day after the very day is allowed III. When the defendant appears not as he ought he is said to make default IV. When the partie for not appearing should have some great losse or corporal pain he may appear though the Officers return force him not to it V. If the Plaintiffe will not appear when he is demanded at the day which is termed a Non-suit or say in Court that he will not sue forwards which is a retraxit this is peremptory and looseth him his Action VI. But in real Actions brought by many if one will not prosecute the rest may alone except in a writ 〈◊〉 nativo habendo and that is in favorem libertatis VII For executors also summons and severance lieâ— in personal actions VIII If the defendant will not plead which is caâ—led a Nihil dicit this in all actions is peremptory 〈◊〉 looseth the action IX So in personal Actions if he appear and afteâ— plea or demurrer joyned make default this is alâ—â— peremptory and imports a Nihil dicit X. Howbeit either of the parties may for once be excused of appearance if they demand it the first day or any of the four dayes unlesse the other enter an exceception that no Essoyn be received XI Also upon every mean appearance a new Essoin lieth XII And this is called an Essoin de mal venir or the common Essoin XIII Besides this Essoyn there are divers other for speciall causes allowed as of being beyond sea of going ad terram sanctam of the Kings service and de malo lecti XIV These last have a year and a dayes adjournment where upon an oath must be taken that the cause is true XV. But no such special Essoin lieth in an Assize of novel disseisin Dower Assize of Darrein presentment and Quare impedit XVI Continuance is from day to day till the end of the suit XVII Here if the Plaintiffe do nothing it is called a discontinuance XVIII and if any error be in the continuing as by awarding a Capias where a distresse should be it is called a miscontinuance XIX The suit of an excommunicate person shall be put without day termed parol sans Jour till he be absolved XX. So it is also in all other cases which happen without the Plaintiffes folly XXI After continuance taken the defendant may for once leave his former plea and plead any thing growing since this latter continuance XXII Continuance is by processe or upon the Roll. XXIII That upon a Roll is the dies datus or Emparlance XXIV Dies datus when the Court giveth thâ— parties day and this is alwayes before the Count. XXV Such a continuance by assent of both the parties is called a Prece partium XXVI But in Assizes the continuance is by a Justiciarii nondum avisantur and not by a Dies datus XXVII Emparlance is when the defendant demandeth day to see if he may end the matter without further suit which he may do once but not ofteâ— without the Plaintiffes consent and this is alwayeâ— after the Count. XXVIII After Emparlance he cannot plead iâ— the Jurisdiction or person neither yet in abatement either of the Count or writ nor demand Oyer of an Obligation or the like XXIX But after a special Emparlance Salvis oâ—nibus advantagiis he may plead to the Count or writ and also have Oyer but not to the Jurisdiction 〈◊〉 person XXX In an appeal that toucheth life if the defendant plead a plea whereby his life should come 〈◊〉 jeopardie the Plaintiffe shall not imparle unto it bâ—â— must answer sedente curia XXXI Default after Emparlance is peremptory and looseth the action in all actions reall and persâ—nall XXXII Judicial processe is a processe out of the Court where the original is returned prosecuting 〈◊〉 Action XXXIII Judicial processe are mesne processe 〈◊〉 in nature of new originals XXXIV Mesne processe which is for any necesary act to be done not onely for the Plaintiffe against thâ— defendant but for either of them against any otheâ— whose presence in the Court may be necessary for them XXXV Upon a fine levied before it be engrossed the writs to compel attornment are XXXVI Per quae servitia when the fine is levied of a Seigniorie XXXVII Quem redditum reddit when it is of a rent charge or rent seek XXXVIII Quid juris clamat when it is of a remainder or Reversion XXXIX In Petitions or whatsoever the King being made partie may be at losse A writ of search lieth which is to search in the Treasurie before the plea prooeed if by likelihood some matter may be found there to maintain his title XL. In real Praecipes where a freehold is to be recovered upon default after plea issue or demurrer a Petit Cape shall go forth to cause the tenant to answer to the default onely XLI So upon a voucher a Petit cape ad valentiam XLII In such as are for other hereditaments save in point of Seigniorie as annuity Quare impedit Quo jure Quod permittat c. upon default as before a distresse shall go forth in lieu of a Petit cape XLIII The processe against jurors is a venire facias to the Sheriffe to return them at which day if they appear not then a Habeas corpora and after that a distresse infinite XLIV In an action of trespasse alwayes whatsoever the issue be release justification c. and in debt detinue account and other personal actions which are for things in certain if the issue be taken upon matter in fait onely and the defendant make default the jury shall be taken XLV But if it be upon matter in writing the plaintiffe may there pray judgment if he will howbeit if he do not pray it the Jury shall be taken by default as in action of trespasse XLVI But in Assizes of novel disseisin nusancâ— Mordancestor Darrein presentment and Juris umeâ— the original writ commandeth a jurie as well as thâ— defendant to be warned which summons to the jurie seâ—veth in stead of a venire facias so that the processe herâ— against the jury is Summons Habeas corpor dâ—stringas XLVII And therefore here upon default afteâ— that original processe ended viz. the Atachments an Assize of novel disseisin and nusance and the summons and re-summons in a mordancestor Darrein resentment and Juris utrum the enquest shall be takeâ— by default CHAP. 43. Commandatorie Judicial processe in the naturâ— of new originals 1. THus far of mesne process Judicial process in thâ— nature of new originals in none of which 〈◊〉 II. Freehold shall ever be recovered but damageâ— onely are
the Inheritance though he be prayed in aid and make default VII For after the death of tenant for life he may falsifie it by action of ad terminum qui preteriit or writ of right which is called falsifying of a recovery VIII In a writ of Dower feme Guardian in soccage against Guardian by Knight service she shal at his prayer be adjudged to endow her self wholy of the land in soccage and this is called Dower de la plus beale IX A debt acknowledged in a Court of Record either to the King or a common person is in the nature of a judgment and called a Recognizance X. In appeals of mayhem and in Indictments or appeals of felony the accessory shall not be compelled to answer till attainder of all the principals XI He that is or by possibility may be within Orders namely a Deacon at the least may have the benefit of his Clergy if he be found culpable of any bare-felonie where life and member is to be lost XII This possibility there being no other impediment shall be tried by the judges by his ablenesse to read a verse XIII Clergy is the delivering of him to the Ordinary to be kept in prison XIV If it be before judgment in which case he is called a Clerk convict he shall be tried there by a jury of Clerks and therefore purging himself shall goe at large XV. Not purging himself but being found culpable by those Clerks he shall be only degraded XVI But upon an appeal no purgation shall be allowed XVII A Clerk convict shall answer to any offence committed before XVIII A Clerk convict forfeiteth his chattells XIX Notice must be given to the King of the time before the party make purgation XX. If the Clergy be after judgment in which case he is called a Clerk-attaint he shall remain in perpetuall prison XXI Outlawry is a judgment in it self XXII So is abâ—uration XXIII The offender upon a presentment in a Leet or Sheriffs turn shall be amercied XXIV The Defendant in an appeal of felony being acquitted shall have iudgment also to recover damages against the Plaintiff XXV The Plaintiff recovering in a suit shall be allowed his costs XXVI These judgments have their judiciall Writs belonging to them both meer judiciall writs for the execution of them and new originalls in the nature of iudiciall writs to undo some matters concerning iudgments XXVII Meer judiciall Writs in reall or personall actions are either such as lie only within the year and day after the judgment rendred or a Scire facias XXVIII Those of the first sort are between the partie to the recovery and in the same Court where the recovery was XXIX Of this kind are upon recovery in reall and mixt actions XXX Habere facias seisinam to put him in possession upon a freehold recovered in an Assize Precipe quod reddat c. XXXI A writ to the Bishop to admit ones Clerk upon a presentation recovered in a Quare impedit or Assize of Darrein presentment XXXII Those upon a recovery in personal actions are of two sorts viz. to have execution of his possessions or against his body XXXIII .. Execution of his possessions is either of his lands or chattels or both XXXIV That of the land is either of the land it self or of profits out of the land XXXV Execution of the land it self is an Habere facias possessionem upon a term of years recovered in an Ejectione firmae c. XXXVI Executions of his chattels is a Fieri facias to levie execution of his goods and chattels onely XXXVII Execution of his lands and chattels is a Levari facias to levie execution of the profits of his lands and chattels XXXVIII Here execution shall be of any land which the party had the day of the judgment rendred but for chattels though it be a lease for years onely those which he had the day of the execution sued XXXIX But in Court Barons execution is onely by distresse and impounding till the party be satisfied XL. The King may have a distringas to levie an amerciament or such like by distresse and sale whether it be an amerciament in the Leet or Sheriffs turn or otherwise XLI Execution against the body is a Capias ad satisfaciendum to take the body in execution for satisfying of the partie XLII This is onely in a personal action where a Capias lay XLIII Here an Exigent shall be awarded upon the first Capias XLIV Of this nature are two speciall writs by the Kings Prerogatory Capias pro fine Regis and Capias utlagatum XLV Capias pro fine when the partie is adjudged to pay a fine to the King XLVI Capias utlagatum to take one that is outlawed XLVII These are the judicial writs within the year and day XLVIII A Scire facias is to warn the defendant upon recovery in real actions to shew cause why the plaintiffe should not have execution XLIX Here upon a Nihil returned execution shall be presently against the parties to the Judgement L. In case of life the Judge may command execution to be done without any writ LI. A woman quick with child shall for once anâ— no more be respited execution LII Here the trial shall be by a Jury of women and the writ for it is called A writ De Ventre inspiâ—endo CHAP. 47. A writ of Errour False Judgment Attaint Audita Querela I. THe new originals in the nature of judicial writs to undo some matters concerning Judgements are either writs grounded upon Errour or an Attaint and Audita querela II. Writs grounded upon Errour are a writ of Errour and false Judgment III. Both these lie upon any errour in the proceeding IV. But errour in processe may the same term be reformed in the same Court V. The processe here is a Scire facias VI. The party bringing a writ to reverse errour in the Judgment may have a super-sedeas to stay execution till the errour be discussed VII A Writ of Errour is upon an errour in a Court of Record VIII This may be sued in the Kings Bench or Parliament IX In the Kings Bench when the errour is in the Common place or other inferior Court of Record X In the parliament when the errour is in the Kings Bench and this is returnable before the King and the Lords onely XI A writ of false Judgement is upon errour in a base Court XII An Attaint is to enquire whether a Jurie of twelve men gave a false verdict XIII This must be brought in the life of him for whom it passeth and of some of them that gave it XIV It lieth onely in personal actions other then trespasses XV. The Jury here called the Grand-Jury are twenty four who are to be warned the first day XVI The processe against the party is summons re-summons as in Mortdancestor c. XVII The processe against the petty Jury is Venire facias and distresse XVIII The petty jury must be all present
seller c. shall forfeit the value of the land and likewise the buyer knowing the same provided he that is in lawfull possession by taking the yearly profits may buy c. anothers pretenced right c. Rule 7. Stat. 6. R. 2. 2. Debt accompt and all such actions shall be brought in the County where the contract c. was made Rule 16. Stat. 1. E. 6. 7. The Acceptance of a new name of dignity shall not abate the writ CHAP. 24. Rule 6. MErton 8. 20. H. 3. Seisin of ones Ancestor in a writ of right shall be from the time of H 2. In a Mortdancester writ of Nief and of entry from the last return of King John out of Ireland In an Assize of novel disseisin from Henry 3. his first passage into Gasciogne West 1. 38. 3. E 1. Seisin of ones ancestor in a writ of right shall be from the time of Richard the first In an Assize of novel disseisin and Nuper obiit from H. 3. his first passage into Gascoigne In a Mortdancester Cosinage Aywel entry and writ of Niefe from H. 3. his Coronation Stat. 32. H. 8. 2. Seisin in a writ of right shall be within 60 yeares In a Mortdancester or any other possessory action upon the possession of his ancestor or predecessor shall be within 50 yeares A writ of the possession of the Plaintiff himselfe shall be within 30 years An avowry or cognizance for rent suit or services of the seisin of his Ancestor or of his own shall be within 40 years Formedons in reverter or remainder and Scire facias upon fines shall be sued within 50 years after the title or cause of action accrued Stat. 1 M. 1. Parl. 2. sess 5. The statute of 32 H. 8. 2. shall not extend to a writ of right of advowson Quare impedit Assize of Darrein presentment Jure patronasus writ of right of ward writ of ravishment of ward nor to the seiser of the wards body or Estate but the time of the seisin to be alleadged in such cases shall be as it was in the Common Law before the making of the sayd statute Stat. 21. Jac. 2. The time of prescription for lands concealed from the King is sixty years before the making of that statute Stat. 1. Jac 16. In writs of Formedon in descender remainder and reverter and right of entry the time is 20 years after accruer and imperfections removed Rule 6. Stat. 25 E. 3 stat 5. 16. Non-tenure shall not abate the writ but only for the quantity Stat. 37. E. 3. 17. No writ shall be abated by acknowledgment of villeinage if the demandant or Plaintiffe will averr that he that alleadgeth the exception was freed the day of the Writ purchased CHAP. 26. Rule 4. WEstm 2. 2 13 E. 1. A Gui in vita given to the wife after her husbands death upon his loosing of the land by default and the Tenant that recovered against the husband must maintain his own right CHAP. 27. Rule 4. WEstm 2 20. In a Writ of Cosinage Ayel and Besayel the point shall be inquired whether the demandant be next heir as well as in a Mortdancestor Rule 10. Westm 2. 1. 13. E. 1. A formedon in Descender is also given by this Statute to the heir in tail upon a descent from his Ancestor dying seised of the estate tail Rule 12. Merton 1 20 H. 3. A woman deforced of her dower or Quarentine shall in a writ of Dower recover damages viz. the value of her Dower from her husbands death to the day of the recovery of her Dower and the deforceor shall be amercied Westm 1. 48. 3. E. 1. A writ of Dower unde nihil habet shal not abate though she have received part of her Dower before the writ purchased unlesse it were of the same party against whom the writ was brought and in the same Town Westm 2. 4. 13. E. 1. In place of a writ of right a Quod ei deforceat is given to tenant in Dower for life by the coutresie in Frank-marriage and in tail upon losing by default CHAP. 28. Rule 2. Marlebr 7 52. H. 3. In a writ de communi Custodia if the deforceor come not at the grand distresse the writ shall be renewed as often as may be within half a year and every time read and claimed in the county-court and if he come not in to answer nor the Sheriffe finde him within that halfe yeare he shall lose the Ward saving his action another time if he have right Westm 2. 35. 13. E. 1. In a writ of ward of land or heir or both either of the parties dying before the plea determined a re-summons shall be And in the grand distresse day must be given that three County dayes may be held before the returne in every of which Proclamation shall be made whereupon if the defendant appear not judgement shall be given for the plaintiff saving the right of the defendant if afterwards he will claim it So shall it be done also in a writ of ejectment of ward Rule 6. Westm 2. 2. 13. E. 1. If the tenant disclaim in the County-Court or other Court not of Record the Lord may remove the plea before the Justices to cause it to be of Record so as he may have a writ of right sur dlsclaimer Glocester 4. 6. E. 1. Explanat 4 When land is given in Fee farme rendering or doing so much as amounteth to the fourth part of the value of the land if he whose land is charged let it lye fresh by two years so as no distresse can be found in it nor render or do that which is contained in the writing the other shall recover the land by a Cessavit but the tenant coming before judgment if he render the arrerages and damages and finde sufficient to do from thenceforth that which is contained in the writing shal retain his land Westm 2. 21. 13. E. 1. If a man detain from his Lord his service due by two years the Lord shall recover the land by a Cessavit This lyeth also for the Lords heir against the tenant his heirs and Alience Westm 2 41. If religious houses that have land given c. withdraw the Almes c. by two years the donor shall have the like action CHAP. 29. Rule 7. MArlbr 9. 52. H. 3. The processe in a Sella ad molendinum is attachment venire facias and the grand distresse see also there the order of proceeding in that action Rule 9. Stat. 25. E. 3 Stat. 3. 3 tht Kings Collation to a benefice being found before Judgment to be untrue shall be repealed Marlbr 12. 52. H. the processe in a Quare impedit shall be Summons Attachment and Grand distresse Westm 5. 13. E. 1. A Coparcener being disturbed after Partition shall have a Scire facias and shall not be put to a Quare impedit If tenant in Dower or by the courtesie have presented the reversioner being disturbed shall have a Quare impedit
regnum TABLE 40. The Proceeding which consists in The Count or Declaration The pleading which Pleas are The Defendants first Pleas viz. Dilatory by taking Exceptions In disability To the jurisdiction of the Court. To the person In Abatement To the Writ as default of form false Latine c. and here if the default be not caused by the Plaintiff a new Writ may be had by Journies Accounts To the Count as insufficiency variance from the Writ c. Forraign advantages In all Actions as Oyer of the Writ Condition c. In real Actions as View Ayde-prayer Voucher In certain personall Actions Garnishment Enter pleader which may also be in a Quare impedit Sanctuary and there continuing viz. for Treason and other Capitall Offences To the action as Pleas in Bar Confessions to which place Abjuration may be referred when one guilty of bare Felony flyeth to the Church c and there before the Coroner confesseth the Fact and abjures the Realm The mutual pleas of Plaintiff Defen Tab 41 Other mean Acts Tab 42. TABLE 41. The mutual Pleas of Plaintif and Defendant viz. The delating before issue as Replication Rejoynder Sur-rejoynder c. The Issue it self Of the Fact and then the tryall is 1 Of a matter done in the Country by Jury where challenges are allowed viz. To the Array To the Poles 2 In Writs of right or appeals for life by Battail 3. In a Writ of Dower when the issue is taken upon the death of her husband by witnesse 4. By wager of Law 1. When the Tenant in a reall praecipe quod readâ— was not summoned 2. In meer personal actions growing without deed or privity of others 3. In Plaints in Counâ— Barons Of the Law as a Demurrer which iâ— when admitting the matters alledged either of them resteth in thâ— Judgment of the Law TABLE 42. Other mean Acts as 1. Apparance where of essoins which are Common as Essoine de mal venir Speciall 1. Of going beyond Sea 2. Of going ad terram Sanctam 3. Of the Kings Service 4. Demalo lecti 2. Continuance By Process Upon the Roll Dies datus Emparlance 3. Judiciall process A Mesne processe which is for any necessary act to be done as against Vouchee Prayee in aide also 1. Upon a fine levied to compell Attornment as 1 Per quae servitia 2. Quem redditum reddit 3. Quid juris clamat 2 In Petitions a Writ of search 3. In real praecipe upon a default petty Cape 4. Upon default after Voucher a petty Cape ad valentiam 5. In such as are for other Hereditaments upon default a distress 6. Against Jurors 1. A Venire facias 2. A Habeas Corpora 3. A Distress infinite Processe in nature of new Originals Tab 43. TABLE 43. Process in the nature of new Originalls they are Commandatory viz. such as command something to be done 1 Resummons Re-attachment 2 All certificatory Writs 3 A Certiorari to remove a Record into the Chancery 4. Writs to remove Suits By Writ as a Tolt to remove a Writ of right out of the Lords into the County-Court Pone to remove out of the Lords Court into the common place in all other causes By Plaint as a Recordare to remove Plaints in the County-Court Accedas ad curiam to remove Plâ—ints in a Court-Baron 5 A Miâ—timus to send a Record out of the Chancery into another Court of Record 6 A Procedendo to proceed in Suits 7 A Consultation to proceed in the Spirituall Court 8 A Writ of Main-prise to set one at liberty upon Bail 9 A Recaption for him whose Goods are distrained for the same thing 10. A Writ de Magna Assisa eligenda 11 A Certificate of Assise to Jurors to give a more perfect Verdict 12 A Proprietate probanda Prohibitory Writs Tab 45. TABLE 45. Prohibitory VVrits or Proces as 1. Prohibitions of this kind is an Indicavit 2. A Supersedeas of which kind are 1. A VVrit of Peace 2. A Libertate probanda 3. An Identitate nominis 3. Protections Cum clausula uolumus as Protectio quia profecturus Protectio quia moratur whither also may be referred Protectio quia in prisona 4. Essoine de malo lecti 5. A Ne admittas 6. A Quare incumbravit TABLE 46 Judgment which hath Judicial Writs belonging to it viz. Meer Judiciall and they are Such as lye within a year and a day after the Judgment In reall actions 1. Habere facias seisinam to puâ— him in possession upon a Free-hold recovered 2. A Writ to the Bishop to admit ones Clerk In personall Actions to have Execution of his Possessions as 1. Fieri facias to levy execution upon his Chattels 2. Levari facias to levie execution of the profiâ—â— of his Land and Chattels 3. Habere facias possessionem upon recovery of a term for years in aâ— Ejectione firmae c. 4. A Distringas for the Kings Amerciaments c. Bodily as Capias ad satisfacienduâ— Capias pro fine Regis Capias Utlagatum For the King A Scire facias to warn the Defendanâ— afteâ— a year upon recovery in real Actions to shew cause why the Plaintiff should not have Execution New Originals Tab. 47. TABLE 47. New Originals in the nature of Judiciall Writs to order some matters concerning Judgments and these are grounded Upon an Error A Writ of Error which is upon an Error in a Court of Record A VVrit of false Judgment which is upon an Error in a base Court Otherwise as Attaint which is to enquire whether a Jury of twelve men gave a false Verdict Audita querela which is for one being or to be in Execution to releive him upon good matter of discharge which he hath no means to plead A TABLE shewing the Pages in the English Copy of Sir Henry Finches Treatise of the Law from whence each Tablet takes it's beginning Table Page 1 77 2 95 3 106 4 111 5 116 6 130 7 134 8 155 9 159 10 164 11 167 12 184 13 190 14 198 15 205 16 These are taken out of the French Copy being omitted in the English 17 18 19 20 206 21 218 22 221 23 225 24 249 25 252 26 264 27 266 28 269 29 272 30 284 31 294 32 303 33 310 34 312 35 320 36 322 37 343 38 490 39 502 40 356 41 390 42 427 43 441 44 446 45 450 46 459 47 478 FINIS
Court of Pipowders is a Court of Record incident to Faires and Markets for all Actions arising there and the suit must at the same time be commenced LXI The King by commission under his Letters Patents may erect other Courts at his pleasure LXII Such were Justices in Eyre and such are Courts of Record in Corporations and other places by speciall Charter LXIII These are the Courts of Record a Court Baron is the Court of a common person LXIV This Court is for personal accompts under forty shillings LXV These cannot be kept oftner then every three weeks LXVI The processe here is by precept to the Bailiffe LXVII The Suitors are the Judges LXVIII A Court-Baron is the Lords or a County-Court LXIX The Lords Court is either of a particular Mannor or of an whole Hundred XXX The Hundred Court is that whereunto all the Inhabitants within the Hundred owe suit LXX The County Court which is incident to the Sheriffe and hath Jurisdiction over the whole County CHAP. 23 Suits Original Writs Petitions I. OF an Action there be two parts the suit and the judgment II. Suit is the parties dealing in the Action III. Here for their help they are allowed Counceâ— learned in the law IV. The Suit hath two parts the beginning and the proceeding V. The beginning is the proper duty of the Plaintiffe VI This also hath two parts the first matter of the suit and the originall processe VII The first matter of the suit must alwayes be brought into that County where the cause of Suiâ— groweth VIII The first matter of the suit is for every man by writ out of the Chancery or in Courts where writs lie not by Plaint or Bill for the King alone by Inquiry IX· In all of the first kinde the Plaintiffe must finde surety by some that will be his pledges to prosecute the suit X. And these may be either to the Officer or to the Court where the suit is XI A poor man in stead of sureties shal give his faith to prosecute it XII Writs that begin the suit are original or commissionall XIII Original which appoint the first Processe 〈◊〉 the Plaintiffe finde pledges returnable in the Kings Bench or Common Place XIV This must be true Latine and also formal XV. And it must expresse the name of Baptisme and Sir-name or in lieu thereof the name of dignity both of the Plaintiffe and Defendant XVI Where there be many of one name diversity of the names must be put by addition of Elder younger and the like XVII The Kings servants in his Court or others by special grace of the Chancellor may here be admitted to finde pledges in the Chancery XVIII Writs original are concerning Common pleas or appeals that concern life XIX Those that concern common pleas lie not for or against a feme covert without her husband XX. Many having or giving joyntly cause of Action may sue or be sued together in one XXI Severall Actions of one nature may be joyned in one originall with severall Praecipes or commandements to be executed XXII Here in place of action against the King Petition must be made unto him in the Chancery XXIII And that in case of hereditaments though the King have granted the same away XXIV Whereupon processe shall go out against the Grantee to maintain his title XXV But whilst personall things seised for the King remain in the Officers hands the party that hath right may sue the officer or disturb him to take the profits XXVI Petition is a supplication declaring the parties right where mention must be made of all the Kings title XXVII The writs which concern common pleas are Real or personal and they both are again Praecipes or Si fecerit te securum XXVIII A praecipe is that which willeth the Sheriffe to command the Defendant to do somewhat in certain that the Plaintiff sueth for which if he do not then to serve the first Process XXIX The form hereof is Praecipe A quod reddat B c. Et nisi fecerit c tunc summon c. XXX A Praecipe is a Praecipe quod reddat or a Praecipe quod faciat XXXI A Praecipe quod reddat which lieth for things in render XXXII A Praecipe quod faciat which lieth for things not in render viz. in Fesance as a Writ de consuâ—tudinibus servitiis secta ad molendinam c. or sufferance as a Quod permittat c. XXXIII A Si fecerit to securum is that which willeth the first process to be served without more ado XXXIV The form hereof is Si A fecerit te securum de clamore suo prosequendo tunc summon c. CHAP 24. Actions reall I. REall Actions where a Free-hold shall be recoveed are Possessory or in the right II. Possessory which are to recover a Possession III. In the right which are to recover a Possession mixt with the right IV. And both these mâ—y be of a possession or right in himself or descended from his Ancestor V Reall Actions in the right are either founded upon the right or for the meer right VI. Reall Actions where the Free-hold shall be recovered lye only against the Tenant of the Freehold VII With the Free-holder may be joyned in Action any having Title to enter CHAP. 25. Ad Terminum quem praeteriit Entry ad communem legem Causa Matrimonii praelocuti Dum fuit infra aetateÌ„ Dum fuit non compos mentis I. A Reall Praecipe quod reddat is that which is for reall things in render and it is a plea of land or other like Praecipe II. A plea of land which is for land or other such things in demesne III. Where land in certain is demanded it must alwayes be brought in a Ville or place known out of any Ville IV. A plea of land is a writ of entry or a writ shewing the demandants title V. A writ of entry is that which is to disprove the tenants possession by the means of his entry VI. Wherein tenant in fee-simple demanding of the possession of his Ancestor shall say in the writ Quod clamat esse Jus hereditatem suam VII A writ of entry is either against the first party or in the degrees VIII Against the first party when it is against him to whom the first alination was or that made the disseisin IX That in the degrees is in the per or in the per and cui X. In the per when he against whom it is brought cometh in immediatly under the first party as heire unto him ot by alienation from him XI In the per and cui when he against whom it is brought cometh in immediatly under the first parties heir or aliance XII Writs of entry grow either without wrong at the first or upon a wrong XIII Those without a wrong at the first are grounded upon a determination of the first estate or upon a disability in the person that made it XIV Upon a determination
fine in the Mothers life time excepe he leave Assets Rule 68. Westm 1. 12. Notorious Felons which will not put themselves upon an Inquest at the Kings suite against them shal be put to a pain for t dure as those that refuse to be tried by the law of the Land Rule 70. The Statutes that concern Abjuration are Stat. de Artic. Cler. 10. and 15. 21. H. 8 2. 21. 2. 8 12. 24. but Sanctuaries being taken away that is now also out of use CHAP. 41. Rule 18. WEstm 2. 38. In an Assize there shal be but 14 summoned And men of the age of 70 years continually languishing or sick at the time of the summons shall not be put upon Juries Artic. super Cart. 9 34. E. 3. 4 Juries shall be made of the next people of the Countie Stat. 11. H. 6. 1. None dwelling in Stews shall be of a Jury Stat. 9. E. 3. 5. A Deed pleaded in a Franchise shall be tryed in the County where the action is brought Stat. 2. 3. E. 6. 24. Upon a stroke or poyson in one Countie the party dying in another an indictment and triall may be in the County where he dieth and also an appeal sued there and tryed by 12 men of the same County Likewise the accessories in one County to a murder or felonie in another County shal be indicted arreigned c. in the County where the offence of accessorie is committed Stat. 33. H. 8. 20. The indictment and triall of Lunaticks confessing treason c. Stat. 33. H. 8. 23. The triall of Treason c. confessed before the Lords of the Counsel shal be by commission out of the Chancery Stat. 27 H. 8. 4. and 28. H. 8. 13. Treason Felonie c. commited within the Admirals jurisdiction shall be heard and determined by commission directed to the Admirall and three or four others c. Stat. 32. H. 8. 4. Treasons and misprisions of Treason in wales shall be tried there by such Commissioners as the King shall appoint Stat. 35. H. 8. 2. Treason c. committed out of England shall be tried in the Kings Bench or by Commisssioners c. Stat. 1. 2. P. M. 10. Trials for Treason shall be according to the course of the Common Law Stat 23. E. 33. No Indictors shall be put on Inquests upon the deliverance of Indictees of Felonies or Trespass westm 2. 38 None shall be put in Assize or juries triable in their own County but such as have 20 s. per annum free-hold nor in Assize c. triable out of their County unless they have 40 s. per annum c. Stat. de ponend in Assis 21. E. 1. None shll he put in Assize out of their County unless they have 5 l. per annum now within their County unless they have 40 s. per annum Stat. 2. H. 5 3 Upon triall for the death of a man and betwixt party and party when the debt or damages amount to 40 Marks he shall have 40 s. per annum Stat. 33. H. 8.13 In Corporations 40 l. in good sufficeth Stat. 2. E. 6 32. The 40 s. yearly value must be inferred in the Venire facias Stat 27. El. 6. Such a Jurour shall have 3 l. yearly value Howbeit these two lost Statutes extend not to Corporations Stat. 27. El. 7. The Jurour shall be returned by some addition whereby he may be known Stat. 8. H 4 3. every Jurour returned within the County of Middlesex shall be called the fourth day of the return Stat. 5. E. 3. 10. An Ambidexter shall never be of a Jury more Stat. 34. E. 3. 8. The party or any stranger may sâ—â— him for it Stat. 38 E. 3 12. And both the Jurours and the Embraceours being thereof attaint shall pay ten times so much as they have taken Westm 2. 30. when and how Assizes c. shall be taken in the Country See also Statutum de finibus levatis 4. 21 E. 1. That Enquests thereof being taken shall be returned into the Bench and there judgment shal be given thereupon c Stat. Eberac 3. 12. E. 2. Enquests in Pleas of Land that require too great examination shal be taken iâ— Country before a Justice of the place whe e the plea depends and a Knight there or other c. Stat. 42. E. 3. 11. Nisiprius shall not be granted before the name of the Jurours returned Stat. 14. E 3. 16. The directing of Nisi Prius to be tried in the Countrey Stat. 18 El. 12. Trial of Nisi Prius for Middlesex iâ— the term time or 4 dayes after Rule 19. Stat. â—5 H 8 6. Made perpetual 2 E. 6. 3â— Six sufficient Hundreders shal be returned upon everâ— Jury Stat. 27. El. 6. If two sufficient Hundreders appear in any personal Action it sufficeth Rule 20. Stat. 7. R. 2. 10. An Assize of novel disseisin of rent issuing of tenements in divers Counties shall be in the Confines of the said Counties Rule 22. Stat. 28. E. 3. 3. confirmed by 8. H. 6. 28. In every suit between an alien and a Denizen though the King be a party the one halfe of a Jury shall be Aliens if there be so many in that Visne and if there be not so many then so many as be there not parties Rule 23. Mag Cart. 29 A Peer of the Realm upon an Indictment of Felony or Treason shall be tried by his Peers Stat. 20. H. 6. 9. Duchesses Baronesses Countesses c. sole or married shall be tried in such cases as Peers of the Realm Rule 37. Stat. 22 H. 8. 14. No person arraigned for petty Treason Murder or Felony shall be admitted to any peremptory Challenge above the number of twenty Rule 38. Stat. 35. H. 8. 6. made perpetual 2. E. 6. 32 A Tales may be made up before the Justices of Assize or Nisi prius of able persons of the same County then present at the prayer of the plaintiffe or demandant Stat. 4. 5. P. M. 7. So likewise for the King upon request by any authorized thereunto or assigned by the Court or by the Informer that followes as well for the King as for himselfe Stat. 14. El. 9. Such a Tales de circumstantibus shall be also granted at the prayer of the defendant or Advowant Rule 53. Stat. 21. H. 8. 3. The demand of a thing intire may be abridged before Verdict though thereby the writ become false Rule 60. Magn. Cart. 28. Wager of Law shall not be addmitted without credible witnesses Stat 5. H. 4 8. In actions of debt upon arrerages of accompt faining to the Intent to put the defendants from their law that the same was found before their Apprentices or Servants Auditors assigned therein it shall be in the Judges discretion upon examination of the Attorneis or whom else they please to receive the defendants to their law or else to try the same by Enquest CHAP. 42. Rule 10 c. WEstm 2. 12. In an appeal of the death of
a man no Essoin shall li◠for the Appeallor Westm 1. 41. In Assize and Juries utrum after the tenant hath appeared he shall be no more essoyned so it is also for demandants in an Assize by Westm ◠28. westm 1. 42. Perceners or Jointenants in a Praecipe against them shall have but one Essoin so likewise for a man and his wife by the Stat. of Glocester 10. Stat. 9. E. 3. Stat. 1. 3. In a writ of debt against executors they shall have but one Essoin before and another after appearance Westm 2. 27. No Essoin is allowed after day given by prece partium Marlbr 13. After a man hath put himselfe upon an Inquest he shall have but one Essoin wessm 2. 17. After one hath put himselfe upon an Inquest an Essoin shall be allowed him at the next day but never after Marlbr 19. None shall need to swear to warrant 〈◊〉 Essoin Westm 1. 43. The Demandant may aver against an Essoyn of being beyond Sea Westm 2. 17. He may aver that the tenant is not sick nor in such plight but that he come before the Justices c. Stat. 5. E. 3. 7. Essoyn of the Kings service or protection shall not be allowed in Writs of Attaint Stat. of Essoyns 12. E. 3. 2. See many particular Cases where Essoyns lie not Rule 16. Stats de Anno Bissextili 21. H. 3. The day increasing in the Leap-year and that going before shall be accounted for one day Dies communes in Banco 51. H. 3. Dayes given in Writs shall have 9 returns Dies communes in Banco and 32. H 8. 21. Common dayes shall be given in reall actions 9 returns In Writs of Dower 5 returns Malbr 12. In Dower unde nihil habet 4 or 6 dayes shall be given in the year In Assizes of Darrein presentment or Quare impedit from 15 dayes to 15 dayes or from 3 weeks to 3 weeks as the place shall be neer or far Stat. 5. E. 3. 6. 7. In an Attaint 5 dayes at least Rule 17. Stat. 1. E. 6. 7. By death of the King no Action Suit Bill or plaint shall be discontinued or put without day but shall proceed as if the King had lived Rule 39. Stat. 14. E. 3. 14. The manner of search in suit by petition Rule 43. 27. El. 7. A Iuror shall not be returned without a true addition of the place where he dwels and some other addition wherby he may be known Stat. 35. H. 8. 6. What issues shall be returned upon Jurors Stat 2 3. E. 6 32. If the principall Jury appear not fully at the nisi-prius those that make default shal forfeit their issue though the Jury be made up de Circumstantibus CHAP 43. Rule 20. STat de consultatione 24. E. 1. A Consultation shal be awarded by the Chancellor or cheif Justice upon sight of the Libel at the Instance of the Plaintiffe Stat. 50. E. 3. 4. Upon a consultation the Ecclesiastical Judge may proceed notwithstanding any other prohibition so the matter of the Libel be not enlarged or changed Rule 23. Westm 1. 15. Persons outlawed and such as have abjured the Realm Provers and such as be taken with the manner Ptison breakers Theevers openly defamed and known Appellees by proven during the life of such provers house burners Counterfeiters of the Kings Seal and coin Excommunicate persons manifest offenders and Traitors are not bailable c. other Statutes that concern Bail are 3. H. 7. 3. 1. 2 P. M. 13. and 3 P. M. 10. CHAP. 44. Rule 3. West 2. 5. When the parson of any Church is disturbed to demand his Tithes in the next Parish by an Indicavit the Patron shall have a Wtit to demand the Advowson See Stat. pro Clero 18. E. 3. 7. 47. Rule 6. Stat. 25. E. 3.18 The Lord may seise the body of a Villain notwithstanding that a writ de libertate probanda be hanging Rule 10 Stat. 5 E. 3. 7. No protection shall be allowed in Writs of Attaint Rule 12. See Stat. 13. R. 26. The Statute of Protection 1. R. 2. 8. Rule 14. A Creditor shall have an Action and Judgement against the Kings Debtor notwithstanding such a Protection but not execution unlesse he take upon him to pay the King and then he shall have judgement and execution of both debts as well of that due to the King as to himselfe Rule 16. West 2. 17. He may aver that he is not sick c. vide supra Cap 42. Ru. 10. CHAP 45. Rule 7 STat. 14. El 8. Every fraudulent recovery against Tenant for life wherupon the Tenant for life is vouched shall be void against the Reversioner or him in remainder unlesse it be by his own consent appearing of Record Stat. 21. H. 8. 15. Termers for years or such as are in by Execution of Statute staple Statute Marchant or Elegit may falsifie recoveries for their own term only as Tenants of the Freehold might have done at the Common Law Rule 13. 25. H. 8. 3 revived by 5. 6 E. 6 10. One arraigned upon an Indictment of petty Treason wilfull burning of houses murther robbery or other felony according to the meaning of the same Statute if he stand mute of malice or forward minde or challenge peremptorily above 20 or will not directly answer shal lose his Clergy in such manner as he should if upon the arraignment he had been found guilty Stat. pro Clero 25. E. 3. 4. None convict of petty Treason shall have it Stat. 8. El. 6. Not in Rape Ravishment or Burglary nor in the carnal abusing of a woman within ten years of age Stat. 25. H. 8 6. 5. El. 17. Nor in buggery Stat. 5. E. 6 9. Not for robbing a dwelling house booth or tent c. Stat. 4. 5. P. M. 4. Nor for accessaries before the fact in petty treason murther or robbery in an house or in or neer the high way or for the wilful burning of dwelling house or a barn with Grain Stat. 25. H. 8. 3. 5. E. 6. 10 He that doth a Robbery or Burglary in one County and is taken with the goods so robbed or stoln in another County shal lose his Clergy there as he should do where the Robbery or Burglary was committed Stat. 4. H. 7. 13. 1. E. 6. 11. It is grantable but once to one person unlesse he be within orders Stat. 4. H. 7. 13. He that askeh his Clergy the second time shall at a certain day bring his Letters of order or a Certificate Stat. 4. H 7. 18. He that hath his Clergy shall be marked in the hand viz. with a M if he were convict of Murder with a T if he were convict of other felony Stat. 1. E. 6. 12. A Lord of the Parliament in all Cases where Clergie lieth at the Common Law or is restrained by Statute shall upon his prayer be adjudged as a Clerk convict though he cannot read Stat. 1. El. 4. 18. El 7. After purgation he
shall be put to answer to any offence committed before his admission to the Clergy wherupon Clergy is not allowable and wherof before he was not indicted and acquitted convicted or attainted and pardoned and shall be demeaned in all things as if he had never been admitted to his Clergie Stat. 18. El. 7. He that is allowed Clergie shall not be deliverd to the Ordinary but after burning in the hand shall be forthwith delivered by the Justices out of prison yet for further correction they may detain him in prison so as it be not above a year Rule 24. Westm 2. 12. One being acquitted upon an Appeal or Indictment of felony may have the abettors inquired and have a judicial writ for damages against them if the appellant be not sufficient Stat. 8. H. 6. 10. An Action upon the case given for him that is duely acquit by Verdict against every procurer of any judgment or appeal of treason felony or trespasse and like processe shall be therin as in a writ of trespasse vi armis Rule 37. Westm 2. 18. 13. E. 1. Where debt is recovered or knowledged in the Kings Court or damages awarded it shall be from henceforth in the election of the Plaintiffe to have a writ of Fieri facias unto the Sheriff to levie the debt upon the lands and chattels of the debtor or that the Sheriffe shall deliver to him all the chattels of the debtor except oxen and beasts of his Plough and the one half of his land until the debt be levied upon a reasonable price or extent And if he be put out of the land he shall recover it again by a writ of Novel disseisin and after that by a writ of redisseisin if need be Action Burnel 11. E. 1. A debt acknowledged to a Merchant before the Major of London York or Bristol or before a Major or Clerk appointed therunto by the King shall be enrolled and if it be not paid at the day the debtors moveables shall be prized and sold in satisfaction by the Major if he have any within his jurisdiction else by writ out of the Chancery upon a Certificate of the Recognizance thither The Apprisors are to take them at the price if they apprize them too high if the debtor have not moveables sufficient he shal be imprisoned until c. The like processes against pledges in default of sufficient movables of the principall Stat. de Mercatoribus 13. E. 1. A debt acknowledged to a Merchant before the Major of London or chief warden of the Town which the King shall appoint or other sufficient men when they cannot attend before a Clerk which the King shall assigne shall be enrolled and if it be not paid at the day the debtor if he be a Lay man shall be imprisoned by the Major untill c. if he be within their power else by writ out of the Chancery upon Certificate of the Recognisance thither And if he agree not with the Creditor within a quarter of a year after then all the lands which were the debtors the day of the Recognisance made and also his goods shal be delivered to the creditor upon a reasonable extent And of these lands so delivered the Conisee being ousted shal have an assize or redisseisin The writ out of Chancery shall be returnable before the Justices of either Bench and upon a non est inventus returned or that he is a Clerk writs to all the Sheriffes where he hath lands or goods shall go forth to deliver the same upon reasonable extent and to what Sheriff he wil to take his body The like Proces shal be against the pledges if the mony be not paid at the day If the debtor or pledges die the Creditor shal have execution upon the lands of the heir as at his ful age The Stat. of the Staple 27. E. 3. Stat. 28 the Major of the staple shall take recognisance of debt before himself and the Constables of the Staple whereupon default of payment being made the debtors body shal be imprisoned and his goods sold in satisfaction of the debt if they be within the Staple otherwise upon a Certificate in the Chancery a writ shall go out from thence to imprison his body and seize his lands and goods which shall be returned into the Chancery and execution therupon in all respects as in the Statute-Merchant save that the debtor shal have no advantage of the quarter of a Year Stat. 5. H. 4. 12. a Statute being once shewed in the Common Place and the processe afterwards discontinued yet execution may afterwards be awarded without showing it again Stat. 11. H. 6. 10. He that is in Prison upon a Recognisance shall not be delivered out of prison upon a scire facias against the party and surety found to the King alone but shall finde sureties severally as well to the King as to the other Partie Stat. 23. H. 8 6. Either of the Cheif Justices or in their absence out of the term the Major of the Staple of Westminster with the Recorder of London may take Recognisances and they shall be executed in all respects as a Statute Staple Stat. 27. El. 4 Every Statute Staple or Merchant not brought to the Clerk of Recognisances within 4 months next after the acknowledgement therof shall be void against all persons their heirs successors executors administrators and assigns onely which for good consideration shal after the acknowledging therof purchase the land or any part thereof lyable thereunto or any rent lease or profit out of the same Stat. 32. H. 8. 5. Lands lawfully delivered in execution upon a judgement Statute Merchant Staple or Recognisance being evicted without any fraud or default in the tenant before he have levied the whole debt and damages and Recoverer and Recognisee shall have a scire facias out of the same Court where execution was awarded returnable there full forty dayes after the date and therupon a new writ of execution of the nature of the former shall issue forth to levie the rest of his debt and damages if the defendant make default or shew no good matter in barre Mag. Cart. 8. 9. H. 3. The King shall not take the lands or rents of the debtor if he have sufficient chattels Mag. Cart. 18. The goods of the debtor may be attached after his death by the view of lawful men that nothing be medled with till the Kings debt paid Stat. 33. H. 8. 39. All obligations to the King shall be of the force of a Statute staple Rule 48. Westm 2. 45. 13. E. 1. For all things recorded before the Kings Justices or contained in fines as contracts Covenants Obligations Services or Customes acknowledged or any other things enrolled a writ of execution shall be within the yeer But after the yeer a Scire facias The like also is of a Mesne who by judgment or recognisance is bound to acquit CHAP. 47. Rule 9 Stat. 9. R. 2. 3. If tenant for life or in tail
after possibility of issue extinct be impleaded judgment passe against him the reversioner or remainder man at the time of the judgment shall have writ of error upon an error in the record of the same judgment as wel in the life of such a tenant as after his death And if at the time of reversing the judgement the tenant for life c. be alive he shall be restored c. his possession with the mean profits the reversioner c. to the arrerages of the rent if any be due But if the tenant for life c. be dead at the time of reversing the judgement then the reversioner c shall be restored to the possession with the issues after the death of the tenant for life c. and also to the arrerages due in his life see the Marqu of Winch. case Co. 3. 4. Stat. 31. E. 3. 12. Error in the Exchequer shall be reversed before the Chancellor and Treasurer taking to them such justices and other sage persons as they shal think fit and afterwards the roll shall be sent back into the Exchequer to make execution Stat. 31. El. 2. If either the Lord Chancellor or Lord Treasurer or both the Chief Justices come at the day of adjournment in the Writ of error in the Exchequer it shall be no discontinuance Stat. 32. H. 8. 30. Made perpetuall 2. E. 6. 32. After a Verdict tryed by 12 men or more in any suit in a Court of record no Judgement shall be stayed or reversed for any mispleading lack of colour insufficient pleading miscontinuance discontinuance misconveying of Processe misjoyning of Issue lack of warrant of Attourney for the party against whom the Issue is tryed or any other default or negligence of the parties their Councellors or Attourneys Stat. 18. El. 14. After a Verdict of 12 men or more in any suit in Court of Record Judgment shall not be stayed or reversed for default of form or lack of form false Latine variance for the register c. in any writ original or judicial Declaration Bill or Plaint or for want of any writ original or judicial or by reason of any imperfect or insufficient return or for want of any warrant of Attourney or by reason of any manner of default in proces upon or after Aid prayer or Voucher Stat. 27. El. 5. After Demurrer joyned or entred in any suit in Court of Record the judges shal proceed give Judgement according to right the matter in law appearing to them without regarding any imperfection defect or want of form in any writ Return Plaint Declaration or other pleading whatsoever except those only which the party specially and particulary shall set down and expresse together with his Demurrer And no Judgment to be given shall be reversed by writ of error or by any such imperfection defect or want of form aâ— aforesaid except as is before excepted The two last Satutes extend not to suits of Felony or Murder nor to the indictment or presentment of them or of treason nor to the Proces of any of them nor to any suit upon any popular or penal Staute Rule 16 Stat. 27. E. 8. An error in the Kings Bench in an action of debt detinue covenant account action upon the Case Ejectione firmae or trespass first commenced there where the King is no party may at the parties choise be reversed in the Exchequer chamber before the Justices of the Common place and such Barons of the Exchequer as are of the Coife or six of them at least other then for error concerning the jurisdiction of the Kings Bench or want of form in a writ Return Plaint Bill Declaration Pleading Process Verdict or proceeding whatsoever And upon the judgement affirmed or reversed the Record shall be sent back into the Kings Bench to proceed and award Execution therupon the party grieved with such reversall or affirmation may have a writ of error in the Parliament in such sort as is now used upon erroneous judgements in the Kings Bench. Stat. 31. El. 1. Any three of the Justices and Barons if the full number come not may receive Writs of Error award Processe prefix dayes for the continuance of Writs of Error c. Rule 12. West 1 37. 3. E. 1. An Attaint is given in pleas of Land or of Freehold and of things that touch Freehold Stat. 1. E 3. Stat. 1. 6. It is given in Writs of Trespass as well upon the principal as upon the damages Stat. 5. E. 3. 6 7. In attaints no Essoin or Protection shall be allowed and a nisi prius is given in such Writs as well as in others Stat. 28. E. 3. 8. An Attaint is given in trespasse as wel upon a Bill as upon a Writ without having regard to the quantity of the Damages Stat. 34. E. 3. 7 An Attaint is granted in all pleas as well real as personall Stat. 9. R. 2. 3. It is given to the Reversioner during the life of his Tenant for life upon a recovery against him with restitution to the Tenant that left his possession together with the mean profits and of the arrearages to the reversioner but if the tenant that so lost be dead or were of covin with the recoveree restitution shall be made to the reversioner of the possession it selfe with the mean profits arrerages after such death or recovery by covin saving to the tenant his action by scire facias if he wil traverse the Covin Stat. de Attinctis 13. E. 2. If the petty Jury appear not at the first distresse against them or a nihil be returned the grand Jury shal be taken by their default Stat. 23 H. 8. 3. Made perpetuall by 13 El 25. In any suit before Justices of Record not concerning life an Attaint is given against the Petty Jury and every of them and the party himselfe the processe against the Petty Jury and Grand Jury shall be summons and Resummons and distresse infinite Open proclamation shall be made in the Court where the distresse is awarded more then 15 dayes before the return of the distresse and the Grand jury shall be taken in default of the Defendant or petty jurors or any of them If any of the petty jury appear then the Plaintiffe shal assigne the false Oath of the first verdict untruly given wherunto the petty jury shall have no answer if they be the same persons and the Writ Processe Return and Assignment be good and lawfull except the plaintiff in the same attaint hath before been non-suit or discontinued his suit or hath had a former judgment therin but only that they made a true oath which issue shall be tryed by 24. of the Grand jury and the party shal plead that they gave a good Verdict or any other matter which shall be a sufficient bar of the attaint Notwithstanding which plea the grand Jury shall without delay enquire of the truth of the Virdict such a day shal be given in a Processe as in