Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	assign_v	error_n	writ_n	4,504	5	9.8539	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A54680	The ancient, legal, fundamental, and necessary rights of courts of justice, in their writs of capias, arrests, and process of outlary and the illegality ... which may arrive to the people of England, by the proposals tendred to His Majesty and the High Court of Parliament for the abolishing of that old and better way and method of justice, and the establishing of a new, by peremptory summons and citations in actions of debt / by Fabian Philipps, Esq.	Philipps, Fabian, 1601-1690.	1676 (1676)	Wing P2002; ESTC R3717	157,858	399

demand in the Writ specified be under 20. pounds are by the Rules and Custom of the Court of Common Pleas not to be insisted upon or if above not at all in the Case of Defendants being Executors or Administrators and if the Defendant for want of Bail for his appearance do continue in Prison three terms and no habeas Corpus be brought or declaration given or further prosecution made he is to be delivered by a Writ of Supersedeas made of course upon the apparance to the action only without any special Bail put in before a Judge or Bond given to the Sheriff and where special Bail is very seldom given it is but that if Judgment be obtained against the Defendant he shall render his body to Prison or satisfie the condemnation Our Writs of Arrest ad respondendum being ad Cautionem custodiam non ad poenam but to enforce a gage or pledge or to detain or put a Debtor or Defendant into the Custody of the Law to the end he may give Bail Judicatum solvere to abide the Judgment of the Court or if no Bail be required to appear to the Action And the Proces of Utlary which although they were not ordinarily used in Actions of debt before the making of the Statute of 25 E. 3. was notwithstanding in cases of trespas for breach of the Peace and for Contumacy and Contempts in not appearing warranted by the Laws of King Edgar Canutus Edward the Confessor and the practise of our Saxon Ancestors borrowed and deduced from the Ancient Customs of other Nations is not now so dreadful as it was in former Ages when as Bracton and Stamford do agree the Partie outlawed did forfeit Patriam Amicos omnia terras tenementa bona Catalla sua all that he could entitle himself unto was out of the protection of the King and his Laws and could not bring any action until he had rendered himself to Prison obtained his Charter of Pardon brought his Writ of Error and given Bail to answer the Action but may now without Bail unless specially required be admitted to reverse the Utlary before Judgment upon defect of Proclamation only or some small Error without a Writ of Error or the Record certified into the Court of Kings Bench or Errors assigned with other the many troubles and charges which that way produced The Plaintifs for fear of obstructing or narrowing the wayes of Justice are not put as they were anciently to find real Sureties to prosecute and make good their actions or to pay a Fine to the King if they do not as our Laws do intend they should or to make Oath of their debts or de non calumniando that the Action is not prosecuted in malice or upon sinister ends as the Civil Law enjoyned And the Statute of Westminster the second doth in Writs of Execution against the Goods and Chattels of a Defendant except Boves Affros de Caruca sua Oxen and Horses of Husbandry and the Writ imports as much in the tenor of it the Judges do without any Inquisition or proof that there were not other goods sufficient to satisfie the Execution permit for the Creditors more speedy attaining to his satisfaction all the goods to be taken in Execution which in more Ancient times was so unusual as a Defendant hath brought his Action against the Sheriff and the Plaintif for taking them in Execution when there was other personal Estate sufficient And do also suffer the Plaintiff to prosecute the Sureties upon a Bond when the Principal hath not been sued and was sufficient to pay the Debt or dammage which by the former course and practise of the Law was not allowed And our Writs of Exigent and Outlary were truly and properly only to be made use of where the Defendant refuseth to appear in contempt of a Court of Justice and the Proces thereof is fugitive or incertain where to be found taken or arrested hath no visible or certain Estate or lurketh in some Liberty of which there are many in England and Wales where the Kings ordinary Writs and Proces do not run or have any power or force and a Capias utlegatum carrieth with it in the same Writ a Non omittas propter aliquam libertatem and impowereth the Sheriff to enter into any Liberty and arrest the Defendant and by a special Capias utlegatum to seize and take at the same time all the Defendants Lands Goods Chattels and Estate into the Kings hands as forfeited for his Contempt and that seisure transferred into the Court of Exchequer bringeth the Plaintif an advantage to take a Lease of the King of the Lands so seised at a very low rent until the Defendant purge himself of the Contempt reverse the Outlary give Bail and appear unto the Action which being so consonant to the Outlawries Bannes and proscriptions of Germany and other Nations Kings and Princes in the like Cases to preserve their own Authority in that of their Courts of Justice and requiring some severity and a more then ordinary Proces hath been all the means which without force and violence and a greater disturbance of the People our Laws and a long Custom and usage of time have hitherto prescribed can contrive to bring unwilling Men to Judgment CHAP. VI. The delayes and inconveniences of the Proces of Summons Pone and Distringas were a great if not the only cause of the disuse thereof FOr the way and Course of Summons Pone and Distringas so much in use before that Statute of 25 E. 3. was unto Plaintifs as full of delayes as they were of increase of Charges and trouble which a view of the old Records of the Court of Common-Pleas before the making of that Statute by the many Writs of Alias and Pluries Distringas with issues forfeited and returned upon them occasioning a great pro●it to the King and less to the Subjects and the many Writs of testatum Distringas made into other Countries where the Plaintifs averred that the Defendants had Lands and Estate suffi●ient and Writs of Averment and Enquiry made out upon too small issues returned directed unto the Justices of Assize to certifie if there might not be more issues returned and such a Writ of Enquiry to be executed in the Lent or Summer Vacations could not but cause a more long chargeable and troublesome delay to get better issues to be returned may help to attest the more necessary and better use of the Proces of Capias and Arrest and that Writs of Exigent and Outlawry will in the Cases aforesaid propter inevitabilem necessitatem be everlastingly necessary especially when in the same Parliament of 25 E 3. wherein Proces of Outlawry in Actions of Debt were granted a great complaint was made that the Steward and Marshal of the Kings House or their Deputies did upon Actions attach and distrain men by ten Marks of their Goods one day and by as much the next

non prospexit recourse is to be had to the Body of the Tenant and if he be not to befound the Landlord is to impute it to his own negligence that he did not look better to it Cum quis ad warrantum vocatus fuerit Christianus vel Judaus qui terram non tenuerit in feodo quae capi possit in manum domini Regis per quam distringi possint pracipiatur vicecomiti quod habeat corpora eorum when any man is vouched to warranty be he Christian or Jew and hath not Land which may be taken into the Kings hands or by which he may be distrained the Sheriff shall be commanded to take his Body or bring him And a Bishop being Summond in a quare non admisit cum non venit nec se excusat per nun-nec per Essoniatorem attachietur when he neither comes nor sends his excuse nor essoins shall be attached Upon a writ awarded to a Bishop to command him to bring before the Kings Justices a Clark or Minister in holy Orders refusing to find Pledges because he was in holy Orders and had no lay Fee whereby he might be distrained if the Bishop did not after a Summons pone Distringas awarded against himself cause him to come the Court did proceed against the Clark upon the contempt and cause him to be arrested nor could the Sheriff or his Bayliffs incur any punishment for doing of it for the execution of the Law saith Bracton wrongeth no man By the Statute of Marlebridg made in the 52 year of the Reign of that King if any shall not obey or suffer Summons attachments or executions of the same according to the Law and customs of the Kingdom they were to be punished The word Attachment being saith the learned Vossius derived from a French word to apprehend or detain An Attachment is to arrest force or compel a man denying to come to judgement saith Sir Henry Spelman And by Skene a learned Scotch Lawyer is defined to be a certain Bond or Constraint of the Law whereby a Defendant is unwillingly compelled to answer in Judgment to the Party complaining In the Statute of 52 Henry the third where a Capias is given against accomptants it is said they shall be Attached by their bodies An Attachment made for disobeying a Writ of prohibition is in the very form of a pone the awarding and entry of a pone is that the defendant should be Attached And saith Bracton the course or solemnity of Attachments to compel the Defendant to come to the Court to answer his contempt was not so always observ'd but in trespas for the greatness of the offence or in favour of Soldiers that were going to the Wars or of Merchants or such as required haste in Actions of Debt and it is probable that the Actions or Suits of Merchants were most commonly of that nature the Judges granted an Habeas Corpus which to that purpose was in effect as much as a Capias whereby the Sheriff was commanded all delays set apart in regard of such haste and priviledge to bring the Body of the Defendant to answer the Plaintiff in an Action of Debt or Trespas as the case required with a Clause in the Later end or perclose of the Writ that the Sheriff should be grievously amerced if he refuse to do it By an Act of Parliament made in the 52 year of the Reign of the aforesaid King in a Plea of Common custody or guard by reason of ward if the deforcers came not at the great distress the Writ was to be renewed twice or thrice within the half year following and if after the Writ read and proclaimed in open County the deforceant absent himself and the sheriff cannot take his Body to bring before the Justice then as a Rebe●●e shall loose the Seisin of his ward By the Statute made in the third year of the Reign of King Edward the first if any under Sheriff or other do withhold Prisoners replevishable after they have offerd sufficient security he shall pay a grievous amerciament to the King in which act of Parliament men committed by the King or his Justices are excepted and declared to be not replevishable By a Statute of the aforesaid King made in the same year the title of it being against the arresting of men in Liberties great men and their Bayliffs the Kings Officers only excepted to whom special authority sayeth the Statute is given were not to attach men passing thorough their Jurisdictions with their goods compelling men to answer before them upon contracts and covenants c. And the writ of prohibition in the Register awarded upon that Statute is for attaching a man to answer upon contracts and covenants Britton who wrote his Book by the command of King Edward the first saith if any man will complain of a debt under forty shillings let him find Pledges to prosecute his debtor and if he that is sued in Trespas maketh default let him be distrained And that in an action of debt if there be not a sufficient distress the Difendants might be taken by their Bodies be they Clarks or Laymen Fleta or whosoever was the Author of the Book so called reciting the then manner of proceedings at law as an old and accustomed course saith they were by Summons Attachments and distress in personal actions the entries and awarding thereof upon record being the very same with little difference as they are now used If a debtor had bound himself to be in default of payment distrained by the Steward and marshal of the Kings house then upon security given by the Creditor to prosecute a distringas was awarded against the debtor until he found Pledges so as he were within the virge and if he were personally to be found was to be Attached by his body until he should by Pledges acquit himself and if he had not Pledges was to be held in Custody until that he answered the Creditor non tamen in vinculis or if he found Pledges and after made default the Pledges were to be amerced and the Defendant arrested and detained and not be bailed or let loose by Pledges before he had answered And that not only Marescallus sub suo periculo omnes captos infra virgam custodire debet sed de eis coram Senescallo respondere de Judicatis plenam facere executionem the Marshal should at his Peril keep all that were taken within the virge but answer for them before the Steward and ought to take in execution those against whom Judgment should be given and the Steward did of course command the Clark that keepeth the placita Aulae pro Rege Rolls and Records of the Kings Court to direct his writ Marescallo quod ipsum de quo fit sine dilatione attachiari faciat to the Marshal that he do without delay attach him of whom any complaint should

or otherwise destroyed but by lawful judgment of his Peers or by the Law of the Land And by 25 Ed. 3. ca. 4. That no Man shall be taken by Petition or suggestion but by Indictment or Presentment or by Process made by Writ original at the Common Law He is in his Comment upon Magna Carta and that Statute of 9 H. 3. of opinion that the words Per legem terrae do refer to all the procedent matters in that Chapter or Statute that that Statute was but declaratory of the old Law of England That a Commitment by Lawfull warrant either indeed or in Law is accounted in Law a due process or proceeding of Law and by the Law of the Land as well as by force of the Kings writ and that if a man be suspected and he flyeth or hideth himself it is a good cause to arrest him that in many cases a man may be by the Law of the Land taken and imprisoned by force of the Kings writ upon a suggestion made and that against those that attempt to subvert and enervate the Kings Laws there lyeth a writ to the Sheriffe in nature of a Commission ad capiendum impugnatores juris Regis ad ducendum eos ad Gaolam de Newgate to arrest the Impugners of the Kings Laws and to bring them to the Gaole of Newgate and if he had not been of that opinion the words of Magna Charta in that Statute of 9. H. 3. can if they were put upon the rack and tortured bear no other genuine sense or interpretation then that no man shall be taken or imprisoned but by lawfull judgment of his Peers or by the law of the land And those words of the Statute of 25. Ed. 3. ca. 4. that no man shall be taken by petition or suggestion but by indictment or presentment or by process made by writ original at the Common Law can receive no other construction but that a man may be taken by process made by writ original at the Common Law of which nature are the process or writs of Capias in the Court of Common Pleas at Westminster which are made upon original writs issuing out of the Chancery have been in use upon occasion and are matters of record before the Justices in this Kingdom long before the making of those Statutes And such an universal approved Ancient long and continued Praxis founded and fixt upon the Laws of God Nature and Nations in order to the preservation of Faith and Justice those grand Supporters of humane Societies should need no Advocate to plead and justifie the necessary use thereof but be sufficient to perswade the opponents to acquiesce in the reason and legality of it And that great Lawyer Sir Edward Coke might have had more lawrels to have encompassed and grown up by his urne and had not so much Eclipsed that great reputation which he had gained in his Studies and Profession of the Laws as he hath if he had not without a due and serious examination so much taken upon trust Caressed Magnified and recommended to posterity that Manuscript called the Mirror of Justice and some other Manuscripts so often by him appealed unto and vouched in his 2. part of the Institutis or Comment upon Magna Charta In which Consarcination called the Mirror of Justice that Mirror of Justice Maker or Deviser dreameth truly to have recited some exemplary Judgmeets or direful punishments inflicted by King Alured or Alfred upon 44. Judges of his times for supposed Errors and Misdemeanors by them committed And hanged them who with great probability may be believed not yet to have been hanged by that King or any other for that if any such remarkable things or Examples of Justice had ever been done by him they could not in all likelihood have escaped our old Historians Symeon Dunelmensis Ailredus Abbas Rievalensis John Brompton William Malmesbury Henry Huntington Roger Hoveden Henry Knighton Matthew of Westminster Ingulphus and all our other Ancient times Remenbrances nor would have been unrecorded by Asser Menvensis who for the fame of his Learning being sent for out of Wales to come and live with him was preferred by him and made a Bishop and residing in his Court Wrote his life and recommended to Posterity his most memorable Actions excellent Qualities and Endowments but was so far from the Registring of any such Severeties as on the contrary he doth make mention of the extraordinary clemency and lenity of that Virtuous Prince who although he was a most diligent inquisitor of any male administration of Justice by his Judges yet saith Asser Menevensis Leniter Advocatos aut per scipsum aut per alios suos fideles quoslibet Interrogabat quare Ita nequiter Judicassent utrum per ignorantiam aut propter aliam malevolentiam id est utrum pro aliquorum amore vel Timore aut aliquorum odio aut etiam pro alicujus pecuniae cupiditate Gently calling them to him he did by himself or others whom he might trust demand of them Wherefore they had given such Judgments whether ignorantly or for any ill will or for love fear hatred covetousness or love of Money Denique si illi Judices profiterentur propterea se talia Ita Judicasse eo quod nihil rectius de his rebus scire poterint tunc ille discrete moderanter illorum imperitiam insipientiam redarguens aiebat Ita inquiens nimirum admiror vestram hanc insolentiam eo quod dei dono meo sapientium gradus usurpati sapientiae autem studium operam neglexistis But if those Judges did confess that they had so Judged or done because they knew no better then he did discreetly and moderately shew them their ignorance and say unto them truly I do very much wonder at your folly for that by Gods guist and mine you have taken upon you the degree of my wise men and Judges but the study of the Laws you have neglected Qua propter aut terrenarum potestatum ministeria quae habetis illico dimittetis aut sapientiae studiis multo devotius docere studiatis impero Wherefore I command you either suddainly to leave your places or give your minds more unto study Quibus auditis verbis perterriti veluti pro maxima vindicta Correcti Comites praepositi ad aequitatis discendae studium totis viribus se vertere nitebautur ita ut mirum in modum illiterati ab infantia Comites pene omnes prepositi ministri litteratoriae arti studerent malentes insuetam disciplinam quam laboriose discere quam potestatum ministeria dimittere Whereupon they viz. His Earles and subordinate Judges being as much terrified as if they had been actually punished did wholly addict themselves to the study of the Laws so as to a wonder the Earles and Judges aforesaid many of whom from their youth were ignorant and illiterate did by study endeavour to make themselves more able choosing rather the hardship

reproaches and not always without the scorn of being asked if they had any Latin by those that did never understand it or were ever likely or in a capacity to do it And Pride the Drayman turned by an accursed Rebellion into a Colonel could say that he hoped shortly to see or it would never be well untill the Lawyers Gowns were like the Scottish Colours hung up in Westminster hall So great was his and his partisans malice and hatred to those Laws which once they seemed to be so much in love with professed and covenanted to maintain In the same year that so remarkable Thomas Elsliot calling himself a member of Jesus Christ and of the English Common-wealth a free-born person of the English Nation Esquire at Arms Conquerour of the Gentlemen of the Long Robe now or late the Satan of the Commonwealth in his Book entituled The true Mariner with his Metaphorical and Hieroglifical Ship demonstrating the way to Paradice dedicated to Oliver Cromwell saith the Prothonotaries and Registers in the Courts of Justice are immense Foxes the Attorneys and Clarks Kindle-coals the Bum-bailiffs Serjeants at Mace and Marshals-men Serpents Toads Rats and Mice James Stocall Colonel of a Regiment of fifteen hundred men in the Isle of Jersey proposed that if a man be overburdened with Debts and imprisoned and his Estate not able to pay he ought if he come into Court and affirm it upon his Oath to be freed of all his Creditors so as he do leave them what he hath whereby to satisfie every Creditor according to the priority of every mans Debt Shortly after followed Proposals by some Chancery Clarks aiming to hurt their Masters the Six Clarks in Chancery and make what benefit they could for themselves that twelve ancient practising Clarks to be chosen two out of every Office by the major votes of the Clarks and presented to the Lord Keeper Lord Chancellor or Lords Commissioners of the Great Seal and out of them to be chosen some Overseers or Superintendents and to have an Annual stipend the Subpoena Office to be nulled and those Writs to be made by the Chancery Clarks the Affidavit Office to be taken away Lawyers Fees to be ascertained and none to take any more Fee in that Term for any particular Cause and no matters to be referred to Masters of Chancery but Accompts Charles George Cock would have Vtlaries abolished and no Arrest and that there be only a Summons without a Writ or attaching the person and if twice summoned let him be proceeded against upon his Goods In the year 1652. Gerrard Winstanley published his opinion that the Kings old Laws cannot govern a free Commonwealth and it is not possible for a people to be too free and in a Book entituled The Law of Freedom or true Magistracy restored complaineth that Tolls in the Market are a burden that the Gentry do oppress the Common people live idly upon their labours and carry away all the comfort and livelihood of the Earth that the powers of Lords of Manors do remain still over their Brethren requiring Fines and Heriots beating them off the free use of their Commons the Commoners have cast out the King therefore they are in equity free from the slavery of that Lordly power and that it will blast the power of the Parliament and Army to see the Government of the Commonwealth to be built upon the Kingly Laws and Principles and that all slaveries and oppressions which have been brought upon mankind have been by Kings Lords of Manors Lawyers Landlords Divines who ought to be cast out and prayeth that there may be a Judge in every Shire Peace-makers in every Town Overseers and a band of Souldiers attending them Another proposeth that instead of an Arrest a Summons might be sufficient and if no Apparance Judgment and Execution to pass In the year 1653. in a Book entituled a supply to a draught of a Systeme proposed by a Committee for the Regulation of the Law it was desired that none be arrested attached molested or troubled by any Original or other Writ And thus whilst too many addle-headed Reformers were labouring to establish wickedness by a Law or Authority and the major part of the Members of the miscalled Parliament having as they thought rear'd their designs to that height and nearness of accomplishment that they took themselves to be Officers of Righteousness elected and chosen to do wonderfull things that Gods will might be done on earth as it was in heaven that every one might be holy and the Pots yea the Bells upon the Horses as they were pleased to phrase it might be holiness unto the Lord and that God might reign and be all in all they did in that hurry and fit of Zeal without any solid or rectified reason cause or consideration without the hearing of any defences to be made against their supposed to be infallible Judgments Vote that the High Court of Chancery and all the other Courts at Westminster-hall should be dissolved and no more made use of and a Member of that Society and a Burgess for the Town or University of Cambridge who might have done well to have disswaded his Election until he had learned more wit was so willing to have the Civil Laws here used to be destroyed or set packing with the Common Laws as he could not forbear crying out Mr. Speaker one word I beseech you for Jesus Christ let the Civil Law also be put down But that not well according with the sentiments and purposes of Cromwell their man of Sin who had designed to trepan them to deliver up their fancied Parliamentary Government and to bless God for the yoke and Instrument of his own making whereby he as a single person had with many curbing contrivances a future absolute lawless and unlimited power and Authority he did for the better preserving of the Justice of the Nation for the administration whereof he intended to make himself an allowance of Two hundred thousand Pound per annum and well understood to be as necessary in a Common-wealth as it had been in the best of Monarchies and some other his reasons of State whilst those Dreamers of Godly Reformations had upon his Summons and Command refused to dissolve or come out of their opinionated Senate or Parliament-house cause some of his Janisaries or Red-coat Souldiers to pull them out of the House and lock up the doors And their ungodly and particular interests having thus enticed the vulgar and less considerate part of the people too many of them made all the hast they could to pull in pieces the frame and the noble ever to be admired constitution of our Government where they could be sure of hopes of gain and losing nothing by it and joyning with some Lawyers of the smaller size that wanted Practice and expected imployments by a Renverse of our Old Laws and setting up New the finews and foundations of our Laws were endeavoured to be cut Monarchy Justice and