Judgment of the Court but of the Coroners of the County against the Defendant for his contempt in not appearing upon the Exigent that he be outlawed there this Court hath a power to reverse that Judgment within themselves by a Writ of Errour which may be called a Writ of Errour coram nob residen and this appears by the Register of Writs folio 133. Title-errour in these words Rex c. Dilect fidelib suis F. P. Milit. Capital Justic nostro Sociis suis Justiciariis nostris ad placita in Cur. nostra coram nob tenend assign Salutem Quia in recordo processu ac etiam in promulgatione utlagariae in T. S. nuper de K. in Com. H. Yeoman in London nuper promulgat coram nobis ut dicitur retornat Error intervenit manifestus ad grave dampnum ipsius T. sicut ex querela sua accepimus Nos error si quis fuerit modo debito corrigi eidem T. plenam celerem Justitiam fieri volentes in hac parte vobis mandamus Quod si utlagaria praedicta coram nobis retornat existit tunc visis recordo processu utlagariae praed vocat coram vobis quos in hac parte fore videritis evocand ulterius pro adnullatione utlagariae praedictae fieri facias quod de jure secundum legem consuetud Regni nostri Angliae fuerit faciend T. c. But this Writ of Errour is not to be made by the Filizer although inserted here but as all others doth belong to the Cursitor to make the which together with the Return thereof and all the Process of Outlawry thereupon must be entred on the Filizer's Rolls of that County where the Action lies and Bail must also be given as in other cases of reversal And indeed were it that such Writ of Errour could not be brought returnable in this Court but in Parliament considering their intervals what great prejudice would arise thereby to such Defendants against whom all Writs and Process are duly returned and filed which the Attorney for the Plaintiff may doe if he think it fit though it is usual to forbear filing of the Proclamation thereby to let the Defendant come in if he will to reverse the Outlawry for want of a Proclamation by motion in Court as before is set forth and so may appear to the Action And this short account may suffice as to this matter it being but very seldom used to file all the Process whereby to put the Defendant to bring a Writ of Errour to reverse such Outlawry How to proceed to the Outlawry after Judgment IT hath been made a Question whether such Process could lie in this Court or not and the reason alledged hath been for that after a Recovery of a Judgment had and obtained although upon an Action brought by Original Writ such recovery is a Debt and no Action will lie for this it being grounded upon matter of Record but an Action of Debt in which Action this Court hath not used to proceed by Original Writ But in answer thereunto in this Case the Plaintiff doth not bring his Action but onely as it were pursues the having of his Execution to which end the Attorney for the Plaintiff is to take out from the Filizer a Capias ad satisfaciendum directed to the Sheriff of that County where the Action is laid and upon a non est inventus returned and filed the Filizer of that County will make out an Exigent post Capias and as is said before in the said Statute of the thirteenth year of his now Majesty's Reign which hath made a provision there for the proceedings in such Cases that there must be fifteen days between the Teste and Return of such Cap. So that if there were nothing else to prove it but the words of that Statute that were sufficient in it self But it may easily be farther proved that several Filizers of this Court have made out the same for several Attorneys It appears by the late Filizer of London's Books that in 9 Car. primi he made out one for one Barnard an Attorney and the like in the same year for one Woodward an Attorney and in the year 1651. the like for one Walpole an Attorney and in the year 1662. the like for one Marshall an Attorney all Attornies of this Court and the now Filizer of Yorkshire hath done the like and also the now Filizer of London hath done the like and that not onely upon Judgments recovered upon Actions brought by Original Writ but also upon Judgments affirmed upon Writs of Errour brought upon Judgments given in inferiour Courts in Actions of the Case and the like Actions that are usually brought in this Court by Original Writ And this Proceeding being very rare and seldom that it runs to so far a Line a few Precedents in this nature must serve the turn and may be sufficient to prove that it is at the Election of the Plaintiff if he pleaseth to proceed as well to the Outlawry after Judgment whereby the Defendant is again warned as it were to come in and pay the Plaintiff his damages recovered as to bring any action of Debt upon the said Judgment Somewhat concerning Imparlances upon Suits brought by Original Writ IT is to be presumed the course of this Court in this particular is not altered since the year of our Lord 1654. wherein in Michaelmas Term in that year this Court made several Orders and Rules and published them in Print under the hands of the then Judges to wit Henry Rolls Richard Aske and Richard Newdigate and among them these following For asmuch as some inconveniences do some times happen to the Plaintiffs by entring their Declarations in special Actions It is therefore ordered that the Plaintiff in such special actions shall have liberty to enter Imparlances the next Term following entring the same of the first Term with an Incipitur as it hath been usual and that all other Imparlances be duely entred before any Issues Demurrers or Judgments thereupon be entred That if a Defendant appear the first Term and give no rules to declare the Defendants Attorney may the second Term be compelled to accept a Declaration with an Imparlance and the Declaration may be entred as of that Term with an Imparlance over to the next Term or in the first Term with an Incipitur as before as the case shall require That if the Plaintiff declare not the second Term though the Defendant give no Rules yet a Non-suit may be entred at the end of the second Term upon a continuance over by him by dies datus but not the third Term or after Upon a mere real action an Imparlance to be of course That in Ejectment or any personal Action if the appearance be the first return of Hilary or Trinity-Term no Imparlance without consent or special rule In causes other than London or Middlesex if the appearance be before Crastin Martini or Mensem Paschae no
Measure the Secondly delay of Execution after Judgment had and obtained IT is very well known to all Practicers I presume in this Court that in all actions brought by Bill in this Court in which after the Plaintiffs have recovered and are ready to take out Execution that a Writ of Errour may be brought thereupon by the Defendant returnable in the Court of Exchequer-Chamber and very easie at all times to be purchased but in all actions brought by original Writ and Judgments thereupon had and obtained no Writ of Errour lieth thereupon but must be returnable in the high Court of Parliament and that not so easie to be purchased the charges thereof being very great the Fees being most or all of them double over and above what those are of Writs of Errour returnable in the said Court of Exchequer-Chamber and upon the affirmation of such Judgment in Parliament there is always very great costs awarded and taxed to the Defendant in the Writ of Errour who is Plaintiff in the action for delay of his Execution occasioned by such Writ of Errour besides no Writ of Errour can be obtained in such case but when there is a Parliament in being for no Writ of Errour can or ought to be returnable ad proximum Parliamentum in regard it would be so great a prejudice and delay to the Subjects Plaintiffs in such actions the times of convening of Parliaments being so uncertain and onely lying in the King's power as Supreme it being his Royal Prerogative to Call Prorogue Adjourn and Dissolve them when he pleaseth So that for the reasons aforesaid Writs of Errour are seldom brought upon such Judgments as are recovered upon actions brought by original Writ Nay yet farther also after all this when such Judgments before obtained by Bill are affirmed upon the Writ of Errour in the Exchequer-Chamber yet may a Writ of Errour per Stat. de Anno. 27. Eliz. Cap. 8. be brought returnable as aforesaid in the said high Court of Parliament to the intollerable delay and vexation of the Plaintiffs in such actions a thing which the common Law of England in its own nature abhors and detests it being Festinum Remedium and its property such as in some reasonable time suum cuique dare and therefore it is certainly the best way so to bring actions and after such a manner especially where Titles of Land are concerned or great damages likely to be recovered that so after Judgment had Execution may not long be delayed which is for the good and interest of the Subjects who are Plaintiffs in such actions That against some sort of Persons and in Thirdly some sort of Actions there is no other way to proceed in the said Court but by Original Writ BY the Law of this Land no Peer First as to Persons thereof ought by his Body to be taken or arrested by virtue of any Writ or Process in any Civil Cause whatsoeever But although he may not be arrested yet may an Original Writ of Pone in the nature of a Summons as the Case requires issue out of the High-court of Chancery to cause him to appear at the return of such Writ in this Court there to answer the Plaintiff in such Writ named to his Complaint therein mentioned and if the Sheriff to whom such Writ is directed do thereupon return that he hath taken Pledges of such Peer to appear in this Court according as by the said Writ he was commanded and he do not appear accordingly Then upon such return there may be had from the Filizer of the said County a Writ of Distring directed to the said Sheriff commanding him that he distrain such Peer by all his Lands and Chattels c. in order to cause him to appear and if he do not thereupon appear and such Sheriff return issues thereupon ad valentiam c. Then the said Filizer may make forth an Alias distring and also upon return thereof a Plur. distring ad infinitum untill such Peer do appear and it is the usual course for such Sheriff to increase or double the issues upon every return but if he return but small issues the Plaintiff if he pleases may move this Court that such Sheriff may return better Issues that is to say greater Issues all which Issues must be by the Plaintiff's Attorney brought into the Filizer's Office who made out such Distring and from thence estreated into the Court of Exchequer there to be levied upon such Peer's Lands and Chattels by way of forfeiture to the King for his not appearing as aforesaid And upon a nichil habet returned by the Sheriff upon such Distring there may go out a Testat distring into another County where such Peer hath Lands or Chattels and be proceeded upon as aforesaid But if in case that such Sheriff do return likewise a nichil habet upon such Writ of Pone before-mentioned then the Attorney for the Plaintiff may have an alias or rather a Testat Pone from the said Filizer directed unto the Sheriff of that County where such Peer liveth and hath sufficient and upon a return of Pledges taken as aforesaid the said Attorney may proceed thereupon by Distring ad infinitum in form aforesaid And besides such honourable Persons as Peers who for their honour are said to be à Latere Regis and are protected by Law from attaching or arresting by their Bodies in all Civil Causes as is before said There are other Persons that in their politick capacity cannot be arrested or attached such are all Corporations and Societies of men that act all under one Common Seal of their Corporation as the Mayor Aldermen c. of any City The Dean and Chapter of W. The Master Wardens and Fellows of a College and the like and any Company incorporated in the City of London or elsewhere And likewise all Hundreders in any County which are liable to be sued upon the Statute of Huy and Cry where Robberies are committed and Felons escape such Bodies of Men being very numerous and no single Person in his natural capacity bound to answer in any Action whatsoever but yet they may be proceeded against to be made appear and answer in the same manner and way as the Peers of this Realm may by Distring ad infinitum and after Judgment had any of their Goods and Chattels may be taken in Execution and if it be in the Case of Corporations they must by their bye Laws apportion the Levari upon the rest and thereby ease him or them whose Goods are taken and if it be in the case of Hundreders then any Person or Persons grieved may complain to two of the Justices of the Peace of the County wherein such Robbery was committed whereof one to be of the Quorum who have full power by the Statute of 27 of Eliz. cap. 13. to tax and rate the said Hundred for and towards an equal contribution of the damages recovered that so the burthen of the Execution may
as is said before was one of those Attornies that made the presentment Trin. 9. several Filizers entred in all 22. Rolls and in them 23 Issues general and special in some of which Gilbert Eveleigh was Attorney for the Plaintiff one that was heretofore well known unto the now Secondary he being his Entring Clerk and filed his Rolls for him as I am informed Mich. 9. the like Hil. 9. several Filizers had 27 Rolls entered several Issues and Judgments by defalt and one Issue is in a Quare Impedit between Noy the Attorney General and the Bishop of Lincoln So that you see here the Filizers are not stinted to 20 Rolls as now it is usual to leave so many for them the cheif Clerk's Rolls beginning commonly at 20 but they may go farther if their number of causes do require it Paschae 10. Trin. and Mich. prox several Issues and Hil. prox 13. Issues and Judgments by defalt and in Trin. 11. and Mich. and Hilary next the like In Paschae 12. two Issues one wherein the aforesaid Merefield enters an Issue in London wherein one George Brome was Attorney for the Plaintiff who as I have been informed was soon after that Secondary of the Court and certainly he well understood what he did or else he was not fit to be in that place who was to give directions to others in Trin. 12. Mich. and Hil. prox Paschae 13. Trin. Mich. and Hilary prox the like in one of which to wit in Hil. 12. the aforesaid John Woodward was Attorney for the Plaintiff In Paschae 14. Rotulo 7. a replevin special plita Judicium sur inde pro le avowant breve de Inquir agard Rotulo 12. Williamson a Filizer enters an Appeal de mort Trin. prox six Rolls of Imparlances Mich. and Hilary prox several Issues entred by the said Merefield and one Sommers then Filizer of Middlesex and other Filizers and Imparlances and Judgments by defalt and in some of those Issues the Plaintiffs themselves were Clerks to the then cheif Clerk Paschae 15. the like Trin. 15. the like in 14 several Issues and Judgments by defalt and in one of the defalts upon which there is a Writ of Inquiry awarded and Judgment thereupon the aforesaid John Woodward was Attorney for the Plaintiff and Woodward Senior Filizer and there also one Rott a Filizer enters process in appeal de mort Mich. and Hil. prox the like as to Issues and Judgments by defalt one wherein Harman Atwood one of the Clerks to the then cheif Clerk was Attorney for the Plaintiff and as able a Clerk as any was in his time in Paschae 16. Rotulo 19. the said Merefield enters as Filizer of London an Issue in London in ejectment inter Lloyd Hide verdict and Judgment Cecill Attorney for the Plaintiff and Antrobus one of the Attorneys that made the said presentment for the Defendant who afterwards brought a Writ of Errour in Parliament and the Judgment there affirmed and the affirmetur entred also on the said Issue Roll Trin. Mich. and Hil. the like as to Issues and defalts Paschae 17. Trin. prox the like and in the last no less than 13 Issues and one defalt in Mich. prox the like in Hil. prox Rotulo 20. the said Merefield entred an Issue in t Hunt one of the Clerks to the then cheif Clerk c. Plaintiff and Brough Defendant breve erroris super inde in Parliamento Judicium affirmetur entred also The Filizers Rolls then reached there to number 24 Paschae 19. Trin. prox the like as to Issues and Judgments by nil dicit Hil. prox Issue in Essex and tryed at the Bar and Judgment entred Paschae 21. Trin. Mich. and Hil. prox the like as to Issues and defalts and in the aforesaid Trin. Term a Scire facias and Judgment upon it Paschae 22. the said Merefield Filizer entred a Judgment in case in London inter Ingram and Inning Hewson Attorney pro Quer. and Gerg pro Defendant two very able Clerks unto the then cheif Clerk and breve de errore in Parliamento super inde affirmetur entred likewise Trin. and Hil. prox several Issues Paschae 23. Rotulo 19. the said Merefield entred an Issue in London inter Finch Wallis Hoddesdon Attorney pro Quer. who was afterwards Secondary of the Court and certainly knew what he did Trin. prox and Trin. 24. the like as to Issues and defalts in the last of which Rotulo 16. Wooddeson Filizer of Yorkshire enters two Issues wherein one Henry Thompson was Attorney for the Plaintiffs and one William Livesay for the Defendants I cannot say it was the now Secondary although I never heard of any other about that time of that name but I presume it was not he because I believe he would have informed the Attorney for the Plaintiff that he ought not have entred it on the Filizer's Roll and in Mich. and Hil. 24. divers Issues and defalts And now having passed through the Reign of that glorious Martyr let us see what was done and practised in this case in the troublesome times of War Anarchy and Confusion when all things were in disorder and turned upside down It appears that in Trin. 1649. and Hil. following there were An. Dom. 1649. the like Issues and defalts entred In Paschae 1651. Rotulo 19. the same Merefield enters a defalt for one Holworthy Plaintiff who was one of the Clerks to the then cheif Clerk this was the Term in which the Law suffered so great a change as to have all the proceedings of it in English yet then it suffered no mutation as to the entring with the Filizer so in Trin. Term following Ironmonger Filizer of Bedfordshire entred two Issues wherein one Blincoe was Attorney for the Plaintiffs he was one of the Clerks of the then cheif Clerk and kept the Files of Writs in the then Kings-Bench-Office In Hil. 1651. Rotulo 19. T. Stone a Filizer inrolls an Indenture inter Whittle and Whittle and the Filizer of Essex likewise an Issue in ejectione firmae inter Wilks and Hil. Brickwood Attorney for the Plaintiff and William Livesay for the Defendant whether this was the now Secondary of the Court or not I know not Trin. 1652. the like inter Garret and Parker An. Baker Attorney for the Plaintiff a very able Clerk and one of the Clerks to the now chief Clerk and is yet living and in Hil. prox Rotulo 16. the aforesaid Wooddeson entred a Judgment in replevin with Retorn habend a Cap. in Withernam In Paschae 1655. Rotulo 18. an Issue and Rotulo 19. another Indenture inrolled In Hil. next Rotulo 12. F. Gregg Filizer of Derbyshire and at the same time one of the Clerks to the now cheif Clerk enters special pleadings in replevin non pros super inde cum retorn habend Paschae 1656. Roll 17. another Indenture Hilary 1656 Rolls 7. 8. 9. 10. 11. several Issues and a defalt Paschae 1657. and Trin. following the like Paschae 1658. Rotulo
Issues and other Entries on their own Rolls as hath been unjustly reported of them But now because the later Precedents may be thought the best proof the former being looked upon by some persons it may be as obsolete by reason of their antiquity these Years following of King James have been carefully and with great labour and pains searched in order year by year It appears then in Paschae 15. ejusdem Regis one Wythe a Filizer enters an Appeal of Murther and in Trin. 15. a Judgment by defalt and a Writ of Enquiry of Damages awarded Mich. 16. one Shaw a Filizer enters an Issue wherein one Edmund Dennye who was one of the Clerks to the then chief Clerk was Attorney for the Plaintiff and afterwards was one of the Jury of Attornies that made the Presentment of the Fees at the end of this Book And in that Term also Walker and Williamson two Filizers do enter two appeals of Murther In Hilary 16. the reversal of an Outlawry pro defectu Proclamationis and divers Issues Trin. 17. the like reversal of an Outlawry and divers Issues one of them in Replevin and Judgment thereupon by Percival a Filizer and several Judgments by defalt In one of which one Tetlow was Attorney for the Plaintiff and in another one Tippet and in others one Harborn and one Bunce were Attornies for the Defendants all which four last Attornies were four of them also that made the Presentment hereafter mentioned In Mich. 17. nil dic in cas In Hilary 17. Scire facias and Judgment in Replevin and several Issues In Paschae 18. Special Plea and Issue thereupon and nil dicit in Replevin upon a Writ of Second deliverance Trin. 18. several Issues and a Defalt Mich. 18. three Defalts Hil. 18. two Issues and two Defalts Trin. 19. the like Hil. 19. two nichil dicits and Writs of Enquiry awarded Paschae 20. Special Plea and Demurrer Trin. 20. several Issues Mich. prox the like and Hil. prox one Dodd a Filizer enters a writ of Right and other Filizers several other Entries of Issues and Judgments in Trin. 21. Hil. prox and Trin. 22. the like Mich. 22. one Seaman a Filizer enters the Reversal of an Outlawry for the insufficient return of an Exigent and to winde up this King's Reign in Hil. prox Edgar Filizer of London so soon as he was Sworn enters an Issue wherein one William Jumper was Attorney for the Plaintiff who was also one of those Attornies that made the said presentment And now we are come to the Reign of Charles the First of ever blessed Memory and because some as I said before look upon the latest precedents to be the best evidence I beg leave to be more prolix in this King's Reign than in the former for these were all searched likewise gradually Some Terms having no such Entries I have here omitted In Trin. 2. Mich. prox ejusdem Regis An. Car. Primi there are divers Issues and Defalts entered and also the Reversal of an Outlawry In Paschae 3. the said Edgar enters four Issues in London Hil. 3. Paschae 4. the like by other Filizers Trin. prox several Issues and Judgments and among them the said Edgar enters an Issue by Bill after an Imparlance Mich. 4. the like Issues and Judgments by others and one Jumper aforesaid Att. pro Quer. in one of them nay in Hilary 4. the said Edgar enters other two Issues by Bill a thing which the now Filizers of this Court do not in the least pretend unto but it seems he thought it was as lawfull and as much his right to enter by Bill as it was for the then cheif Clerk or Prothonotary to enter by Writ and was then an occasion of very great difference between that Filizer on the behalf of all the other Filizers and the then cheif Clerk or Prothonotary who had entred by Writ And upon good ground it is believed that the presentment of the Fees hereafter mentioned did settle the matter between them being as is supposed procured upon the Petition of the then Filizers to his then Majesty reciting the former narrative who was thereupon pleased in a short time after to grant his Commission to inspect into all the Fees of all the Offices both in this Court and all other his Courts of Common-Law in England and Wales and to settle the same but after what manner the said difference was setled between the then Filizers and the then cheif Clerk is not known but it seems it was not so setled as to take away the right of the Filizers to enter Issues on their own Rolls as by some hath been most falsely affirmed For that they did still continue on to enter by Writ but not by Bill as may appear by Paschae 5. Issue in Ejectment verdict and Judgment entred by Fisher Filizer of Dorset-shire in Trin. 5. the aforesaid Edgar entred an Issue in London and Clerk Filizer of Norf. entred two Issues Hil. 5. Gasnold Filizer of Suf. entred a cause against two Defendants wherein the one pleaded and the other suffered Judgment Paschae 6. nil dic in Ejectment by the said Edgar and an Issue wherein John Woodward a very able Clerk of the then cheif Clerk was Attorney for the Plaintiff one very well known to some of that name now in this Court and the said Clerk was the Filizer this I mention more at large and many other I might to shew that the Filizer did not enter it as he was Attorney in the cause himself but for another Attorney but if he had I think it had argued no less a right in himself to enter than if he had entred it for another Attorney and a multitude of those former Entries I have already mentioned as well as those I am yet to set down are made for other persons Attornies for the Plaintiffs as may appear by the Records themselves In Trin. 6. divers Issues and Judgments and Scir fac sur Judic in replevin Mich. 6. Trin. 7. Mich. 7. the like wherein Merefield the then Filizer of London enters an Issue for one Creme one of the Clerks of the then cheif Clerk Plaintiff who did not certainly enter it with the Filizer to have his privilege allowed him for that he might without doubt have had if he had entred it with his own Master the cheif Clerk but questionless he did enter it with the Filizer for that he thought in his Judgment he ought so to do the said Filizer having made out all the former process and also in that Term the Filizer of Lincoln enters an Issue upon a special Plea Verdict and Judgment Hilary 7. the like by Merefield and others Paschae 8. an Issue Defalt and a Demurrer in three several causes Trin. Mich. and Hil. prox the like Paschae 9. the said Merefield enters an Issue wherein Hatton Berners was Attorney for the Plaintiff and Clerk to the cheif Clerk and another wherein the aforesaid Jumper is Attorney for the Plaintiff who
with the Custos brevium if it be not in Middlesex if so then with the Lord Cheif Justice and some time before the day in Banck which is always the Essoin-day of the next Term after any Assises if the action lie in the Country or if in London or Middlesex then before the next Essoin-day after the Tryall he bringeth the Issue to the said Filizer to be entred upon his Rolls and in the aforesaid Venire facias and Distring there need not to be 15 days as in other process before Issue joyned between the Teste and return of each Writ and this appears by the Statute before mentioned made in the 13th year of his now Majestye's Reign The words of which Statute amongst other matters are these And whereas very many Suits commenced by Original Writs have been protracted and long delayed from Judgment and Execution by reason of the necessity of having fifteen days at the least between the days of the Teste and the days of Return of Writs now used in personal Actions and also in Actions of Ejectione firmoe for Lands and Tenements For remedy thereof and for the more easie expediting Trials and the better and more speedy executing of Judgments for the time to come Be it farther enacted by the Authority aforesaid That in all Actions of Debt and all other personal Actions whatsoever and also in all Actions of Ejectione firmoe for Lands or Tenements now depending or which at any time hereafter shall be depending by Original Writ in either of his Majesty's Courts aforesaid after This Court of King's-Bench being before mentioned in this Statute any Issue therein joined to be tried by a Jury and also after any Judgment had or obtained or to be had or obtained in either of the Courts aforesaid there shall not need to be fifteen days between the Teste-day and the day of Return of any Writ or Writs of Venire facias habeas Corpora Jurator or distring Jurator Writs of Fieri facias or Writs of Capias ad satisfaciend and that the want of fifteen days between the Teste-day and the day of Return of any such Writ shall not be nor shall be assigned taken or adjudged to be any matter or cause of Errour any Law Custome Statute Course or Usage to the contrary thereof in anywise notwithstanding Provided nevertheless that this A Proviso not to extend to a Capias and Exigent thereupon after Judgment or to a Capias ad satisf to make the Bail liable Act nor any thing therein contained shall not extend or be construed to extend to any Writ of Capias whereon a Writ of Exigent after Judgment is to be awarded nor to Capias ad satisfaciend against the Defendant in order to make any Bail liable but that the same continue and be as if this Act had never been made But to return to our former matter when the Attorney for the Plaintiff hath obtained a verdict and given rules and signed his Judgment he then entreth it up to the Filizer's Issueroll as aforesaid and taketh for his Fees the like Fees as by Bill But if the Defendant appear not at all but suffer himself to be returned outlawed upon the Exigent or Allocat then he bringeth the Exigent to the Filizer that made it out or else he fileth such Exigent himself with the Custos brevium of this Court and then getteth a Certificate from him that it is filed and bringeth it unto the Filizer and then he will make him out either a general or special Capias utlagat And this is all at present that may be thought necessary in this matter by way of direction Onely this let him take notice that Hilary Term is not so convenient a Term to begin to sue to the Outlawry in as other Terms are for the Defendant will not be outlawed then under four Terms although the Action be laid in London because of the short vacation that is between Easter and Trinity Term and in any other he will in three if the Original be returnable the first return of the Term. Also to observe in his Writs if he make them himself and carry them to the Filizer to be signed that as a man is always said to be utlagat outlawed So a Woman is always said to be Waviat waved that is to say derelicta left out or not regarded because Women are not by the Law obliged to be sworn in Leets to the King as Men are And now for the testes and returns of his Process he is hereby referred to a Modus return brevium placed toward the end of this Book And farther let him observe that if in an action of the Case where the cause of action is at large set out the damage be laid in the Writ of Capias to arrest to Ten pounds or above his Client ought to have good Bail but not so if the Defendant appear upon the Exigent or Allocat although it be laid 500 li. damage And if such Action be laid in London the Defendant will be sooner outlawed in respect of the Hustings there than in any County for that they are held in less time than the County Courts are holden in for there must be five Hustings returned upon the Exigents in London and five County Court days in the Counties at which the Defendant hath been called and hath not appeared Also how to appear for the Defendant either upon Arrest or upon the Exigent or upon the reversal of the Outlawry AS to the appearing upon the Arrest Appearance upon arrest if special Bail be required it must be thus The Defendants Attorney must come to the Filizer where the Action is laid and enter his special appearance that is by giving in a note to him of the Bail who they are and where they live and then the Filizer will go with him before some Judge of this Court and put in the Bail before him and then the Defendant's Attorney must give in a note of the Bail and before what Judge put in unto the Plaintiff's Attorney and if he accepts of the Bail he puts his hand to the Bail-piece that he doth so and then he fileth it with the Custos brevium of this Court and if the Plaintiff's Attorney excepteth against the Bail the Defendant must get his Bail to justify themselves before the Judge and yet if after that the Plaintiff is not satisfied with the Bail the Defendant must either put in other Bail or else justify the same upon oath in the Term-time in Court and then the Plaintiff is bound to accept them And as to the Appearance to the Exigent appearing on the Exigent there as is said before no Bail is to be given but onely the Defendant is to enter his appearance with the Filizer per Attorn suum and then taking from him a Supersedeas Quia improvide suggesting such appearance in the Writ which Writ he must deliver to the Sheriff And as to the appearing upon the reversal
Appearance after reversal of the Outlawry it is thus The first thing the Defendants Attorney must doe is to come to the Filizer of the City or County where the Action is laid and know of him when the Plur. Capias was returnable and then search the Filizer's Rolls of that Term and there he will find the Capias alias and plur Exigent and Proclamation awarded together with the return of the Exigent to the Quinto exact upon which the Defendant stands outlawed of all which he must take a Copy from the Roll and then come to the said Filizer to enter upon the said Roll by way of averment a defect in the proceedings either against the Statute of the one and thirtieth year of Queen Elizabeth for want of a Proclamation or otherwise as the case may require and then he prepareth his Bail-piece ready and bringeth the Bail into Court together with the Defendant and then causeth the bundle or file of Writs of Proclamations to be brought into Court and by motion of Counsel at the Bar alledging the want of a Proclamation and upon due search of the said File by the Secondary of the Court and none appearing to the Court to be filed the Outlawry is reversed by the Court which is always pronounced by the Seniour Judge of the Court if he be present if not by the next which reversal together with the names of such Bail who undertook that the Defendant shall appear to a new Original Writ to be brought by the Plaintiff within two Terms against the Defendant and to satisfy the Condemnation if he shall be convicted is all to be entred by the said Filizer up to the Process of Outlawry before entred for entring of which the Filizer's Fees are 4 d. the sheet And the Court of Common-Pleas have used to make such Entries as may appear by certain Orders Vide Praxis utriusque Banci fol. 108. in t alia of that Court made in the second year of Charles the First The words amongst others are these And it is farther ordered that all Reversals hereafter made shall be entred upon the same Roll where the Exigent is awarded being the most proper and fittest place for the safety and quiet of all Persons outlawed and their Executours to find the said Reversal in future times and not upon other Terms and Rolls as is now used Which also by the several Precedents of Entries of Reversals before-mentioned may appear to have been anciently the practice of this Court. And in these and the like Cases the Defendants do in the Common-Pleas appear by Attorney But in this Court the Defendant is obliged to appear in person with his Bail except this Court upon motion give leave to the Defendant to reverse per Attornatum The reason may be presumed to be this because upon all Outlawries in Criminal Causes in this Court the Defendants have been heretofore and now are obliged to appear in person to answer the contempts of the Law to the King and thereby they were immediately taken into custody for such contempts or otherwise disposed of at the discretion of the Court and in every civil Cause likewise it is a great contempt indeed of the Law for the Defendant not to appear after so many several Writs as go out against him before he is outlawed But yet a late Parliament thought the appearing in person so great a grievance to the Subject that it did receive a debate in the House of Commons upon a Bill then brought in but no Act passed thereupon for want of time as is presumed and whether hereafter it may not be a matter fit to be farther debated I shall leave to the wisedom of the great Council of this Nation when assembled in Parliament But to return it may be such Defendant hath been obliged to appear in person out of that high respect that ought to be given to the grandure of this Court the King himself as before is said being supposed sitting there And to be outlawed formerly in the Reign of King Alfred and untill a good while after the Conquest for Felony as my Lord Coke hath it in his First Institutes Cap. Villenage Sect. 197. fol. 128. b. was very dangerous for such Persons might have been put to death by any man as well as a Wolf that hatefull Beast might For utlagatus waviata Capita gerunt Lupina But then saith he no Man could have been outlawed but for Felony But you may see there how this Inhumanity was restrained and altered in the Reign of Edward the Third And now our Laws are made more tender of life though it be of such great Malefactours that so they may be punished or discharged by the hand of the Law onely which nulli facit injuriam And although then none could be outlawed but for Felony yet as he saith there that afterwards in Bracton's time and somewhat before Process of Outlawry was ordained to lie in all Actions that were Quare vi armis which Bracton calls Delicta for there the King shall have a Fine But since saith he by divers Statutes speaking in general of such Proceedings and not of any Court in particular Process of Outlawry doth lie in Account Debt Detinue Annuity Covenant Action sur le Statute de 5 Rich. 2. Action sur le Case and in divers other Common or Civil Actions But to go on he saith farther in his Chapter of continual Claim Sect. 437. That there may be other Causes of reversal besides the want of a Proclamation and that by plea for matters apparent as in respect of a Supersedeas variance or other matter apparent in the Record And yet in these Cases saith he some hold That in another Term the Defendant is driven to his Writ of Errour And farther if the Defendant be arrested by a Capias utlagat he ought not to be discharged out of custody without a Supersedeas for the same as appears by the last mentioned Statute of the 13. of the now King the like certainly is requisite in case where his Goods or Chattels are taken or else if he be taken and would reverse the Outlawry then he may have a Habeas corpus to bring him into Court to reverse such Outlawry But if all the Process to the Outlawry be well returned entred and filed then there is no way to reverse the same but by Writ of Errour which comes in the next place to be handled How to reverse an Outlawry by Writ of Errour IT hath been a received Opinion that no Writ of Errour lies returnable in this Court upon any Action brought by Original Writ in this Court but that it must be returnable in the High-court of Parliament but certainly that must be intended where Judgment is had and obtained upon such Action for every Writ of Errour supposes a Judgment of the Court given for the words in every such Writ are Si Judicium inde reddit sit but in this case where it is no
well known by most Practisers in this Court and shall onely say somewhat of removing Plaints out of such Inferiour Courts as County Courts or Sheriffs Courts and Court Barons or Manour Courts but more especially of County Courts and in them touching Plaints in Replevin there entred and sued without Writ out of the Chancery as it is said in Fitz. Nat. brevium fol. 170. if the Plaintiff or Defendant will remove such Plaints he ought to sue a Writ of Recordare out of the Chancery directed unto the Sheriff of that County in whose Court the Plaint is entred vide the Writ it self there at large which I here for brevity omit whereby it appeareth that the Plaintiff may remove such Plaint by such Writ of Recordare without any cause shewn in the Writ but the Defendant cannot without shewing cause for it in the Writ And the like he must doe in a Writ of Pone which removes such Plaints if such Replevin be sued by Writ out of the Chancery and both these Writs may be returnable in this Court and in the Natura brevium aforesaid you may find several Causes that may be inserted on the behalf of the Defendant and when such Cause or Plaint in Replevin is removed either by the Plaintiff or Defendant for in Replevin they are as it were both Plaintiffs in this Court the Defendant must enter his appearance with the Filizer of that County out of which the Plaint is removed and give a rule with him for the Plaintiff to declare and if the Plaintiff doth not declare by the time limitted in that rule against the Defendant or if he do declare and the Defendant avoweth or maketh Cognizance and upon the Issue tried or by defalt in the Plaintiff the Judgment be for the Defendant or Avowant then the Attorney for such Defendant may have in such case from the said Filizer a Writ of Return habend and Writ of Enquiry for damages and upon the Sheriffs return of this Writ quod averia elongat then the said Filizer will make a Capias in Withernam to take other Cattle of the Plaintiff's and if the Sheriff upon that doth return that the Plaintiff hath no Cattle that he can take in Withernam then the Filizer will make you a Capias against the Plaintiff's Body and so proceed to Outlawry And if the Plaintiff do declare that the Defendant yet hath and doth detein the Cattle c. and the Defendant appears and afterwards makes defalt the Plaintiff shall have Judgment to recover all in damages as well the value of the Cattle as his damages for taking of them and his Costs and to that end the Attorney for the Plaintiff may have a Writ of Enquiry of damages from the said Filizer the same proceedings in case it be in a Replevin for any dead Chattells c. And if a Replevin be sued by Plaint in the Court of any other Lord than in the County Court before the Sheriff as in the Court Barons or Manour Courts there it shall be also removed by a Writ of Accedas ad Cur. and the proceedings therein the same as before is said And if the Sheriff in any case return a tarde there may be an alias and pluries had and if a Replevin be within any Liberty or Franchâ—se and the Sheriff return upon the Writ of Replevin if it be by Writ that he hath commanded the Bayliff of the Franchise who hath given him no answer or that the Bayliff will make no deliverance then the Plaintiff may have a Non omittas to the Sheriff commanding him to enter into the said Liberty or Franchise and make the return and if the Sheriff doe it not then the Plaintiff may have an alias and plur non omittas and so a plur ad infinitum c. But if the Sheriff do not return the plur replevin abovementioned then the Plaintiff may have an Attachment against the Sheriff directed to the Coroners of the said County Vide the Statute de Ann. 17 Car. Secundi nunc Regis c. Cap. 7. made for a more speedy and effectual proceeding upon Distresses and Avowries for Rents in which you will find some former proceedings in Replevin much altered by that Statute Some Reasons impartially offered to shew how it hath come to pass that the Practice in this Court by Original Writ hath decreased and that by Bill increased and what hath occasioned some Entries of Issues and other proceedings to be made as well on the Chief Clerk's Rolls as on the Filizer 's Rolls THE first and greatest cause or reason as is imagined of the increase of the one and the decrease of the other hath been and now is from the setled residence of the Kings of England at their Palace of Westminster in the County of Middlesex for in that County where they have resided it hath always heretofore been used in such Actions as were not proceeded in by Original Writ to take out a Bill or Precept rather and more properly directed to the Sheriff of that County to take the Defendant to bring him before the King at a certain day after a certain Return in the Term and then that Office of the Bills of Middlesex was an Office of great profit although but small Fees belonging to it by reason of the great number of them that were then taken out and upon a non est inventus returned there went out a Testatum which hath since that time gained the name of a Latitat into any other Foreign English County and this was grounded upon a Plaint brought before the King himself at Westminster and that it was so heretofore may appear by several Files of them now remaining in the former upper Treasury belonging to this Court a Copy of such Plaint and Precept I shall here set down as followeth viz. Philippus Byrd queritur de Johanne Middles ss Bateman de eo quod ipse decimo die Junii Annis Regnorum Domini Philippi Dominae Mariae Regis Reginae nunc primo The Plaint secundo vi armis videlicet gladiis c. Clausum ipsius Philippi apud Hendon in Com. predict fregit intravit Et alia enormia ei intulit ad dampnum ipsius Philippi Centum Solidorum contra pacem dicti Domini Regis dictae Dominae Reginae nunc c. Pleg de pros Johannes Doo Richardus Roo On the back of which Bill or Plaint it is thus written Ca ' r. Jovis post 18. sancti Martini Precept est Vic. quod attach Johannem Middles ss The Precept Bateman Ita quod sit coram Domino Rege Domina Regina apud Westm die Jovis prox post 18. sancti Martini ad respondend Philippo Byrd de placito transgr Et habeas ibi tunc hoc precept per. Bill Coverd On the back of which Precept it is thus returned Def. infra nominat nichil habet in balliva nostra per quod possit attach Respons Thomae Leigh Johannis