Statutes do direct or else a not guilty The Action of Curia Claudenda and do muliere abducta cum bonis viri are in some respects especially that of de muliere abducta c. in the nature of an Action of Trespass the Curia Claudenda being an Action brought by one against another for not securing or enclosing the Fence or Hedge lying between both their Grounds and time out of mind as urged by the Plaintiff usually made up and fenced by the Defendant and all other Owners of his Lands the other de muliere abducta c. is for taking away the Plaintiffs Wife with some part of the Plaintiffs Goods without alledging of which Goods and that also in particular the Action will not be well laid In all my time of Practice I saw but one Action of each of these that is one of Curia Claudenda in Flint-shire about 30. years ago and one de muliere abducta c. in Denbigh-shire 24. years ago wherein 200. l. Damages were recovered The Rationabili parte bonorum is when a Widow upon the custome of North-Wales sues the Executor of her Husband for the moyety of her Husbands personal Estate or when a Brother or Sister upon the same custome sues for a share as may more at large appear in Law Books in which Action all is recovered in Damages being what the Plaintiffs Witnesses can make appear the Moiety to the Wife or the share of the Brother or Sister to be really worth through all the personal Estate Audita Querela lyes when one is apprehended and imprisoned for Debt and Damages recovered against him and against another person who was principally Bayl or Surety with him for the same Debt and when that other person had formerly been apprehended for the self same Debt and Damages and hath satisfied the same for it will not lye without real payment or satisfaction was made by the other person that was formerly taken in Execution though he never lay so long in Goal and came out some way or other without satisfying the party Plaintiff or it will lye for one as became Bayl or entred into Recognizance though the Debt or Recognizance be not really paid and satisfied but the Audita Querela â—n that Case must be brought before the parties attain to the full years if the Audita Querela be made good but a discharge out of the Goal and from the Recovery Recognizance or Execution there are original Writs at the Sessions not spoken of before videlic t a Writ of of Error a Writ of false Judgement a Certiorari or Recordari The Writs of Error is to move the Record of any Recovery had in any inferiour Court which is a real Court and so a Court of Record into the great Sessions so that the Errors therein if any be may be there heard and examined A Writ of false Judgement or sometimes called Accedâ—s ad Curiam is to remove the Record of any Recovery in a mean or base Court which is a Court that hath not power to hold Pleas but under forty shillings to the Sessions A Certiorari for removing any Action depending before it be tryed by Jury in any real Court or Court of Record which hath power to hold Plea above forty shillings which are Courts held by Charter in Corporations or Lordships and in some Lordships Marchers by prescription unto the Cost of the great Sessions there to be proceeded upon and go to Issue and Trial if the Plaintiff when it is removed will prosecute and follow it A Recordaâ—e is to remove any Action begun and not tried in the said base Court under 40 s. to be proceeded on as is aforesaid touching the Certior at the Sessions Now for proceedings in the said Writs of Errours false Judgement Certiorari and Recordari thus much which followeth The Writ of Error after it is granted must be delivered to the Steward or Judge of the Court where the recovery was had and he must certifie the Record to the next Sessions or an Attachment lies against him And when it is there entred he that put in the Record must assign Errours by his Councel and sue forth a Scire facias ad audiendum Errours directed to the Sheriff at the return whereof if a Scire fcci be returned the Defendant in the Writ of Error must appear and plead to the Assignment of Errours which is In nullo est erraetum in Common Pleas and if he doth not appear and plead the Court may proceed by default to hear or rather to examine the Errors and in both cases there must be a day appointed for reading the Record and then after part thereof is read the Errors are opened by Councel and if the Cause be argued on both sides thereupon the Court will either reverse or affirm the Judgement and if Judgement be reversed the Plaintiff in the Writ of Error shall have his Costs but there are no Costs upon reversal of a false Judgement as shall be said hereafter And if Judgement be affirmed the Party shall have Execution as well upon his former Judgement as for what Costs and Damages shall be awarded by the Court to him for that delay A Writ of false Judgement is directed as well for Judgement given in other mean Courts as in his own County Court for such as are Judges in those Courts have not the return of Writs but in this Writ there is a far shorter proceeding when the Record is put in then in the Writ of Error for here needs nothing after it is put in but Councel to move to have it read which being done Judgement is either reversed or affirmed If reversed the Defendant in the Court below who is the Plaintiff in the Writ of false Judgement is to have a Writ to be only restored to what he hath lost that is to what he hath paid upon the former Judgement if any to have no Costs but the bare sum he was driven to pay upon the former recovery in the Court below If affirmed as seldom or never it is then the Plaintiff in the inferiour Court is to have Execution out of the Sessions for what he formerly recovered without Costs A Certiorari is to remove an Action above 40 s. as is aforesaid out of a real Court or Court of Record before any Judgement or Trial be had therein in that Court. And in that and in the Recordari such as sue them forth are to deliver them into the Sessions by their Attornies having first called them from such as are to return them to wit the Steward or Judge of the Court of Record for the Certiorari as in the Writ of Error before and to call to the Sheriff for the return of the Recordari to whom the same as before is said 〈◊〉 false Judgement is directed and are to be proceeded upon as in all other Actions of the nature they be from the beginning only that Writ serves for an Original or a Q 〈◊〉
Defendant die or against the Son and Heir of the Defendant or against the ter-Tenant of the Lands which the Defendant held at the time of the Judgement And also when a single Woman marries after she recovers she must have a Scire fac in her and her Husbands name or where there are two Plaintiffs and one died after Judgement and before satisfaction there the Survivor must have a Scire fac and it is very fit a Scire fac be where two are such joyntly and one of them died after Judgement and before satisfaction that a Scire fac be had against thâ— Survivor Defendant that the future Execution be only against the surviving person for otherwise it muâ—â— be issued out against him that is dead as well as against him that is living for otherwise no Record will warrant the issuing of any Execution foâ— or against them who before that Scire facias were therein never mentioned in all which Scire facias theâ—â— must be a mention or suggestion 〈◊〉 the Cause thereof In a Scire facias against one Executor or Administrator for a Debt recovered against the Testator or Inteâ—state he may plead as he might to as Action commenced for the same thing against him Ne unques Exec. c. oâ— Administratio nunquam Commissa fuit but his safest course will be Plene administravit but if there were anâ— Judgement against the Testator 〈◊〉 Intestator that must be pleaded iâ— special or otherwise he shall have 〈◊〉 benefit thereof when he comes 〈◊〉 discharge the Assets that shall be charged upon him upon his general Plene Administravit The Scire facias against the Heir is where any Heir hath any Lands fallen upon him from Father or Kinsman without any conveyance formerly made to him thereof or against the ter-Tenant is where any one doth occupie and hath purchased Lands that were the Lands of him against whom any Recovery was had at the time of the Judgement given for all such Lands are lyable to the Judgement and in these Cases the Defendants in the Scire fac are to appear and defend themselves if they can the ter-Tenant by pleading some Conveyance made of the Lands before Judgement or something else as his Case requires and the Heir defendeth himself most commonly by pleading Riens per discent which is sometimes generally and some other times specially pleaded now to plead it specially is to say he hath nothing by discent praeter c. to wit save ten acres of Lands or such a quantity in such and such Townships for if the Heir be sure the Plaintiff cannot fasten that he hath any Lands by discent he may safely plead the general Riens per discent but if he hath not from his Father or Ancestors some thousand acres and but one acre or two by discent and all the rest being a thousand or two thousand are not so he must except the two acres in his Plea without which the Plaintiff upon the general Issue pleaded if he prove the Defendant hath one or two acres by discent shall have a Writ not only to extend that but all the rest of the Land that he holds as were the late Lands of him against whom the Judgement was though he held them by conveyance and came not by discent whereof he must be seized in Fee-simple at the time of the Writ brought against him or else he is not lyable and upon Judgement had against Heir and ter-Tenants the Plaintiff is to have Execution to extend the whole Lands thereto lyable till the whole money recovered be thence levied If Judgement in any Action or on a Scire fac against an Executor or Administrator the first Execution is a â—ieri facias de bonis testatoris for the â—rincipal Debt and bonis propriis for â—he Damage thereon if the Sheriff â—o return that the Executor or Administrator hath no Goods unadâ—inistred then the Plaintiff is without remedy against the Party but is â—y an Action upon the Case to take is remedy against the Sheriff for â—â—e return is not held sufficient or â—ny good return in Law but if the â—heriff returns a Devastavit c. then Fieri facias de bonis propriis goes out â—o leavy the whole as well the Debt â—â—s the Damage out of the Executor or Administrators own Goods which return also proves sometimes very dangerous to the Sheriff for â—n returning of a Devastavit against â—ome Executor or other wherein â—evera it lies not that Executor may â—â—ring his Action against the Sheriff â—nd recover very great Damage against him therefore the Sheriff is â—n a strict case and he should do nothing rashly but all things warily â—nd advisedly and so he cannot do amiss And upon that Fieri facias bonis propriis if the Sheriff return nibâ—habet c. then the Party Plaintiâ—â— shall have a Capias ad satisfaciend against the body of the Executor oâ— Administrator There are many other things which are requisite for an Attorneys knowledge as the knowledge in the solicitation of quashing or traversing of Indictments or Presentments aâ—â— in levying of Fines and suffering common Recoveries for better assuring of Lands and some other things which would prove too tedious to insist upon for I confess have been in some things before oveâ— tedious already therefore I shaâ—â— leave them to learn and to seek oâ—â— by their own industry the knowledge of them if they conceive the pleasure in them or the gain gottâ—â— thereby will countervail their painâ— And indeed I rather omit to speak any thing touching the quashing and traversing of Indictments for it matters not much what such Person 〈◊〉 gives occasion to be presented oâ— indicted may suffer for defect oâ— knowledge that way in his Attorney for Councel if well paid as such Person to avoid their conviction and consequently their penalties and punishments will or at least should do will sufficiently direct them And for the knowledge in suffering of common Recoveries and levying of Fines it belongs altogether to Councel to be managed and directed without an Attorney be in something able to ease the Councel as by Drawing Titlings and Concords which an Attorney who that way obtained good experience may do otherwise I hold him not fit to meddle therein or to be instructed least trusting to his Instructions without further knowledge he may spoil his Clyents Conveyances and thereby do him therein more harm perhaps then by his negligence or ignorance in dealing for his Clyent in several petty Causes It is very behoovefull for an Attorney to know at least the forms if not the nature of all Writs and the Retorns of them especially of such Originals second Writs Jury Writs and Writs of Execution as be most used and expedient for his practice And to know well the Fees of the Prothonotory and the rest of the Officers of the Court for without some knowledge in these Writs and Retorns his Clyents Cause may be delayed and perhaps sometimes overmuch
Weeks before every Great Sessions by Warrant from the Chief Justice of the Circuit a general Writ of Summons is sent forth by the Prothonotary to the Sheriff by which the Sheriff is Commanded to Proclaim throughout his County that the general Great Sessions for the County is to be holden at such a day and place And that he Summon and give Warning to all Justices of the Peace c. Officers and other Persons whom it doth concern that they appear at the day and place limited by the said Writ Which Proclamation being made on a Market-day all Persons whatsoever by the course there holden whether Plaintiffs or Defendants in Suits before depending or others who intend to Commence any Suits and also all such who suspect any Suits may be brought against them are at their perils according to the general Summons before mentioned to have their Attornies in Court to prosecute and defend the said Suits The Sessions being begun The Plaintiffs who are to Commence Actions do retain their Attornies and bring their Actions either by original Writ as is usual for all kind of Debts not finable upon the Original which Writs are made returnable the first day of the Sessions and dated fifteen days before the Sessions or else by Bill or Queritur which may be either for Debt Trespass or upon the Case And whether it be by Original or else by Bill or Queritur the Defendant upon the Original and first Bill or Queritur and all Process before appearance thereupon awarded is ever called in open Court to come forth and answer to the Plaintiff in such or such an Action as the Case is and if by Original the Defendant being thereupon called and not appearing then a second Writ of Summons is awarded returnable the next day after which being made by the Prothonotary and sealed with the Judicial Seal of the Court and returned by the Sheriff the Defendant is thereupon a second time called openly in Court And if then the Defendant appear not the Plaintiff hath Judgement by Default So it is also in case the Action be brought by Queritur or Bill saving only that Judgement is not in that case had before a third Writ of Summons issue and thereupon the Defendant being the third time called do make Default whereas if by Original there needs but one Writ of Summons besides the Original it self The first Bill or Queritur commonly bears date the first day of the great Sessions or the day when the Attorny sueth it forth and is returnable the next day after the date of it whereupon if the Defendant being openly called in Court appear not then a second Writ to Summon the Defendan-again is awarded whereupon if the Defendant being the second time called appear not then a third Bill or Queritur to Summon the Defendant is awarded whereupon if the Defendant being called a third time appear not then the Plaintiff hath Judgement by Default And these Writs are successively awarded and made returnable de die in diem and the Judgement had in three dayes at the most in cases of debt if the Defendant appear not but if the Defendant appear then the Plaintiffs Attorney declares and upon the Defendants pleading and not confessing the Action then issue is joyned the same Sessions and tryed the next Sessions after And it is here to be observed that the awarding of these Process and obtaining of these Judgements by Default depend upon the Sheriffs return of any â—â—e said Writs whether the Actions be brought by Original or by Bill or Queritur For if the Sheriff return a Summons as usually he doth in all cases of Debt because of the general Summons of the Sessions upon the Writ first before mentioned by which the Sessions was proclaimed then those Judgements are obtained as is before expressed But if the Sheriff return that the Defendant hath nothing in his Bailiffwick whereby he may be Summoned or Attached as usually he doth in cases of Trespass and upon the Case then a Capias to Arrest the Defendant is awarded and a Writ of Distringas also ad infinitum in cases of Trespass and issues thereupon returned by the Sheriff untill the Defendant do appear Neither is the Defendant in case of these Judgements thus obtained by Default any way prejudiced but by his own Laches or wilfulness For in all cases of Debt if he or his Attorney tender an Appearance any day within the Sessions or after with consent of the Plaintiffs Attorney before the Debt sworn the appearance is accepted And if he neglect so to do so that the Judgement stand yet no Execution can go forth untill the Plaintiff do first swear his Debt and Damages for the forbearance of it either before the Judges in open Court or else by special Commission in which Case also execution of the Writ by the Sheriff though gone forth is stayed in the Attornies hand by Order till commonly six Weeks or two Moneths after the Sessions to the end that the Defendant may satisfie the Debt before the delivery of the Writ to the Sheriff if he please In prosecution of all which kind of Actions in Debt and Trespass which are almost the whole business of the Sessions the parties are not delayed above one or two Sessions unless by some dilatory Pleas and Demurrers which seldom happen and for taking away whereof some provision may be made and the Charges unless in Cases where and issue is pleaded and tryal thereupon had not commonly above thirty shillings except where the Debt being above forty pound is finable to the King in case the Action be brought by Original Neither are the People in prosecuting and defending these Actions inforced to travel out of their own Counties Also in Cases of real Actions which are very few the proceeding is speedy unless it happen by multiplicity of Pleadings occasioned by the intricacy of Titles and variety of Conveyances to be pleaded which for the most part is avoided the Conveyances being given in Evidence Those Courts of the great Sessions have a Chancery within themselves and have had power to relieve in Cases of Equity ever since H. 8 time A Tract or Directory touching the Practick of an Attornies profession in the Court of the great Sessions in Wales IN the first place it concerns an Attorney partly as well as the Lawyer to understand at least the nature if not the whole cause and ground of his Clients Action or Suit before he undertakes to follow it without which he will not be able to do his Client any great benefit more then suing out of Process and going from Office to Office which every ordinary fellow that can but write and read is able to do as well as he Then to ease his Councel Common Actions at the Sessions and not to trouble him to do every ordinary plain thing he is to draw his Titling for to have out his original Writ or Queritur as the case requires and the
relation to his practice yet I durst not presume to proceed to enlarge thereon lest I should be justly rebuked In some Cases there will be no Plea put in or Issue joyned the first Sessions but the Defendant upon some occasions must move for an Imparlance which is called Licentia interloquendi for brevity Li. Lo. being a granting of time to imparle between that and the next Sessions or to plead by the first day of the next Sessions or some day in the Vacation as the Court shall think fit to appoint or both parties agree to be entred tunc pro nunc for there is a general and special Imparlance and sometimes the Plaintiff will have cause to imparle as well as the Defendant when after the Defendant hath answered or pleaded he is not ready to reply for in all or most Actions begun at a Sessions there must be Recovery by Default or after appearance and Declaration either an Issue Imparlance or a Nihil dicit if the Plaintiff do as he may call for proceedings without both parties will be at a stay by consent wherein commonly a Nihil inde is for that time entred on the Writ or Declaration in which Cause the Plaintiff if he please may proceed the next Sessions after as formerly he might And in such Actions wherein Issue the first Sessions is not joyned if the Plaintiff will proceed the next Sessions he must then look the Docket to know how the matter stood the Sessions before and continue the same unto the Book of Imparlance according to the words of the Docket which may also be done the second Sessions but paying the Prothonotory for the continuance If Causes have slept after appearance and before Declaration be put in and the Plaintiff will not appear to proceed the Defendant if he desires to go on must move the Court to appoint the Plaintiff a time to declare or reply c. as the Case requires and in default thereof that a non-Suit may be entred which the Court of course will grant and the same Rule being entred and not performed then the non-Suit will be entred and if it be after the Plaintiff hath declared the Defendant will have his Costs and an Execution for it if it be not in such Actions wherein Costs do not lye for seldome or never any Costs is had by the Defendant if the Plaintiff become non-Suit before he declares for I knew never any had or granted I should towards the end of the foregoing leaf where I mentioned view lay not in a Writ of Entry Sur Disseizin declared that it did lie in the other Writs as of Dower Writ of Right and Formedon wherein after Declaration is put in and a Rule given to the Tenant to Answer the Tenant may demand view of the Lands which must be done in Court or Office before the Rule be quite out which view so demanded is granted which excuseth the Tenant of making any Answer till the Demandant sues out the Writ of View whereunto as well the Tenant must appear as the Demandant declare de novo by a Similis Narratio and the Tenant must be careful to observe his time to demand the view for it is not grantable after a general imparlance and if the Tenant slips the time he shall not come to it again and he must be more careful to appear or essoin for an essoin will lie at the calling of the Writ of View else the Demandant will then recover seizin of the Lands and have a Writ of seizin and if the Defendant essoins he will gain a day longer to appear and then must appear whereupon the Demandant declares by Similis Narratio mutat mutandis as is aforesaid There are at the great Sessions sometimes other Actions as of Replevin Detinue Accompt Rationabili parte bonorum Partition Waste Actions upon Penal Statutes Curia Claudenda de muliere abducta cum bonis viri Audita Querela and others which have but ordinary proceedings as hath been treated in some other Actions before spoken of whereupon I will only speak a word or two of the nature of each of them Replevins most commonly are brought in inferiour Courts and afterwards removed to the Sessions wherein the Plaintiff declares and the Defendant avows as his Case requires and afterwards the Plaintiff is to put in his bar which is called a Replication in another Action And in this Action both Parties are Plaintiffs and may recover for the Defendant if he makes good his Avowry is to recover his Rent or what else he distrained for with his Costs and Damages at the Trial but if the Plaintiff be non-suited the Defendant is to have a Returno habendo to restore the Cattle distrained by him to his custody as they were before replevied whereby to satisfie his demands But then the Plaintiff if he will may have a second Deliverance and go on again to Trial but if the Defendant recovers in this he is to have a Returno habendo unrepleviable but if the Plaintiff recovers he is to have only Damages for the wrongful distraining of his Beasts and in case the Goods cannot be replevied a Withernam may be had to take the Parties own Goods that did distrain in value c. there is also a homine repligiando for releasing a man detained by another person except for some offences which are mentioned in the Writs and there is sometimes a Capias in Withernam that issues out it is too tedious to express all things concerning them and therefore I leave the Reader if he be ignorant to take pains to learn them out of better Authors as I did In detinue the Plaintiff is to recover the things detained and in default thereof the value of the same in money which the Jury usually finds The same Process is in Partition and in Waste and Accompt which is Summons and Distress but in Partition and Waste the Demandant will recover by default upon the third Writ if the Tenant appears not as in some other former Actions treated of appears And in these two Actions of Partition and Waste there lies no Costs but treble Damages and the place Wasted is recovered in a Writ of Waste And in Partition there be two Judgements one after the Verdict which is no more then siat inter eos partitio and the other upon Return of the Writ awarded to the Sheriff to make the Partition which must be upon motion and is quod partitio praedicta firma stabilis teneatur imperpetuum And in a Writ of Waste the Demandant may depending the Action move for a Writ of Estrepement and is ordinarily granted being a Writ to the Sheriff to restrain and prevent the making or committing any further waste upon the Land Whilt the Action is depending Actions upon penal Statutes are usually brought by way of Information wherein a Distringas is the next Process and the Issue Verdict and Judgement therein if found by the Prosecutor are as the several
Determination of the Court which sometimes after Argument is given and entred for Plaintiff or Defendant as is before spoken where a special Verdict is given and therefore I will not enlarge further thereon having stood somewhat longer on manner of arguing and determination of a special Verdict then altogether concerned my purpose being to direct an Attorney how far he was to act in that and in this It is the Councels part to manage all things Again when a Jury after they heard their Evidence and deliberate thereon comes to deliver their Verdict if the Plaintiff when he is then called becomes non-suit it is requisite that the Defendants Attorney have care which I omitted to speak of when I formerly spake of a non-suit where it had been more proper that is to say a special Entry made of that non-suit that it was after Evidence whereby the Record may be as several Presidents are for it drawn up accordingly for there is a very great difference and strong one when occasion is to be urged between a common ordinary Non-suit before Evidence and a Non-suit after full Evidence on both sides given for it is near as good as a Verdict for the Defendant And in so doing the Attorney may perhaps benefit his Client far more then what he had formerly done for him in this Cause if the Plaintiff should afterwards stir therein and bring his Cause about again to another Trial. After Recovery or non-Suit there may be several Writs of Execution had by the party that recovers though but one at a time for to attain the fruits of his Recovery which Writs in Debt and all other personal actions are either a Capias ad satisfaciend a Ficri facias or an Elegit the one being to take the body the other to seize on the party goods and chattels the third to find the moiety of his Lands that he had at the time of the Judgement given and all his Cattel except the Cattel of his Plow If an Elegit be taken out the party can resort to no other Writ â—till the time expires that he must sue forth a Sci. fac for to renew his Judgement if a Capias be taken out he cannot resort to a Sci. fac but after a Fi. fac there may be a Cap. had upon retorn of Nihil habet in Balliva mea c. After an enquiry is made upon an Elegit and Lands found the party that sued it out if he conceives that what is done upon it it may satisfie his Recovery is to retorn it and have it filed in the Prothonotary Office or else keep it with him and accept a time to take out another Elegit or another Writ if it be to be obtained for if he files his Elegit he is thereby concluded and barred from having any further Execution though by that which he filed he could never attain to the third part of his Recovery If a Sheriff upon a Capias retorns Non est inventus the party may have an alias if he please or an Exigent which is to the Sheriff to proclaim the Defendant at the fourth or next County Court and at the fourth County he is to be outlawed by the Coronors Judgement and when the Exigent is retorned then will issue out a Capias ut legatuâ— which is either general or special the general is to take the body only and the special is as well to take the body as to find or to seize on the party his Lands and Goods to the Kings use till the party clears himself of the Outlary But I never understood in all the time of my experience and upon all my enquiry how or in what manner legally a man upon an Outlary had out of the Sessions and Lands found thereon may come to reap the benefit thereof by satisfying his Recovery though it is ordinarily done in England for no Inquisition upon an Outlary was ever retorned to our Welch Exchequer which is an Office belonging to the Sessions for making of Original Writs there and how it may be transmitted or Cognizance taken of them at the Exchequer above forth I leave them to signifie that have reason to be more knowing then my self therein for there was no such proceedings in all my time and never before for ought I heard There are also in Actions of Dower and on other real Actions a Habere facias seisinam as an Execution to be taken out to obtain possession of the Lands recovered and in it sometimes a Writ to enquire of Damage as in Dower which is recovered by default or where it appeared not what the Damages were and a Capias or Fieri fac for the Costs wherein Costs lyes which Writ when executed is to be retorned and filed and in Ejectione firmae an Habere facias possessionem is the Execution for to put into possession with a Cap. or Fieri fac as is aforesaid included or by it self for the Costs and Damages which likewise are to be retorned and filed after they are executed If Execution be not taken out till a year be expired since the last Execution upon any Judgement was sued forth then the Plaintiff should have no Execution though Prothonotories use to do it by continuing the Cause before he takes out a Scire fac to the Sheriff to sum non the party Defendant to shew cause wherefore the Plaintiff should not have Execution and if the Sheriff retorns thereupon a Scire feci as there is a Rule given by the Court to shew cause c. but in some Courts there be two or in some three Rules to appear and the like to plead which in Summe seems to be too favourable to the Defendant and in great delay to the Plaintiff which may tend to his prejudice but in default of appearing and pleading something to it Judgement is entred which is Quod fiat Executio and then Execution awarded the Defendant may plead thereunto what the Law admits and as his Case stands Nul tiel record and several other things But some hold that that Plea holds not in the same Court where the Judgement was obtained others I found of opinion it would but when it is admitted as soon as the Record of the Judgement is produced and read there is an end of it and Execution is presently awarded if the Sheriff retorn upon the Fieri facias Nihil habet per quod c. the party Plaintiff must take out another Scire fac and if the Sheriff retorns the same Retorn on that then those two Nichils amount to a Scire feci and the party shall have Execution as if a Scire feci had been at first retorned in case the Defendant appears not or afterwards plead not There be several Causes wherein a Scire fac is requisite after Judgement before Execution be made or taken out as if the Plaintiff or Defendant died after Judgement there must be a Scire fac for the Plaintiffs Executor or Administrator of the Defendant if the
prejudiced because all Clerks of an Office or Under-Sheriff are not so perfect and knowing but some may commit a fault now and then and those that are knowing may be subject by reason of negligence or over-hastiness to write false And if any Attorney if he suspect any such thing cannot apprehend it his Clyents as aforesaid may suffer by it if the Attorney of the other side be more knowing and apprehensive And if any Attorney knows not perfectly all Fees he cannot choose but in making of Bills of Costs for his Clyent after Sessions or when he takes out Execution for them prejudice and wrong himself or his Clyent Neither is it handsome for an Attorney when he is paying some Fees to an Officer to be enquiring of him or of another what the Fees are lest he gives occasion to some standers by to suspect his ignorance in other things as well as in those Fees All which ordinary Writs and their Retorns I would have done here but far better then I could do are to be had and read in several printed Books wherein if Attorneys please they may be fully instructed and their Fees they may soon attain to know in a short time if they be but diligent in observing and willingly learning and also carefull to remember what they observe and learn that I need not here give any Catalogue of them for an Attorney though he were bred up an Apprentice his time under an able Attorney which I conceive is a very good way to bring him up and make him able and if he had never so good instruction from him in writing and by long experience will never for all this I think prove throughly perfect and able in his profession no more then I also think any of another profession will do without he be as earnest and desirous to learn and know the same as much or more for the delight and pleasure he shall take and receive in the knowledge thereof as in the profits and gain he expects to attain by it but the over-hastiness and forwardness to come too soon by that gain hath made many one a bungler not only in that but in several other professions which Error were well to be by others hereafter shunned and avoided Ad magnam Sessionem Domini Regis Com. Caernarvon tent apud Conwey in Com. predict coram Petro Mutton Ar. Justiciar Domini Regis magn Sessionis suae Com. pred Edvardo Littleton Ar. uno alter Justiciar c. die Lunae viz. decimo quinto die Septemb. Anno Regni Dom. Caroli Dei gratia Angliae Scotiae Franciae Hiberniae Regis fidei Defensor c. quarto Certain Rules agreed upon at the said Sessions for the setling of business in the Court of the said Sessions within the three Shires of North-Wales 1. Imprimis Every Essoin to be east upon the calling of the Writ or else not to be allowed 2. Item An Essoin is to be allowed upon the Iterum Summoneas second or third Bill Distringas c. if there be no Essoin cast before upon the Original and that before Issue but after Issue one Essoin upon the Venire fac only 3. Item No Essoin to be allowed upon a Scire fac brought upon a former Judgement 4. Item After Appearance and Declaration three Rules in every real Action and two in every personal mixt or popular and the last peremptory after a Plea one Rule for Replication Rejoynder Surrejoynder Rebutter Surrebutter 5. Item The Petit visum or auditum in real Actions to be demanded between the second and third Rule and the Petit auditum in personal Actions between the first and second Rule 6. Item An Essoin to cast one day only viz. the next day after Essoin cast as if a Writ be essoined upon a Munday to put off Tuesday so that no Writ can be called untill Wednesday morning and the party to wave or warrant the Essoin the day essoined sitting the Court. 7. Item If there be no appearance upon the day of the Retorn nor upon the calling of any Writ sitting the Court or upon that day the appearance not to be allowed but upon the next Writ or Process 8. Item Upon a similis Narratio upon a Writ of View Sum. ad Warran ad auxiliand and upon a Challenge one Rule only and that peremptory 9. Item After Imparlance one Rule 10. Item Upon every Sc. fac upon an old Judgement in personal Actions two Rules to appear and after appearance two Rules to plead and that peremptory but upon real Actions three Rules to appear and three to plead but upon a Judgement of ten years past no Sc. fac is to be granted without motion in Court unless it be continued by Process 11. Item No Judgement to be given upon a Bond for performance of Covenants Award or Agreements upon default without motion in Court 12. Item An Executor or Administrator to make Oath that he received no part of the Debt nor any other for him since the death of the Testator nor the Testator himself to his knowledge 13. Item No Judgement entred by default or taken of the same Sessions unless the Defendant plead in Bar the same Sessions 14. Item Upon the general Issue tendred the Similiter to be entred for the Defendant without Rule but upon any special pleading or a Similiter for the Plaintiff one Rule to be given 15. Item Upon a Demurrer tendred one Rule to joyn and upon refusal Judgement to be given 16. Item If a Plaint be removed by Recordare Pone Certiorari or otherwise from an inferior Court to the great Sessions the Defendant appearing by Attorney and giving Rule and the Plaintiff thereupon non-suited the Defendant ought not to have Costs the Amerciaments of 3 d. or that Amerciament to be increased The certain and known Rules to be observed in the proceedings of the Chancery Court of the great Sessions of the Counties of Anglesey Caernarvon and Merioneth 1. IMprimis If any Party served with a Subpoena to answer doth not appear and enter his appearance with the Register before the sitting of the fourth Court next after the said service the Plaintiffs Attornies may sitting or after the fourth Court upon filing the Bill and the Oath of the Service of Course without motion cause the Register to enter and pass an Attachment And the legality of it and the validity of the Oath to be disputed upon the Defendants appearance and no Subpoena shall issue into a foreign County without order of Court and by the entry of appearance it is to be expressed whether the Defendant appear in person or by Attorney and for how many Defendants the appearance is given 2. If no Answer Plea or Demurrer be put in before the sitting of the fourth Court next after the entry of appearance the Register ex officio to enter and grant an Attachment and upon the due return of any Attachment to enter and issue forth an alias Attachment and upon
the return thereof if cause require to enter and issue forth Proclamation of Rebellion but no sequestration without motion in Court and every of these Processes to bear teste from day to day and all contempts are to be cleared or paid for before answer be received and all Bills and Answers to be subscribed by Councel 3. If no Bill be filed against the Party served within three Courts after the entry of his appearance he shall upon the producing of the Subpoena or Ticket wherewith he was served and filing of it with his Affidavit of his service be of course dismissed with vj. s. viij d. costs and if after answer no exceptions or reply be filed and entred or other proceedings given within four Courts the Defendant is of course to be dismissed with 13. s. 4. d. costs having first by himself or his Attorney moved the Plaintiffs Attorney to give proceedings 4. After replication entred and received and issue joyned and at any time before publication either Party is at liberty to examine witnesses before the Register giving notice of the witnesses names in writing to the Attorney of the adverse party and for want of notice the examinations to be suppressed and the first interrogatories to be ministred to all the witnesses without any alteration without special order of Court 5. That in all causes wherein witnesses have been examined in the Registers office or by Commission returned and certified publication shall without motion pass if cause be not shewed by the Plaintiff or Defendant before the rising of the second Court on Wednesday in the Sessions week in the County wherein such causes arise and both parties if present or such of them as appear there in person or by Attornies that present Sessions at their peril without service of any Process in that behalf otherwise if absent and not appearing as aforesaid to be served with a Process to hear Judgement therein at such time and place as the Justices of the same great Sessions shall appoint 6. If a Bill of Costs awarded upon any hearing or otherwise be in difference between the Attornies the Register is indifferently to tax and allow the same and the order to pass according to his approbation therein without motion 7. That no motion in any cause after appearance entred be made by Councel or Attorney without notice first given of the purpose and intention thereof to the Councel or Attorney for the Party against whom such motion is to be made and that if any such motion shall be made before notice the same shall be of no effect and at every motion the last Rule in that cause to be produced 8. Where any Person shall be brought in by Process or shall appear gratis to be examined upon a Contempt he shall give notice of such his appearance to the Attorney of the other side and if within three Courts after such appearance or notice given Interrogatories shall not be exhibited to examine him or if being examined no reference shall be procured of his Examination then the Party so examined shall be discharged of the Contempts without further motion and attend the Register for taxing of Costs which the Register is to tax without further order Montgomery and Denbigh A Note of the Fees belonging to the Prâ—â—â— thonotary of North-Wales in Causes real and mixed FOr every mean Process before Appearance ij s. For every Warrant of Attorney and Essoin severally iv d. For every Declaration Plea Reply Rejoynder Surr. Demur and joyning in Demur ij s. For every Issue joyned of either Party ij s. For every Pet. visum ij s. For every Imparlance ij s. For every Writ of Grand Cape ij s. Petty Cape ij s. View ij s. Sum. ad aux ij s. Sum. ad Warr. ij s. and other Judicial Writs ij s. For every Continuance ij s. viij d. For every Challenge to the Sheriff ij s. the like to either Coroner ij s. to all three in all vj s. For Challenge unto the Array ij s. For Affirmation or Quasat thereupon ij s. For every Ven. fac ij s. q. For every Hab. Corp. Distring c. ij s. viij d. For every Tales de Circumst ij s. For calling the Jury j s. For every Adjournment of Jury Remanet or Juror withdrawn by Assent of Parties ij s. For Verdict and Judgement iv s. For every privy Verdict v s. For Reading the Record ij s. For Reading the Evidence ij s. For every Non-suit iv s. For every Capt. by default ij s. For every Writ of Seisin ij s. For Slander the Fees for the most part concur with the precedent Fees as experience will inform Fees in Personal Actions above 40 s. Debt or Damages FOr the first Bill or Pone x d. For every second third Sum. or Distr vj d. For every Warr. of Att. and Essoin severally iv d. For every Adjourn ij d. For every Decl. viij d. For every Pet. Audit viij d. For every Li. lo. xij d. For every Bar and other Pleas xij d. For every long Plea entring Indent and Awards in heo Verba for every sheet viij d. For every ordinary Issue of either Party xij d. For every Non est factum xij d. Similiter inde iij s. For every Demurrer xij d. For Issue thereunto xij d. For every Continuance j s. iv d. For every Ve. fa. j s. ij d. For every Challenge Plea Quasat or Affirmat as before per piece ij s. For every Hab. Corp. j s. viij d. Voc. Jur. j s. Tales ij s. For every Adjournment of Jury Remanet or Juror withdrawn ij s. For Reading Record j s. For Verdict and Judgement ij s. For Non-suit ij s. For Capt. by default j s. For Ca. Sa. or Fi. fa. vj d. Personal Actions under 40 s. FOr every Summons Pone and Writs thereupon issuing iv d. Warrant Attorney iv d. Declaration iv d. Euery Issue iv d. Continuance viij d. Judgement viij d. After Issue joyned the Fees are taken as in the former Action above 40 s. For Awarding upon Record and making of every Writ of Retorn Habend ij s. Second Deliver ij s. Ca. in Wither ij s. Priviledge ij s. Procedendo ij s. Certiorari ij s. Elegit ij s. Scire fac ij s. Inquir de dam. ij s. Ha. Cor. cum Causa ij s. Duces tecum ij s. Distr Ballium ij s. Distr nuper vic ij s. Sum. severans ij s. Restitution ij s. Diminution ij s. Extent ij s. Mittimus ij s. Cap. ad Respondendum j s. Exigent j s. Cap. ult j. s For Recording the Appearance of every Person Arrested ij s. iv d. For every special Bail ij s. iv d. For Entring upon Record an Infants Admission to his Gardian or Procheyne Amy by the Court ij s. iv d. For a Deed Inrolled for every side of a Roll v s. For entring every Attornies name in the Roll when he is Sworn iij s. iv d. The Fees of Common Recovery with a single Voucher NArr vers tenant
Roll. 1 s. 48. For every such Entry in Plea of Land Ejectione firme Trespass on the base Appeals and such like for every such Entry as aforesaid ij s. 49. For entring every Imparlance in Debt i s. 50. For entring every Imparlance in plea of Land Ejectione firme Trespass on the Case Appeal and such like ij s. 51. For drawing and entring every special Order i s. 52. For entring every Fine with Proclamations and for entring Kings Silver vi s. 53. For the Chirograph of every Fine ij s. 54. For entring and enrolling in parchment of every Recovery by consent of parties for every Declaration Plea and Judgement 2 s. and such other Fees as in real Actions is set down and rated before ij s. 55. For Exemplyfying of Fines with Proclamations vi s. 56. For Exemplifying of every Recovery or other Record whatsoever according to the length thereof viz. after the rate of 1 s. a sheet as aforesaid i s. 57. For certifying of every Record upon a Writ of Error or otherwise for entring of every such Record certified into the Prothonotaries Office for every such 1 s. 2 sheet 58. For the reversal of every Indictment and Judgement ij s. 59. For every Copy of Writ Declaration or other Record for every such sheet viij d. 60. For the Prothonotaries hand to every such Copy or any other in paper if the said hand be desired ij s. 61. For every Recognizance Plege of Fine Plege of Traverse Plege tam de respond quam de satis faciendo for every such ij s. 62. For recording every appearance of such as are bound to answer ij s. 63. For every prisoner discharged upon Proclamation i s. 64. For every such acquitted by Jury ij s. 65. And for his Plea of not Guilty ij s. 66. For every Warrant of the Peace Warrant of the good Behaviour or Subpaena ad testificand for every such ij s. 67. For the Prothonotaries Clerk for the writing of every Venfac 4 d. 68. For their other Jury Writ and Writ of Execution vi d. Ra. Eure. H. Towneshend R. Lewkner We whose Names are subscribed have seen these Fees before recited for many years received and taken by James Garnons Esq late Deputy Prothonotary of the Counties aforesaid as Fees belonging unto the said Office Richard Mitton Robert Lloyd Evan Lloyd Aug. 13. 1660. This last Copy of Fees I have written with my own hand out of the Original under the aforementioned Judges hands viz. Sir Ralph Eurâ— Sir Richard Lewkner and Sir Henry Towneshend attested by the persors above-mentioned under their hands also viz. Richard Mitton then Secondary Robert Lloyd and Evan Lloyd then Attorneys there Rice Vaughanâ— Statuta Walliae EDwardus Dei gratia Rex Angliae Dominus Hiberniae Dux Aquitaniae omnibus fidelibus suis de terra sua de Snodon de aliis terris suis in Wall Sal. in Domino Divina providentia quae in sua dispositione non fallitur inter alia suae dispensation is munera quibus nos regnum nostrum Angliae decorari dignata est terram Walliae cum incolis suis prius nobis jure feodali subjectam tam sui gratia in proprietatis nostrae dominium obstaculis quibuscunque cessantibus totaliter cum integritate convertit coronae regni praedicti tanquam partem corporis ejusdem annexuit univit Nos itaque intuitu divino volentes praedictam terram nostram Snodon alias terras nostras in partibus illis sicut caeteras ditioni nostrae subjectas ad honorem laudem Dei Ecclesiae sanctae ac zelum justitiae sub debito regimine gubernari incolas seu habitatores terrarum illarum qui altae bassae se submiserunt voluntati nostrae quos sic ad nostram recepimus voluntatem certis legibus consuetudinibus sub tranquillitate pace nostra tractari leges consuetudines partium illarum hactenus usitatas coram nobis Proceribus regni nostri fecimus recitari Quibus diligenter auditis plenius intellectis quasdam illarum de consilio Procerum praedictorum delevimus quasdam permisimus quasdam correximus etiam quasdam alias adjiciendas faciendas decrevimus eas de caetero in terris nostris in partibus illis perpetua firmitate teneri observaâ—i volumus in forma subscripta ¶ Providimus decernendo statuimus quod Justitiarius Snoudon habeat custodiam gubernationem pacis nostrae regiae in Snoudon terris nostris Wall adjacentibus justitiam exhibeat quibuscunque juxta brevia regia originalia leges etiam consuetudines infrascriptas Volumus statuimus quod Vice-Comites Coronatores Ballivi commotorum sint in Snoudon terris nostris partium earundem Vicecomes de Angliseia sub quo terra nostra tota Anglisei cum cantredis medis bundis suis Vicecomes de Kaernarvam sub quo cantreda de Arvan cantreda de Artlentoyth commotum de Crukvn cantreda de Thlen commotum de Invenyth Vicecomes de Meronyth sub quo cantreda de Meronyth commotum de Ardudo commotum de Pentlyn commotum de Irmony cum metis bundis suis Vicecomes de Flint sub quo cantreda de Englesende terra de Meillor Seisnek terra de Hope tota terra conjuncta castro nostro ville de Ruthlan usque ad villam Cestriae de caetero intendant Justitiarij nostri Cestriae de exitibus eorundem comitatuum respondeant ad Scaccarium nostrum Cestriae ¶ Coronatores sint in eisdem commotis per breve regium elegendi cujus tenor invenietur inter brevia originalia Cancellariae Sint etiam Ballivi commotorum qui fideliter officia sua faciant exequentur eis diligenter intendant secundum quod per Justic Vicecom eis injungatur Vicecomes de Kermerthen cum cantredis commotis metis ac bundis suis antiquis Vicecomes de Kardygan Lampader cum cantredis commotis metis ac bundis suis Coronatores sint in eisdem commotis ballivi commotorum ut prius De Officin Vicecomitis in Wallia modo Com. tenendorum Vicecomes officium suum exercere debet sub hac forma scilicet cum quis sibi conquestus fuerit de quacunque transgres sibi facta contra pacem Domini Regis sive de captione Injusta detentione averiorum sive de namio vetito aut de debito aut de alio contractu non observato de consimilibus per breve vel sine brevi Primo capiat pleg de prof clam suo vel per fidem si fuerit pauper postea faciat executionem prout plenius declaratur hoc modo Defendentes in quolibet casu summoneantur quod sint ad proximum com respons conquerentibus Ad quem com facta summonitione testisicata si non venerint per considerationem com iterum sum quod sint ad alium prox com respons ut prius Ad quem com