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
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