Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	bring_v	execution_n	writ_n	2,149	5	9.7142	5	true

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A06786	Consuetudo, vel lex mercatoria, or The ancient law-merchant Diuided into three parts: according to the essentiall parts of trafficke. Necessarie for all statesmen, iudges, magistrates, temporall and ciuile lawyers, mint-men, merchants, marriners, and all others negotiating in all places of the world. By Gerard Malynes merchant.	Malynes, Gerard, fl. 1586-1641.	1622 (1622)	STC 17222; ESTC S114044	480,269	516

shillings or seuentie two pence and 72 ½ pence for the said French Crowne in Exchange when the Crowne in specie is paied him in France for seuentie fiue soulz The like consideration are we to haue of the Dollers of Germanie of the Polish Guilders or Florins and all other coynes inhaunced aboue the Par of Exchanges heretofore calculated amongst Merchants and especially with the admittance of Princes The operation heereof in the course of trafficke is of verie great moment more than in times past when the difference was not so sensible which made me to compare the same vnto the serpent Aspis which stingeth men in such sort that they fall into a pleasant sleepe vntill they die which is meant by particular persons whose estate is consumed by running vpon Exchanges Or like vnto the crueltie of the Planet Saturne which maketh his spherecall course in thirtie yeares with great operation although wee doe not so sensibly perceiue his motion which is meant in the reuolution of State affaires in progresse and continuance of time CHAP. XI Of Attachments and Arrest THE Common Law of England doth not vse the course of Attachments as is vsed by the Custome of the Citie of London which was borrowed from Merchants actions obserued in forraine Countreys and was thereupon by Custome here established it being a readie way whereby men may secure themselues of present meanes if they doubt of their debtor For if the creditor do know any debts or goods belonging vnto his debtor he may instantly vpon a specialtie to be exhibited vnto the Magistrate haue authoritie to attach the said debts and goods in the hands of any person where he findeth the same onely Priuiledged places excepted or Ecclesiasticall persons in most places To this Attachment if the partie doe appeare and put in baile either by himselfe or his Atturney then the Attachment is ipso facto void and declaration being put in dependeth in Court vpon the said baile and if no declaration bee put in the next Court day or within three dayes then the said baile is likewise discharged by the said Custome albeit this is not so duely obserued as the Customarie Law of Merchants requireth But if the partie doe not appeare and the Attachment doe proceed three Court dayes or three defaults to be entred then for the fourth default judgement or sentence is giuen that hee who did make the Attachment shall recouer the said debt and goods and take the same into his owne possession vpon good sureties to be put into the Court to answere the value thereof within one yeare and a day in which time the proprietarie may disreason the said recouerie by disprouing the other parties surmises or allegations prouing that the specialtie was paied whereupon the Attachment was grounded For the Attachments beyond the Seas cannot be made vpon any pretended Action but must bee done vpon a Bill of debt and many times the Magistrates will sequester the goods or debts into their owne hands to auoid incertainties of honest dealings Besides Merchants will be aduised before they make Attachments because both the Ciuile Law and Customes of Merchants doe impose great damages vpon the partie if hee haue made his Attachment without iust cause to the ouerthrow of the other parties credit And moreouer if it be vpon debts appearing by specialties or Bills Obligatorie it may fall out that the said debts are transferred or set ouer vnto other Merchants according to the Custome heretofore mentioned whereby the propertie is altered I remember a case of mine owne that happened aboue twentie yeares since which concurreth with the matter in hand A Merchant being indebted vnto me by a Bill Obligatorie the summe of 800 ll payable at six moneths was perswaded by a friend of his with whom I had some differences and controuersies of accounts to suffer an Attachment to be made in his hands of the said moneys by the Custome of London vpon promise made vnto him That he would giue him long dayes of payment for the said moneys whereupon my Debtor appeareth to the said Attachment and did acknowledge the said debt of 800 ll relying vpon the long dayes of paiment and he that made the Attachment did proceed in the Law and had judgement thereupon making no doubt to obtaine execution accordingly Being aduised by learned councell in London Attachments to be remoued after judgements wee suffered him so farre to proceed and then we did speake in Arrest of execution and brought a Writ of Certiorare out of the Kings Bench vnder the hand of the Lord Chiefe Iustice putting in speciall baile in London to satisfie the judgement The record was remoued to the said Court of Kings Bench and there wee did put in other baile and vpon that brought a Supersedias into London and discharged our especiall baile and by the Law the said Attachment and all proceedings were made void and this Merchant was taken Pro confesso and ordered to bring the money instantly into the Court whereas he had yet six moneths for the payment the interest whereof was 40 ll whereby the Prouerbe tooke place Fallere fallentem non est fraus Here the Law did preuaile against Custome but in another like matter of attachment Custome hath preuailed against the Law One being indebted vnto another the summe of one hundreth pounds payable at a certaine time it came to passe that the Creditor went ouer beyond the Seas before the money was due the cautelous Debtor vpon vntrue surmise to defraud the Creditor made attachment of this money in his owne hands by the Custome of London and put in sureties to bee answerable for it for one yeare and a day according to the manner and order of the Court in which time the said Creditor was to disreason the said pretended debt but the Creditor being beyond the Seas and ignorant of these proceedings came ouer after the expiration of the yeare and a day and the Debtor had judgement vpon the said attachment and execution awarded vnto him in his owne hands The Creditor being now come ouer demanded his money the other denied to owe him any in briefe the Bill was put in suit at the Common Law the Debtor did plead the said judgement and recouerie in London and by that practise and fraudulent meanes defeated his Creditor and being done by Law it is taken to be no cousenage to be punished by the Starre-chamber or other Courts onely the partie is A.K. Touching Citizens or Merchants arrests beyond the Seas there is a Custome that no Officer may arrest after Sun set No arrest to be alter Sun set such therefore as goe abroad but at those times are said to Fly with the Owle by a common Prouerbe and it is hoped by the said Custome that the Debtor may by hauing accesse at some time vnto his Creditor compound with him and preserue the good opinion and credit wherein hee liueth and thereby not onely haue meanes to recouer himselfe but also be

circumstantibus and empannell them that is To take other persons of the standers by which is done before the Iudge at the time of the Triall When the Iurie haue deliuered vp their verdict Verdict Iudgement and Execution if nothing bee alleaged in respite of judgement then judgement is had of course and alsoe execution is awarded to bee executed as the finall end of Law Neuerthelesse there are three meanes to dissolue the said judgement and execution namely By a Writ of Attaint a Writ of Error and an Audita Quaerela which Writ is grounded vpon Equitie by Law and Conscience The Writ of Attaint is not onely tedious and thargeable Writ of Attaint but also neuer or seldome tried for the same is brought by the partie grieued against the twelue men and the partie for whom the sentence is giuen And whereas before commonly vpon the first enquest they be all Yeomen or men of meane calling now vpon this Attaint must goe twentie foure Gentlemen of greater qualitie and fortie eight must be warned to appeare then there must in the Attaint no more euidence be brought in but onely that which was brought in and alleaged before the first enquest which not appearing of record is hard to bee made a plaine matter againe Gentlemen and others are loth to discredit their neighbours yet if the matter bee so apparant that they must needs find them attainted then meanes are found to deferre the judgement and it may bee the parties shall be brought to an agreement or at the least one of them that was of the attainted Iurors will dye in the meane time and then the Attaint ceaseth yet in this case if the partie be in prison which brought the Writ of Attaint he may be bailed as is in Natura Breuium The Writ of Error is more easie Writ of Error and was heretofore vsuall to prolong suits in Law before the Statute of Ieofaile was made meaning in good French I'ay failly For euerie small Error if it were but false Latine would ouerthrow a Cause but now it runneth into another extreame for if the partie grieued speaketh in arrest of judgement and sheweth some materiall Error vpon motion made the aduerse partie may haue it amended as often as Errors are opened the Record therefore ought to be first remoued and not onely by transcript be put into another Court but the partie is to plead thereunto in nullo est erratum and then the danger of opening Errors is past if there be no trickes vsed in amending of the Records vnder hand wherein lyeth a Cerciorare to satisfie the Court where the Record is brought namely from the Common Pleas to the Kings Bench Court from the Kings Bench to the Exchequer which heretofore was done in Parlement and therefore the partie grieued and in prison of the Kings Bench cannot be baileable vpon a Writ of Error after judgement and execution as hee is vpon a judgement of the Common Pleas in the Court of Kings Bench for this Court of Kings Bench in regard of the Pleas of the Crowne challengeth some prioritie herein The Writ of Audita Quaerela The Writ of Audita Quaerela is graunted out of the Kings Bench Court if the judgement doe depend there and returnable in the said Court or else out of the Chauncerie returnable in the Kings Bench whereupon the Lord Chancellor taketh foure bailes in the vacation Time before a Master of the Chauncerie and the matter doth meerely depend vpon the baile The suggestion of the Writ in matter of Law is a later contract after judgement and execution an escape in Law if the prisoner bee by the Gaoler permitted to goe abroad without the Kings Writ or if he breake prison in which case the Gaoler is to pay the debt or vpon a payment made since the execution also a wrong recouerie by an executor whom the Prerogatiue Court doth afterwards disavow Such and the like suggestions are to be tried by another Iurie vpon euidence to be produced to proue the said allegation A strict Law This Common Law is so strict that the Prouerbe is Summum ius summa iniuria for example If a man seized of lands in Fee hath issue two sonnes the eldest sonne goeth beyond the Seas and because a common voyce is that hee is dead the yonger brother is taken for heite the father dyed the yonger brother entred as heire and alienateth the land with a warrantie and died without any heire of his bodie and after the elder brother commeth againe and claimeth the land as heire to his father in this case by the Law the eldest brother shall be barred by the warrantie of the yonger brother Againe parteners cannot sue each other by the Law Parteners cannot sue each other by the Law if two men haue a wood ioyntly and the one selleth the wood and keepeth all the money wholly to himselfe in this case his fellow shall haue no remedie against him by the Common Law for as they when they tooke the wood ioyntly put each other in trust and were contented to occupie and deale together so the Law suffereth them to order the profits thereof The Law therefore is not compleat without the Courts of Chancerie or Equitie for the imperfection and rigour of it are qualified thereby called to be Aequum Bonum which may bee considered in this case Two strangers ioyntly did deliuer in trust vnto a widow woman a round summe of money with condition not to deliuer the same out of her hands but when they both should demand the same within a while after one of them commeth vnto her and doth assure her by good indices and probabilities that the other his companion is dead and thereupon doth intreat her to deliuer him the money which shee did not suspecting any fraud so the partie went away with the money Afterwards commeth the other who was said to be dead and demandeth the money of the woman and vnderstanding that she had paied the same vnto the other was much offended therewith and caused her to be adiourned before the Iudge The woman appearing did declare the matter according to the truth shewing how the other had deceiued her and she did wholly relie vpon the integritie and justice of the Iudge Example of Law and Equitie Here an Action of the case might haue beene brought against the woman by the law and cause her to seeke the partie that had deceiued her but the Iudge tempering the rigour of the law did giue sentence That the woman should pay the money vnto the partie so as he brought his companion with him to demaund the same according to the couenant they both iointly hauing reposed a trust in her Here I call to mind the question which no Iudge could determine A couetous Doctor at the Ciuile law would not instruct a young Student vnlesse he did pay him a great summe of money whereunto the Student did condescend conditionally that he should

haue the first cause he tooke in hand to go on his side whereupon it fell out that the cause betweene him and the said Doctor was the first cause and so there could be no proceeding therein the Student pleading the condition in barre The court of Chauncerie is properly called a court of Conscience because it reasoneth on the part of the complainant by argument taken from the Law of Nature before mentioned Quod tibi fieri non vis alteri ne feceris for in the Chancerie euerie man is able by light of nature to foresee the end of his cause and to giue himselfe a reason thereof and is therefore termed a Cause whereas at the common-law the clyents matter is termed a Case Difference betweene Cause and Case according to the word Casus which is accedentall for the partie doth hardly know a reason why it is by law adiudged with or against him The Chauncerie therefore vpon Bill and Answere betweene the complainant and defendaunt graunteth an Iniunction to stay the proceeding in the courts of common-law vntill the equitie of the cause be examined and if there be no matter of equitie found Iniunction of the Chancerie then the cause is dismissed to the law againe with costs to the partie Merchants causes are properly to be determined by the Chauncerie and ought to be done with great expedition but it falleth out otherwise because they are by commissions commonly referred to Merchants to make report of the state thereof vnto the Lord Chauncellor ●or the customes of Merchants are preserued chiefely by the said court and aboue all things Merchants affaires in controuersie ought with all breuitie to bee determined to auoid interruption of trafficke which is the cause Staple Lawes 27. E. 3. that the Maior of the Staple is authorised by seuerall Acts of Parleament to end the same and detaine the same before him without any dismission at the common-law which sheweth the necessarinesse of the Office of Prior and Consulls before mentioned The rather for that the triall of an Action of Account at the common-law is tedious There are fiue manner of persons accountable by the law namely a Steward or Bailife a Factor or Seruant or a Receiuer Vpon an Action of Accompt the generall issue to be pleaded thereunto is Ne vncques Receiuer pour account rendre The triall of an Action of Account by law this is first tried by a Iurie and if the partie be conuicted and found accountable then the law doth appoint Auditors to take the account by a commission directed out of the court to Merchants and others according to the nature of the cause whereunto two Atturneys of the court are ioined And when they haue taken the account and find wherein the differences do consist then they are to certifie all their proceedings into the court and the accountant must make issuable answeres to be pleaded whereupon eight ten twelue or more issues shall bee made and then a second Iurie is called to trie all these seuerall issues vpon peremptorie points and so vpon euerie issue there is giuen a particular verdict and sometimes an especiall verdict which is to be determined by the court againe All these long proceedings make long records subiect to many errors and because all these seuerall issues are tried by one Iurie and vpon one record together with the former proceedings whereby the other Iurie found the partie accountable if in any or in the whole materiall error be found then all is ouerthrowne and the parties are to begin againe de nouo And it may fall out that then they will ioine other issues and so run into a Labirinth so that matters of account are properly to be determined of the Chauncerie and it were to be wished that therein more expedition were vsed according to the lawes of Arragon which concur with the course of the said court as we are now to declare leauing all other cases triable by the common-law according to their proper natures as the triall of an Action Reall which is done with solemnitie and the like to abreuiate things Of the Lawes of the Kingdome of Arragon THe Lawes of Arragon being peculiar to that kingdome haue especiall daies or times limited to euerie particular proceedings of the processe whereby the same is diuided into tenne as it were termes which haue euerie one their proper obseruations which the complainant must obserue and prosecute accordingly with expedition as followeth 1 When the partie complainant calleth the defendant 2 When they do appeare before the Iudge 3 The defendant may alledge certaine exceptions 4 Due answere is made to the complainants bill 5 The examinations of the parties and their proceedings 6 Witnesses are produced examined and publication had of their depositions 7 The parties doe reason of the depositions and the matter is brought to hearing 8 When the Iudge giueth sentence or iudgement 9 When execution is had vpon the sentence or the partie appealeth 10 When the cause departeth out of that Iudges power before a higher authoritie And all this is commonly done in foure moneths Obseruations of the proceedings of the law of Arragon with the obseruations by the law required namely the considerations incident which are worthie to be noted to preuent vniust dealings 1 Touching the first time the Iudge taketh not any notice therof for the proces is granted of course vnles it appeare that the complainant hath beene the slaue of the defendant or the sonne doe commence a suit against the father or the seruant against his master wherin vpon good consideration licence must be had of the Iudge 2 The second That they must appeare before the Iudge at three seuerall times of tenne daies or thirtie daies at any one time which is peremptorie after which there lyeth a contempt against the partie not appearing during which time the Iudge doth proceed according to the nature of the action and the Maximes of the Law which are compiled together to iudge by and serue him for his direction but in extraordinarie causes his conscience leadeth him 3 The third time touching exceptions is not only betweene partie and partie but also against the Iudge for insufficiencie of authoritie giuen him if the cause so require 4 The fourth time three things are to be obserued vpon the defendants answere 1 Whether he denyed all or did confesse part or all 2 Whether it be requisit that the Iudge iudicially heare the cause or else according to the defendants answer and confession iudge him to pay or satisfie the matter within nine daies 3 That after the contestation of the suit there be no matter of any dilatorie exceptions alledged to hinder the proceedings but rather peremptorie exceptions to bring the matter to a definatiue sentence 5 The fifth time foure things are to be obserued namely 1 The complainant must sweare that he is perswaded that he demandeth a iust and right demand and the defendant likewise that he defendeth his right 2 That