and governed himselfe Notwithstanding the said A. B. not ignorant of the premisses out of his meer and wicked malice preconceived indeavouring the name and same of the same W. B. to hurt detract make worse darken and utterly to destroy and also into perturbation vexation and insamy to lead and induce certain salse and scandalous words and lies of the same W. B. the 8. day of April in the yeare of our Lord 1656. at c. and within the liberty and jurisdiction of this Court in the presence and hearing of many faithfull subjects of the said Commonwealth said repeated and spread abroad in these English words following to wit W. B. meaning the same W. B. hath stoln my horse out of my Close which I will prove By pretext of speaking and spreading abroad of which said salse scandalous words the same W. B. not only in his good name and same is hurt but also in performance of his businesse with honest persons with whom the said W. B. in buying selling and lawfull bargaining is much hindred and damnified and also some subjects and people of this Common-wealth for that occasion will draw themselves from the company of the same W. B. and to converse with him or any wayes to intermeddle refused and yet do refuse whereupon c. damages to 39 l. And thereof he bringeth suit c. And the said A. B. by S. D. his Attorney cometh c. And saith that the said W. B. his action aforesaid against him ought not to have because he saith that he is not guilty of the speaking and spreading abroad of the words in the Declaration aforesaid specified nor of any part of them in manner and form as the said W. B. above against him complaineth And this c. Therefore according to the custom it is commanded to the Bailiff of the Weapentake of Ouze and Dar that c. that he cause to come before the Steward of the same Court at the next Court of the County aforesaid such a day 12. c. And that he then have there the same Precept together with the pannel of the names of the Jurors aforesaid the same day c. At which County Court held at the Castle of Y. aforesaid according to the custom before the Steward there upon Monday the 2. day of April came as well the same W. B. by his Attorney aforesaid as the same A. B. by his Attorney aforesaid c. and the same Bailiff of the Weapentake aforesaid returned the precept to him directed in all things served together with a Pannel of the names of the Jurors Annexed to the precept to wit in the same pannel are named L. M. N. R. c. to make a Jury between the parties aforesaid in the plea aforesaid who to speak the truth of the premisses being elected tried sworn say upon their oath that the said A. B. is guilty of the speaking spreading abroad of the said words in the said Declaration specified and they assessed the damages of the said W. B. by occasion of the speaking of the same words besides his costs and expences by him about his suit in this behalf laid out to 4 l. 5 s. for those costs expences to 8 d. Therefore at the same Court that the said W. B. should recover against the said A. B. his said damages by the Jury aforesaid in form aforesaid assessed and also 3 s. 8 d. for his costs and expences which said damages in the whole do amount unto 5 l. 17 s. 4 d. In witness whereof the seal of the Steward of the Court aforesaid is put Dated at the Castle of Y. the 12. day of March in the year of our Lord 1657. And hereupon the same VV. B. prayeth that the same A. B. may shew to the Court here and assign the defects wherein false Judgment is made in the said plaint if any be done to him whereupon the same A. B. saith that the same Record is vitious and much defective to wit in that it doth not appear by the Record before whom the first Court was held and in this that the said VV. B. by his Declaration did complain himself to be damnified and made worse to the value of 40 l. whereas by the law of the land that Court cannot hold plea of 40 s. In this also that the same Court held the 12. of March was held before the Steward whereas it ought to be held before the Suitors of the same Court and the Sheriff of the County for the time being so that the same Judgment was given Coram non Iudice Also in this that by the same Record it appeareth that the same VV. B. appeared by P. P. his Attorney and the same A. B. appeared by S. D. his Attorney but in the Record is not mentioned any Warrant of Attorney for the same VV. B. or for the same A. B. in the said plaint And to the same A. B. saith that divers manner of ways in the County Court aforesaid false Judgment is made to him in the said plaint And hereupon prayeth that the said Judgment for the said defects and others being in the same Record as false and erroneous may be adnulled and altogether taken for nothing And the same A. B. to the said 5 l. 17 s. 4 d. which the said A. B. by vertue of the same Judgment for his damages by occasion of the premisses recovered against him and unto all things which he by occasion of the same Judgment lost may be restored c. And the same W. B. saith that in the Record aforesaid there is no errour nor to the same A. B. in the same County Court held at the Castle of Y. aforesaid false Judgment is made in the same plaint and prayeth that the Justices here proceed to the examination of the same Record and to resorm and correct the false Judgment if any be found therein proved or can be made appear And because the Justices here will advise themselves of and upon the premises before they further proceed therein day is given c in Oct. pur to hear thereof what the Court hereof and upon the premises shall consider because the Justices hear thereof not as yet c. At which day here came aswell the said A. B. as the said W. B. by their Attorneys aforesaid And because the Justices here further will advise themselves of and upon the premisses aforesaid before they proceed further therein further day is given c. in Mens Pas to hear thereof what the Court hereof and upon the premisses aforesaid shall consider for that the Justices hear thereof not as yet c. If any errors and defects be found in the proceedings then will the Judgement be reversed and a Writ of Restitution awarded It was commanded the Sheriff if A. B. and C. D. should secure the same Sheriff of prosecuting their complaint then in his full County he should make to be recorded the plaint which was in
this day he hath ready under his seale and the seales of the said four lawfull men who were present at the Record as by the same Writ to him it was commanded to answer to the said C. D. in the same plea whereupon the same A. B at the same Court put in his place S. D his Attorney in the same plea. And the same C. D. at the same Court by his Attorney aforesaid complained against the same A. B. for that to wit that whereas the same C. D. the last day of Dec. in the year aforesaid at W. aforesaid and within the jurisdiction of the Court aforesaid was possessed of one piece of woollen cloath containing eleven ells price 34 s. as of his proper goods and chattels And being so thereof possessed the same piece of cloath out of his hands and possession casually lost which said piece of cloath afterwards to wit the 12th day of February then next following into the hands and possession of the said Defendant by finding came Notwithstanding the said Defendant knowing the said piece of cloath to be the proper piece of cloath of the said Plaintiff and to him of right to belong and appertain and minding and intending the same Plaintiffe of the same piece of cloath craftily and subtilly to deceive and defraud the same piece of cloath although thereof the third day of March in the yeare abovesaid he was requested to the same and hath not delivered but the same piece of cloath afterwards to wit the 18th day of March then next following at VV. aforesaid within the jurisdiction of this Court aforesaid unto his proper use he converted and disposed to the damage of the said Plaintiff of 39 s. And thereof he bringeth suit c. And the said Defendant at the same Court prayeth Licence thereof to imparle untill the next Court and hath it c. The same day is given to the said Plaintiffe then there c. At which day the Court was held within the said Honour of P. the 26th day of May then next following came aswell the said Plaintiff as the said Defendant by their Attorheys aforesaid And the same Defendant prayeth further Imparlance untill the next Court within the said Honour to be held and hath it c. The same day is given to the said Plaintiff then there c. At which said next Court holden within the Honour aforesaid the 26th day of May then next following came as well the same Plaintiff as the same Defendant by their Attorneys aforesaid and hereupon the said Defendant prayeth further imparlance thereunto to speak until the next Court of the Honour aforesaid to be held and hath it c. The same day is given to the said Plaintiff then there c. At which said Court held within the said Honour the day of then next following came aswell the said Plaintiff as the said Defendant by their Attorneys aforesaid And the same Defendant then defended the force and wrong when c. And said that he was in nothing guilty of the premisses above imposed upon him as the said Plaintiff by his said Declaration complained against him and of this he putteth himself upon the Countrey and the said Plaintiff likewise whereupon it was then commanded to the Bailiff of the Honour aforesaid that he cause to come to the Court of the Honour aforesaid to be held by 12 free and lawfull men of the Honour asoresaid to try the issue aforesaid above joyned Day was given to the parties abovesaid then there c. At which said next Court held within the said Honour the day of then next following came aswell the said Plaintiff as the said Defendant by their Attorneys aforesaid and the said Bayliff returned the Pannel with all the Jurors whereof 12 being called came and were sworn and said upon their oath that the said C. D. was possessed of the said piece of cloth in the Declaration aforesaid specified and that the same piece of cloth by finding came to the hands of the said A. B. and that the said Plaintiff requested the same A. B. to deliver to the same Plaintiff the same piece of cloth and that the said Defendant did not deliver the same to the said Plaintiffe And further the said Jury said that the said Defendandant doth yet detain in his hands the same piece of Cloth and if upon the whole matter in form aforesaid found the same Defendant to be guilty of the premisses in the Declaration aforesaid specified or not the Jury aforesaid are altogether ignorant and pray the advice of the Court in the premisses and if upon the whole matter in form aforesaid found it shall seem to the Court that the said Desendant is guilty of the premisses in the Declaration aforesaid specified then the said Jury say upon their oath That the same Defendant is guilty of the premisses in the Declaration afore said specified And then the said Jury do assesse damages by occasion of the premisses besides costs and charges by him about his suit in this behalfe laid out to 20 s. and for those costs and charges to 12 d. and if upon the whole matter in form aforesaid found it seemeth to the Court here that the said Defendant is not guilty of the premisses in the Declaration aforesaid specified then the Iury aforesaid say upon their oath That the said Defendant is not guilty of the premisses in the Declaration aforesaid specified And because the same Court will advise of and upon the premisses before they give Iudgement therein day is given to the parties aforesaid here until the next Court to be held in the said Honour to hear thereof their Iudgment c. At which said Court held in the said Honour the day of then next following came aswell the said Plaintiff as the said Defendant by their Attorneys aforesaid And because the same Court of giving their Iudgment therein are not advised day is given to the parties aforesaid until the next Court to hear thereof their Iudgment c. At which said Court held in the said Honour the day of then next following came aswell the said Plaintiff as the said Defendant by their Attorneys aforesaid whereupon the premisses being seen and by the Court here fully understood it seemed to the Court here that the same Defendant is guilty of the premisses in the Declaration aforesaid specified Therefore it is confidered by the same Court That the same Plaintiff recover against the said Defendant the said 21 s. by the Jury aforesaid in form aforesaid assessed and also 22 s. for his costs and charges by the Court here by his consent of increase adjudged which said damages do in the whole amount unto 53 s. And the said A. B. in mercy c. And hereupon the said C. D. prayeth That the said A B. may shew to the Court here and assign the defects wherein false judgment is made to him in the said plaint in the said Court if any be made Whereupon the
Defendant in any Action or Suit is to do is to appear and shew himself in person or by an Attorny in the Court to answer the Action and defend the Suit He may also appear by an Essoin which is an excusation coming from the French word Exoine it doth delay the cause a Court day longer the common Essoin is de male vener and if he do not appear the next Court then it passeth by default Judgment entred and Execution issues out against his Goods and Chattels But after the Defendant hath once appeared in the Court by an Attorny there shall be no Essoin allowed But if he appear neither by an Attorny nor by Essoin then further Processe issues out against his Goods and Chattels viz. The Precept of Duces tecum and attachment and Distresse upon attachment infinite untill he do appear After the Processe executed the next Court the Plaintiff is to appear and file his Declaration to shew his cause of Action or matter of complaint in which must be shewn who complaineth and against whom for what matter how and in what manner the Action grew between the parties and at what time and place the wrong was done and in conclusion he must aver and profer to prove his Suit and shew the damage he hath sustained by the wrong done unto him Speciall care ought to be had that it be drawn in manner and form yet by the Statute of 36 E. 3. cap. 15. A Declaration shall be good if it have matter of substance though the terms he not apt however to avoid doubts and that the Attornies may not depend altogether upon uncertainties let them be diligent in taking right and full instructions from their Clyents and inform themselves of every puntilio which may be materially incident to the case that so they may know what manner of Action is most proper to be brought on the behalf of their Clyents In some cases manner and form is chiefly to be looked at but in other some not altogether so materiall As if an Action of debt be brought of the sale of a Horse for five pounds where the bargain was for two horses the Defendant pleads that he oweth him nothing in manner and form the Jury ought to find for the Defendant for that that the bargaine was for two horses for five pounds fo manner and form there is materiall and parcell of the charge and so it is in every case where the Action varies from the bargain or speciall matter But if an Action of the case be brought by the Husband alone upon an Assumpsit to him by R. the Desendant saith he did not assume in manner and form and the Plaintiff gives in evidence of an Assumpsit made to his wife and his agreement to it afterwards this is good and manner and form is not materiall If an Action be brought before there is any cause of Action the Declaration is insufficient But if a Trespasse was done the fourth day of May and the Plaintiff declareth the same to be done the fifth or the first day of May when no trespasse was committed yet if upon evidence it salleth out that the Trespasse was done before the action brought it sufficeth 19 H. 6. 47. 5 E. 4 5. 21 E. 4. 66. And Littleton saith That the Jury may finde the Defendant guilty at another day then the Plaintiff supposeth for the Law of England respecteth more the effect and substance of the matter then every nicity of forme and circumstance Apices juris non sunt jura Note that in actions of debt upon Emisset for Wares for Money or other things lent upon an In simul computassent actions of Trespasse Battery or upon the case c. you are not tyed to lay the certaine day but you may lay it any time after the cause of action accrued If an action upon the case be brought upon an Assumpsit the Plaintiff must declare upon the whole promise made and not upon part of it else the Declaration is not good Mich. 22. Car. b. r. If there be words in a Declaration which have no signification the words shall be adjudged to be void words and shall not hurt the Declaration but the Declaration shall be taken as if those words were left out of the Declaration Hill 23. Car. B. R. Pasc 24. Car. B. r. A Declaration ought not to shew a thing by implication it must be set forth expressely If the Plaintiff do alter his Declaration after the Defendant hath pleaded to it the Defendant may alter his Plea For by the amendment of it it may be so altered in matter that it may require a different answer from what was sormerly pleaded and in that case if he should not amend his Plea he might be triced sor want of a good Plea Prac. reg fo 235. A Declaration is sometimes called a Count as Count in debt Kitch 281. Count in Trespasse Brit. cap. 26. Count in an Action of Trespasse upon the case for a slander Kitch 251. But a Count is more properly used in Reall than Personall Actions And a Declaration more applyed to Personall than Reall F N. B. 18. a. 60. D. N. 71. a. 191. c. 217. a. If after Processe executed the Plaintiff do not appear and file his Declaration and the Defendant doth appear upon such default the Plaintiff is non-suited and the Defendant may have Judgment and Execution for his costs In every case where the Plaintiff may have costs against the Defendant there if the Plaintiff be non-suit or a Verdict passe against him the Desendant shall have his costs as in Trespasse Debt Covenant by Specialty or upon Contract Detinue Accounts Actions upon the case or upon the Statute for personall wrongs 23 H. 8. cap. 15. Administrators nor Executors shall not pay any costs neither upon Non-suit or Verdict because their Actions are brought upon Debts or Contracts not made between them and the Defendants But if they bring Actions for things done to themselves as for the taking away of goods from them c. and they be Non suit or Verdict passe against them in this case they shall pay costs After the Plaintiff hath appeared and Declaration filed upon the appearance of the Defendant Emparlance is to be entered Emparlance is when the Defendant being to answer the Suit or Action of the Plaintiff desireth some time of respite to advise himself the better what he shall answer being nothing else but a Continuance of a cause till a further day Now to demonstrate what the word Continuance signifieth it is after a Suit is begun and the Plaintiff hath declared he must continue his Suit from Court day to Court day or else the adverse party may take advantage of it and this is called a Continuance being but onely a proroguing of a Suit from time to time to keep it in being And this is by the Act or order of the Court and
and truly try this Issue between party and party according to your Evidence so help you God And as they are sworn enter by every mans name Jur. viz. juratus est he is sworn Being all sworn bid them stand together to hear their Evidence Then swear the Witnesses The Evidence that you are to give to this Inquest touching the matter in variance shall be the truth the whole truth and nothing but the truth so help you God Then let the Jury depart from the Bar to agree upon their Verdict At their return command the Bayliff to call every one by their names and count them Then aske them if they be all agreed on their Verdict Jur. yea Who shall say for you Jur. The foreman Then call the Plaintiff A. B. appear or thou loseth thy Plaint three times Then aske the Jury if they will stand to their Verdict Jur. yea Whether do you find for the Plaintiff or for the Defendant Jur. for the Plaintiff What damages Jur. 2 d. What costs of Suit Jur. 2 d. Harken to your Verdict this you say you find for the Plaintiff and assesse damages 2 d. and costs of Suit 2 d. so say you all Jur. yea Then bid the Plaintiff pay the Jury If the Verdict find matter incertainly or ambiguously it is insufficient and no Judgment ought to be given thereupon as if an Executor plead plene administravit viz. fully Administred of all the goods and Chattels which were of the Testator and issue is joyned thereupon and the Jury find that the Defendant hath goods within his hands to be administred but find not of what value this is incertain and therefore insufficient A Verdict that findeth part of the issue findeth nothing for the residue this is insufficient for the whole because they have not tryed the whole Issue wherewith they were charged But if the Jury give a Verdict of the whole Issue and of more c. That which is more is Surplusage and shall not stay Judgment for utile per inutile non vitiatur but necessary incidents required by the Law the Jury may find The Court being ended adjourn the Court to another day to be kept commanding the Bayliff to make Proclamation O yes c. and say All manner of persons that have any more to do at this Court let them come forth and they shal be heard otherwise they and every one else may depart for this time and keep their houre here on Munday the fourth day of August next by nine a clock in the morning c. Now the Court being done and the Defendant condemned by Verdict then Judgment being entred a Fieri facias shall be awarded to make Levy of his goods and thereupon the Defendants goods shall be taken praised and sold to satisfie the party Plaintiff and if the Defendant hath no goods whereupon Levy may be made then the Plaintiff rests without remedy in this Court Of Distresse COnsidering the many lacrymable wrongs the Country hath sustained by those Locusts that litigious generation of men a clamorous company qui ex injuria vivunt Seminaries of discord worse then any polars by the high way side monstra hominum rabulas forenses irreligious harpies scraping griping catchpoles Bayliffs and corrupt practisers and how much the ignorant people are abused and deceived yea many times as the sad experience of many will inform us ruined and utterly undone by them they being the sole causes of those ignominious aspersions cast upon the Court The advantage that it would produce to the Common-wealth is in-explainable if the Statute of 1. of H. 5. cap. 4. were observed that is that Sheriffs Bayliffs one year not to be in that Office in three years after because by their continuall being in that Office they grow so crafty and cunning that they are able to deceive the Sheriff and ruine the whole Country Therefore that the Country may not be altogether ignorant of their seeming authorized Actions I will declare what and when they may distrain and what and when they may not But first to declare what a Distresse is A Distresse is either said to be reall that is when Land is distrained upon a grand cape or petit cape of which we have nothing to say here or it is said to be personall where moveable things are distrained and this is that we are to speak unto Therefore a Distresse is where one doth take and distrain the Beasts Cattell and other things of another man in some ground or place for debt rent or other duty behind or for some wrong or damage done The Sheriff nor his officers cannot break a mans house in the night time to execute any Processe or to do any ministeriall act for the Law giveth no colour to break a mans house by night None can be distrained that are out of the Jurisdiction of the Court Marl. cap. 2. No Distresse can be made in the night but for Damage feasant The Bayliff may attach a man by his goods citing him to appear and answer such a day at such a mans Suit in such a Court and for such a cause Or he may onely give the Defendant warning in the presence of two others to appear such a day in such a Court at such a mans Suit it is sufficient And if an Attachment be made it must be of such goods of the Defendants own proper goods as are movables viz. by meer Chattels personalls which may be forseited by Outlawry and not immovables A Bayliff cannot sever horses joyned to a Cart. Sheep may not be distraind if there be a sufficient Distresse besides No man shall drive a Distresse out of the County where it was taken A Distresse may not be impounded in severall places upon pain of five pounds and trebble damages A man cannot work goods distrained nor convert them to his own use The goods of any man may be taken in any place within the County in another mans house or ground as well as his own If a Bayliff distrain or attach the horse of a master where the Plaint is against the servant Trespasse lyes for the Master against the Bayliff for the Bayliff ought to take notice at his perill whose goods he distrains or attaches 13 H. 4. fo 2. 14 H. 4. 24. 11 H. 4. 90. Dr. and St. 139. After Distresse or Attachment made if the Bayliff doth not return his Precept the next Court Trespass lyes against the Bayliff for the Defendant and an Action of the case lyes against him for the Plaintiff for not returning of the Precept 10 E. 4. fo 18. 3 H. 7. fo 3. By Choke If one take Beasts in the name of a Distresse he ought to put them in an open Pound for that he who is distrained may give to them sustenance but if he distraine dead Chattels he may put them where he will but if they spoyl in his default he must answer for them 19 E. 4. fo 2. b. If goods distrained
the day and place within contained and to the parties within written that day have prefixed that then they be there in that Plea as just it may be to proceed as within to me is commanded A. B. complaines of C. D. in a Plea of taking of the Beasts of him the said A. B. in testimony of which matter E. B. S. D. I. W. and I. R. four legall men of those who at the Record present were in full Court at the Castle of Y. in the County aforesaid the tenth day of Aug in the year c. to the same Record their Seals severally have put the day and year abovesaid Note that though the Plea be discontinued in the County yet the Plaintiff or Defendant may remove the Plaint into the Common Pleas or Upper Bench by a Recordare c. and it shall be good and he shall declare upon the same And the Court shall hold Plea upon the fame Plaint for if the Plaint be continued in the County and issue joyned upon it yet nothing shall be removed but only the Plaint and in the Common Pleas the Plaintiff may declare anew c. Likewise if the Recordare bear date before the Plaint was entred in the County it is good enough and the Record is well removed The nature of a Pone A Pone doth nothing differ from a Recordare but that a Pone is allwayes to remove such Suits as are before the Sheriff by Writ of Iusticies and not by Plaint onely but the Recordare is to remove the Suit that is by Plaint onely without Writ F. N. B. 70. 11. By vertue of this Writ to me directed I have put before the Justices c. of the Common Bench at Westminster the Plea which is in my County by Writ of his Highness the Lord Protector of Iusticies betwixt A. B. and C. D. of a Plea of debt as it is said as it appeareth in a certain Schedule to this Writ annexed c. At my County Court held at the Castle of Y. in the County aforesaid upon Munday the twelfth day of August in the year of our Lord 1658. c. A. B. complaineth of C. D. of a Plea of debt in testimony of which matter R. L. S. R. T. O. and S. D. four legall men of those who at the Record present were in full Court their seals severally have put the day and year abovesaid A. B. complaineth of C. D. of a plea of debt 20 l. That if a plea be removed by Pone at the suit of the Defendant or Plaintiff and afterwards they proceed in this Court in the plea and give judgement and award execution c. then the Defendant or he against whom the judgement was given and execution awarded shall have an attachment against the Sheriff directed to the Coroner to answer as well his Highness the Lord Protector for the contempt as the party his damages c. Of the Writ of Prohibition THe Writ of Prohibition is of the same nature of a Recordare and a Pone but not in use Of the Consultation or Procedendo THese two Writs are both of one nature though the Writ of Consultation be obsolete and the writ of Procedendo stept up into its place it lieth where a cause hath been formerly removed by Pone or Recordare from this Court into the Vpper Bench or Common Pleas and for want of sufficient cause of removeall is sent back again Fitz. old Natura brevium 50. The nature of a Writ of False Judgement A Writ of salfe Iudgement lieth where an erroneous Judgement is given in this Court being no Court of Record then the party grieved by the Judgment may have this Writ and remove all processe of the suit into the Common Bench and there it shall be examined if it be found erroneous the Judgement shall be reversed and the suiters of the Court who gave the Judgement amerced Note that a Writ of false Judgement lieth not but in a Court where there are Suitors for if there be no Suitors there the Record cannot be certified by them F. N. B. 43. H. By vertue of this Writ to me directed to be Recorded I have caused the Plea which is in my County together with the proceedings and the Judgement betwixt the parties beneath and to the same parties day have prefixed to be before the Justices within written at the day place within contained as the Writ exacts and requires which plea with the proceedings and judgment appeareth in a certain Schedule to this Writ annexed A Plaint by Writ in the County Court holden at the Castle of Y. in the County aforesaid on Monday the 23. day of August the year c. before the Suitors of the same Court in the time of I. B. Esquire Sheriff of the County aforesaid according to the Customs and Priviledges of the same Court time whereof the memory of man is not to the contrary have been used and approved in the same At this Court came A. B. in his proper person and brought here into Court a Writ of his Highnesse the Lord Protector of Iusticies which said Writ follows in these words O LIVER Lord Protector of c. To the Sheriff of Y. greeting A. B. hath complained to us that C. D. upon him the said A. B. at the Castle of Y. hath made an assault and hath beaten wounded and evil intreated him so that of his life it was despaired and hath done him other wrongs to the great damage and grievance of the said A. B. and therefore we command you that you hear the said plaint and after cause them to be therefore brought to justice for the same that we hear no more complaint therein for want of justice Witnesse our selves at Westminster the 10. day of August in the year of our Lord 1656. And thereupon found Pledges to prosecute the said plaint that is to say Io. Doo and Ric. Roo And thereupon the said A. B. put in his place S. D his Attorney in the plaint aforesaid and by his said Attorney required processe to be made to him upon the same And it was commanded by the said I. B. Esquire Sheriff of the said County to all and singular his Bailiffs jointly and severally and their Deputies that they or some of them should do justice to the said C. D. so that he should be and appear at the next County Court to be holden at the Castle of Y. on Monday the 20. day of September then next in the year aforesaid to answer the said A. B. in the plaint aforesaid At which day came the said A. B. by his Attorney aforesaid and offered himselfe against the said C. D. in the plaint aforesaid and then and there came I. P. one of the Bailiffs in the County aforesaid of the said I. B. Sheriff of the said County and returned the said precept so directed as aforesaid served and executed on him and the said C.
answer for the same A. B. and C. C. his Clyents to the same E. F. in the said Plaint And the said Attorny for his said Clyents saith nothing in Bar as in others by which the said E. F. his damages against the said A. B. C. D. by occasion of the taking and unjust detaining of his Cattle aforesaid ought to recover but because it is unknown to the Court here what damages the said E. F. sustained by occasion of the premisses It is commanded to the said I. S. then Bayliff of the Wapentake of W. aforesaid one of the Ministers of the County Court aforesaid that he cause to come before the said Sheriffe at the next county Court of the County aforesaid to wit the 15th day of May in the yeare abovesaid at the Castle of Y. aforesaid then next following to be held twelve honest and lawfull men of the neighbourhood of S. to be suspected by neither party to enquire upon their Oath what damages the said E. F. sustained aswell by the occasion of the taking and unjust detaining of the cattle aforesaid as for his costs and charges by him about his suit in this behalf laid out and the same day was given to the said E. F. here c. At which said next County Court the same 15. day of May in the yeare abovesaid before the same Sheriff of the County aforesaid held came the said E. F. by his Attorney aforesaid And the same I. S. Bayliffe of the Wapentake aforesaid sent not his precept thereof Therefore as before it is commanded to the said I. S. Bayliff c. that he cause to come here at the next County Court before the same Sheriff of the County aforesaid to wit the 12 day of A. in the yeare abovesaid at the castle of Y. aforesaid to be held the 12th c. to enquire c to inform aforesaid c. At which day to wit the 12th day of April aforesaid before the same Sheriffe of the County aforesaid came the same E. F. by his Attorney aforesaid And the said I. S. Bayliffe c. and one of the Ministers of the same Court returned before the same Sheriffe the said precept de venire fac in all things served and executed And thereupon the Jury being thereof impannelled and called came and to enquire in forme as aforesaid sworn and charged say upon their oath that the said E. F. sustained damages by reason of the taking and unjust detaining of the Cattle aforesaid besides his costs and charges by him about his suit in this behalfe laid out 30 s. and for these costs and charges to 12 d. Therefore it is considered by the Court here that the said E. F. recover against the said A. B. and C. D. his said damages by the Jury aforesaid in form aforesaid assessed and also 26 s. to the same E. F. by the Court here for his said costs charges of his assent of increase adjudged which said damages in the whole amount unto 57 s And the same A. B. and C. D. in mercy c. Whereupon it was commanded to the same I. S. Bayliff of the Wapentake of W. aforesaid that of the goods and Chattels of the same A. B. and C. D. in his Bayliwick he should levy the damages aforesaid and that he have the money before the said Sheriffe at the next County Court at the castle of Y. to be held to wit the tenth day of March in the yeare abovesaid to render to the said E. F. for his damages aforesaid Whereupon the same E. F. prayeth that the said A. B. and C. D. would assigne and declare to the Court herein what or wherein false judgement is made to him in the said Plaint if any thing can be found proved or made appear c. And hereupon the same A. B. and C. D. say that the said Record is vitious and very much defective in this to wit that by the same Record it appeareth that the same cattle were taken the 15. day of January in the yeare abovesaid and that the complaint thereupon was levyed at the County Court of the Sheriff the 19th day of December in the yeare abovesaid so that the complaint was levied before the taking of the cattle afore made c. Also in this that by the Record it appeareth that the County Court aforesaid was held before the said Sheriffe of the County aforesaid whereas the same Court ought to be held before the same Sheriffe and suitors of the same Court so that the same Plaint was levied Coram non judice And the processe thereupon adjudged without any warrant in Law And so the same A. B. and C. D. say that in the County aforesaid false judgement was done to them in the said Plaint And pray that the said judgement for those errours and others in the same record and proceedings being may be revoked adnulled and altogether taken for nothing And that they unto all things which they by occasion of the judgement aforesaid have lost may be restored c. It was commanded the Sheriffe that if A. B. should secure the same Sheriffe to prosecute his complaint that then taking with him four discreet and lawfull Knights of the County aforesaid in his proper person he come to the Court of the Honour of P. and in full Court cause to be recorded that Plaint which was in the same Court of his Highnesse the Lord Protector between C. D. and the same A. B. in a certain Action upon the Case to the same C. D. by the same A. B. done as it is said Whereupon the same A. B. complaineth false judgement to be made to him in the said Court and that he should have here the Record at this day to wit Octab. Hill under his seal and by four lawfull men of the same County of those who shall be present at the Record and that he summon by good summoners the said C. D. that he should be here to hear that Record And that he have then here the names of the foure Knights and that Writ c. And now here at this day to wit Octab. Hill came as well the same A. B. by S. D. his Attorney as the same C. D. by P. P. his Attorney And the Sheriffe to wit G. M. Esq now returneth that the same A. B. found to the same Sheriff pledges to prosecute Io. Doo Ric. Roo And that the same C. D. was summoned to be here at this day by Io Den and Ric. Fen and that he by vertue of the same Writ to him directed took along with him I. S. W. P. I. H. and W. VV. four discreet and lawfull Knights of the County aforesaid and in his proper person came to the said Court held at P. in the County aforesaid the 15th day of October in the yeare of our Lord 1657. and in full Court made to be recorded the said Plaint whereof in the same Writ mention is made which said Record here at
same A. B. saith that the said Record is vicious and much defective and that false judgment is done to him in the said plaint in this that in the Record no mention is made whole that Court of the Honour of P. is and in this that no mention is made who is Lord of the said Court nor who are Suitors of the same and also in this that the Jury have not found that the said A. B. converted the same peece of Cloth to his proper use and so the same A. B. saith that divers ways in the said Court false Judgment is done to him in the said plaint And prayeth that the said Judgement for those divers errors and others being in the Record as false and erroneous may be revoked and taken for nothing And that he unto all which he by reason of the said false judgement lost may be restored And that the Justices here proceed to the examination of the premisses And because the Justices here c. SOME SELECT PRESIDENTS OF DECLARATIONS AND PLEADINGS Incident and belonging to this COURT Debt Executor against an Executor upon a Bill E. F. Executor of the last Will and Testament of I. F. deceased by vertue of a Writ of Iusticies to the Sheriff of the County aforesaid directed by I. S. his Attorney complains of M. VV. Executor of the last Will and Testament of R. VV. late of T. in the County Y. husbandman deceased otherwise called R. VV. late of T. of Y. Husbandman deceased of a Plea that he render unto him 7 l. of c. which he unjustly detains from him c. for that whereas the said R. VV. in his life time that is to say the 20. day of c. year c. at the Castle of Y. in the County of Y. and within the liberty and jurisdiction of this Court by his bill obligatory sealed with his Seal and here in Court produced bearing date the day and year abovesaid acknowledged himself to be indebted to the said I. F in his life time the whole and just sum of 7 l. of c. to be paid to the said I. F. his heirs executors administrators or assigns upon the third day of May next ensning the date of the said Bill and for the payment thereof the said R. VV. then and there bound himselfe his executors administrators and assigns Neverthelesse the said R. VV. in his life time though often thereunto required the said 7 l. to the said 1. F. whilest he was living hath not paid neither hath the said M VV. Executor of the last Will and Testament of the said R. VV. after his death paid the same to the said E. F. Executor of the last Will and Testament of the said I. F. to which said M. VV.'s hands came all and singular the goods and chattels which were the said R. VV.'s in his life time sufficient to satisfie all the debts which the said R VV. at the time of his death owed to any person or persons whatsoever as also to satisfie the said E. F.'s debt but the said R. W. whilst he lived refused to pay the same to the said I. F. in his life time and the same M. W. likewise after the said R. W.'s death refused to pay the same to the said E. F. after the death of the said I. F. and still refuseth so to do and unjustly detains the same by reason whereof the said E. F. saith he is damnified 10 l. and thereupon produceth this suit c. And the said E. F. produceth here in Court the said letters testamentary by which it appears the said E. F. to be Executor of the last Will and Testament of the said I. E. deceased c. Vpon a Bill to be paid at the day of marriage and issue upon it T. N and E. his wife Administratrix of the goods and chattels which were of I. B. deceased complains by S. D. his Attorney of I. H. of C. in the said County Gent of a Plea that he render unto them 5 l. which he unjustly detains c. for that whereas the said I. H. such a day year and place by his certain bill obligatory with his seal sealed and here in Court produced the date whereof is the same day and year For and in consideration of one Gold-ring with a certain Stone called a Diamond in the same Ring fixed of the aforesaid T. B. in his life time received the day of the making of the aforesaid bill did acknowledge and grant to and with the aforesaid T. B. in his life time that he the said I. H. his executors or assignes would pay or cause to be paid to the aforesaid T. B. his Executors or assignes for the same Ring at such a day and time as he the said I. H. should be wedded or married or at any other time after his marriage whensoever he should be required by the aforesaid T. B. his Executors or assignes or by him that should bring the said bill the said sum of 5 l. to his or their use the aforesaid time to be paid and the same T. N. and E. in fact say that the aforesaid I. H. after the making of the said bill to wit such a day year and place within the Parish Church of H. did take to wise one I. D. by which the action did accrew unto the said T. R. in his life and to the said E. after the death of the said T. B. whilst she was sole and to the said T. N. and E. after espousals between them celebrated to require and have of the aforesaid I. H. the same 5 l. Yet the aforesaid I. H. although often required the aforesaid 5 l. to the aforesaid T. B. in his life time or to the aforesaid E. whilst she was sole to whom the administration of all the goods and chattels which were of the aforesaid T. B. the time of his death such a day year and place was committed to the aforesaid T. N. and E. after espousals between them celebrated hath not rendred but the same to render to them hath denied and the same to them the said T. N. and E. as yet to render doth deny and unjustly detain whereupon they say they are damnified and have damage to the value of 10 l. and thereupon they bring their action c. And they bring into Court here the letters of administration c. The Defendant pleads that he was within age at the time of the making of the Bill AND the aforesaid I. F. by R. B. his Attorney comes and defends the force and injury when c. and sayes that the aforesaid N. and E. ought not to have their action aforesaid against him because he saith that he at the time of the making of the Bill aforesaid was within the age of one and twenty years and this he is ready to aver whereupon he demands Judgment whether the aforesaid T. N. and E. ought to have their action aforesaid against him c.
proceeding against the principal but in case where there are moveables of the principal to satisfie the debt the Sureties as it seems shall not be charged Stat. de Mercatoribus Execution by vertue or force of a Recognisance shall be of all the goods and chattels of the Reconusor except the Beasts of the Plough and implements of Husbandry and of the moyty of his Lands West 103. The Recognisee by the first Writ shall not have Execution but of the Land which the Reconusor had at the time of the Reconusance and upon return that he had no Land then he shall have a Writ to try who had it at the time c. or after c. 36 E. 3. Execution 47. 19 E. 3. 1. Where two sued Execution the money was delivered to one and the Attorney of the other Mich. 14. E. 3. Execution 76. and the Desendant in Court did pay the money to one the other being absent and it was good and the Recognizance was withdrawn Mich. 22. E. 3. 15 Execution 87. The heir shall be charged in debt of the Lands which he had by descent the day of the Writ brought and not the day of Judgement Mich. 18. E. 2. Execution 241. If a man be in Execution upon a Statue and findes bail and doth not appear at the day but at another day the bail brings him in now it is in the Election of the Plaintiff to take Execution of his body and Land or to take the bail See 59. E. 3. Execution 43. If two sue Execution and before the Extent one dieth the Sheriff shall extend the Land and shall deliver the same to the other 11. R. 2. Briefe 938. But if two sue Execution of a Statute-Merchant and the Reconusor is returned dead and then one of the Conusees doth acknowledge the death of his Companion he shall not have Execution without suing a Writ out of Chancery 25 E. 3. 38 Execution 92. Where three are bound in a Statute joyntly and severally the Plaintiff shall have Execution against one or all of them at his election and not against two and so of an Obligation But if he bring debt against them all upon a joynt Bond the Execution shall be against all but if he bring it by severall Praecipe's he shall not have Execution but against one 34 E. 3. Execution 129. 14 H. 4. 19 Execution 29. Note further that a Recognisance though in the speciall signification it doth but acknowledge a certaine debt and is executed upon all the goods and halse the Lands of the Recognisor Yet by extention it is drawn also to the Bonds or Obligations commonly called Statute Merchant and Statute Staple as appeareth by the Register of Originall Writs fol. 146. 151. 152. Elegit what 4 ELegit is a Judiciall Writ by the Statute and lyeth for him that hath recovered debt or damages against one not able in his goods to satisfie and directed to the Sheriff commanding him that he make delivery of halse the parties Lands or Tenements and all his Goods and Chattels Beasts for the Plow excepted Old N. B. fol. 152. Register of Originall Writs fol. 299. 301. and the Table of the Register judiciall which expresseth diverse uses of this Writ In Elegit by force of the Statute of Westminster 2. Cap. 18. the Sherif may take in Execution the moietie of the Lands of the Conusor and all his Goods and Chattels except as before and may deliver them unto the Conusee upon a reasonable price or extent untill the debt be satisfied But the valuation of the goods and lands ought to be first found by the Inquisition of a Jury Co. 4. 74. And the Sherif is to deliver him seisin of them who is tenant by Elegit and shall do no waste Upon Elegit the Sheriffe ought to returne the extent and also that he hath delivered the Lands c. 12 Edward 3. Scire Facias 117. and the extent shall be good for the summe due notwithstanding that it be of more 44 Edward 3. 11. Execution 35. A man sued an Elegit and had a terme of yeares delivered to him in Execution which the Desendant had in possession as a Chattell and adjudged good An Annuity may be extended and Rents c. In every Elegit the Sheriffe must returne and set out the moietie distinctly unlesse they be Tenants in Common and in that case he must returne the speciall matter An Elegit issued out against one Greisley by the name of Greisley Esquire who was at the time of suing out the Writ made Knight and Baronet and it was insufficient and the Plaintiffe prosecuted a new Writ Brownlows Rep. 38. A Lessee had a Lease to the value of 100 pounds and after the Teste of the Elegit and before the Sheriffe had executed it assignes his terme to one who assignes it to the Plaintiffe in the scire facias and asterwards and before the last assignment the Sheriffe executes the Elegit and delivers the Lease to the Plaintiffe to be holden c. for satisfaction of the debt which came but to 43 pounds 6 s. 8 d. and it was held by all the Judges that the Sheriffe could not deliver the Lease at another value then what the Jury had found it at and the sale made by the Sheriffe is as strong as if it had been made in the open Market and that all the Goods and Chattels are bound after the Teste of the Elegit and cannot be sold by the owner after the Teste of the Writ Brownlowes Rep. 38. Comers versus Brandling There are good diversities between an Execution not valuable as of the Defendants body and an Execution valuable as of Lands c. As if two men are bound joyntly and severally in an Obligation and the one is sued condemned and taken in execution and afterwards the other is also sued condemned taken in execution and then the first escapes and the other brings his Audita Querela In that case he shal be barred to bring that Writ untill the Plaintiff be satisfied So likewise if the Desendant in debt dye in Execution yet the Plaintiff may have a new Execution by Elegit or Fieri facias But if the Plaintiff have once Execution of the Lands of the Defendant and after the Lands are evicted there before the Statute of 23 H 8. Cap. 5. he shall not have any new Execution for the Execution of the Lands was valuable and accounted in Law for a satisfaction and to avoid infinitenesse he shall have but one valuable satisfaction or one Execution with satisfaction at the Common Law Co. 5. 86. b. 3. Blumfields case If upon an Elegit there be no Execution but upon goods because there is no Land and the goods appeare insufficient hee may have a Capias For note it is in effect but a Fieri Facias though the word be Elegit But if there be Land
necessary to be done in for or about the better effecting of the premisses as fully and amply to all intents and purposes as I my selfe might do in person or otherwise and whatsoever my said Attorneyes or either of them shall joyntly or severally do in the premisses according to the true intent and meaning of these presents I do hereby allow of ratifie and confirme In witnesse c. The Grant of a Stewardship TO all to whom these presents shall come A. B. Knight sendeth greeting Know ye that I the said A. B. for divers good causes and considerations me thereunto moving have for me my heires and assignes given and granted and by these presents do give and grant unto John Preston of B. Gent. the Office of chiefe Steward and the place and execution of the Stewardship of my Mannor of Skipton in Craven in the County of York And the holding and keeping of all Courts Court-Leets viewes of Frank-pledge and of all other Courts of what kinde soever the same be to the said Mannor belonging or in any wise appertaining To have hold execute and enjoy the aforesaid Office of chiefe Steward and the place and execution of chiefe Stewardship and the holding and keeping of all manner of Courts usually held and kept within the same together with all manner of fees wages rewards profits advantages and emoluments to the said office of chiefe Steward or Stewardship of the said Mannor or Lordship belonging or appertaining or at any time heretofore accustomed and used to be paid rendered to or received by the chiefe Steward or Stewards there for the time being for or by reason of the said office of chiefe Steward or Stewards there for the time being from henceforth for and during the naturall life of him the said Iohn Preston In witnesse c. THE COURT OF Pypowders The definition of it what it is and why it was instituted together with its jurisdiction THis word Pypowder hath its definition from the French words pied i. pes and puldreux i. pulverulentus or as Skene de verb. significat Pede pulverosus dusty feet a Vagabond Pedder or Scotch Merchant who hath no certaine dwelling place and by whom Fares are usually kept to whom justice should be summarily ministred within three flowings and ebbings of the Sea or as some define it to be curia parvi ponderis and this is to be pedis-pulverizati and so the Lord chiefe Justice Anderson did use to define it for the speed and celerity there used in the present dispatch of businesse This Court of Pypowders is a Court of Record instituted and set up for the speedy and sudden dispatch of matters and differences arising in a Fare or Market and for the speedy doing of Justice and this in case of necessity for the sole benefit of Tradesmen and Merchants and for the present determination of all doubts and questions there then arising and that only upon sales and contracts had in the Fare and Market during the time thereof but not for matters acted and done before or at any time after the Fare or Market held but for matters happening and arising in pleno Mercato or in plenaferia 8 H. 7. fol. 4. b. This Court is of two kindes viz. 1. Either by prescription and this is an absolute jurisdiction 2. To be in a Fare and Market and to this a Court of Pypowders is incident And here two things are requisite viz. 1. This Court to be for matters arising in the Fare or Market 2. The matters to be determined there within and during the continuance of the Fare and Market and this appeares to be so by the Statutes of 17 E. 4. cap. 2. and 1 R. 3. cap. 6. and this is in a Court of Pypowders annexed unto a Fare or Market But in a Court of Pypowders which one hath by Prescription there they may heare and determine matters done before Bolstrod 2. part fol. 21. Goodson against Duffill Cro first part fol. 33. For in case of a Prescription such a Court may well be without a Fare from time to time and from day to day 13 E. 4. fol. 8. b. it was so adjudged in point of a Writ of Error where the error assigned to reverse a judgment given in curia pedis pulverizali there alledged to be held secundum consuetudinem ejusdem civitatis the Error insisted upon was because he shewed not that the matter upon which the action was brought was in pleno Mercato or in plena feria it is there expresly adjudged that this was no Error because the same was layd to be held secundum consuetudinem civitatis so that such a Court may be held without a Fare or Market and that the King may well grant such a Court to be held from day to day and such a Court may well be held by Custome without any Fare or Market and its proper denomination is from the speedy dispatch of businesse there so that the jurisdiction of this Court held by prescription may be extended unto all contracts and bonds to actions of trespasse and actions upon the Case and to this purpose was the case betweene Chambers Plaintiffe against Pert Defendant Hill 33. Eliz. Rot. 124. where an action of trespasse for an assault and battery was brought in a Court of Pypowders for an assault done long before and well maintainable as it was held But this Court held by prescription doth much differ from the ordinary Court of Pypowders and that by many circumstances This Court may be thus used and held viz. 1. Either by way of Grant 2. By way of confirmation And being thus held it differs from the ordinary Court of Pypowders which is incident to every Fare as appeareth by 12 H. 7. fol. 16. b. and 13 H 7. fol. 19. And the same Court is thus incident to a Fare and that of common right as it appears 13 E. 4. fol. 8. b. Old book of Entr. fol. 168. Fit dette en Gailor placito 1 f. 18. Fit account in Execution placito 3. If one will declare upon a matter in this Court in Fare there in such a case of necessity he ought to set forth in pleading that the same was done in pleno ferio or in plena Mercata otherwise not good But it is not so in case where a man hath and holdeth this Court by prescription in which Court they may heare and determine actions upon the case for words but not so in an ordinary Court held during the time of the Fare And by 6 E. 4. fol. 3. b. If a man in his Fare hath this Court here the Steward is Judge and no other for there are no Suitors and for a Judgment given in this Court a Writ of Faux judgment lieth not but a Writ of Error and with this agrees 7 E. 4 fol. 23. And where one claims to hold this Court by prescription and also by Charter if the Charter be not contrary
the King c. And lastly That the same Court of the Kings did judge not onely according to meer right and Law but also after equity and good conscience And after this order and in these two Courts was all Justice administred This Court continuing untill the time of William the Conqueror and ever since during the times and raignes of the ancient Kings and doth yet continue in manner the same forme and substance that it then was and will doe in despite of those Sycophants that have had their Primum mobile from it and now endeavour its subversion that Viperous brood of Birds that have so much defiled their owne Nest that the whole Countrey laughs at their folly and that the pleas ought no more to be taken from it now in our dayes without cause than they ought then to have been which may evidently be proved by those ancient Writs of Pone Recordare Writ of false Judgment and Accedeas ad curiam which are yet in use to this day and to this onely end to remove suits upon cause out of this Court into superior Courts But because this requireth great search of Records to make any further progression whereunto I have no accesse I must leave it to such whose abilities are more strenuous to travell in that so intricate a path This Court is no Court of Record but onely a Court Baron though it had in ancient times the cognition of great matters as may appear by Glanvile lib. 1. cap. 23. 4. by Bracton and Britton in diverse places and by Fleta lib. 2. cap. 62. but it was abridged by the Statute of Magna Charta cap. 17. and much more by 1 E. 4. cap. unico therefore pleas holden in this Court by Plaint nor pleas holden by Writ of Justicies are not taken as matters of Record for those pleas are holden by reason of the Court which the Sheriff holdeth by reason of his Office This Court as Dalton reporteth in his Office of Sheriffs was ordained for the Sheriff to hold Pleas there for particular or private matters under forty shillings between party and party It is now as it was alwaies holden once every moneth upon a day certaine the moneth being computed according to twenty eight dayes in the moneth and not according to the Kallander 9 H 3. c. 35. 2 E. 6. c 25. It holdeth no plea of debt or damages to the value of forty shillings or above because a Fine is due thereby to the Lord Protector yet if the debt be forty shillings or above and the Plaintiff will acknowledge in his Declaration the receit of so much as to bring it within forty shillings in this case the plaint is good But if the debt be above forty shillings as five pounds the Plaintiff cannot divide this into five severall actions to make this Court hold plea of it for in this case the Defendant may wage his Law And of Debt Detinue Trespasse and other actions personall above forty shillings the Sheriff may hold plea by force of a Writ of Justicies to him directed for that is in nature of a Commission to him and is not returnable Neither doth this Writ alter the nature of the Court for therein the Sheriff is not Judge but the Freeholders or Suitors yet all Judgments shall be pronounced by the Sheriff This Court may be kept at any place within the County at the pleasure of the Sheriff but not out of it Yet the Sheriff of Northumberland by the Statute is to keep his County Court in the Towne or Castle of Alnewicke and in no other place The Sheriff of Sussex by the Statute is to hold his County Court one time at Chester and the other time at the Burrough of Lewes and so to be kept alternis vicibus for ever And also the Sheriff of the County of Chester is to keep his County Court in the Shire Hall of the sayd County Daltons Office of Sheriffs fol. 157. 158. To this Court all persons dwelling within the County owe suit by reason of their resiance No Fine can be imposed in this Court upon any offendor because it is no Court of Record Co. 8. 41. 60. 11. 43. Fitz. 73. d. But a man may be amerced for a contempt or a disturbance of the Court in the presence of the Court. This Court will entertaine no suits for Charters of Land or for Inheritance or for Freehold of Land or any titles of Land or to make severall plaints upon one entire debt by Bond or Trespasse Vi armis or actions touching life nor actions to compell one to render an account The Office of the County Clarke THe Sheriff being elected which is done yearly in the morrow after All soules in the Exchequer Chamber by the Statutes 9. E. 2. 14 E. 3. cap. 7. And his Letters Patents do commonly beare date the sixth day of November 1 2 E. 4. e. 1. unlesse it be in cases of necessity that the Court is sorced to adjourne it Crook fol. 595. before the next County day after his election and discharge of the old Sheriff he ought to be very diligent in deputing and constituting a County Clarke such a one as is sufficient and able to keep the Court that no corrupt dealing be in it as he will answer the contrary and that he be very skilfull in entring the proceedings in it He ought to be endued with these qualities according to the description of Fleta Provideat sibi Vice com' de Clerico circumspecto fideli viro provido discreto gratioso humili pudico pacifico modesto qui in legibus consuetudinibusque provinciae officio Commit ' Cleric ' se cognoscat jura in omnibus teneri affectei quique sub-balivos in suis erroribus ambiguis sciat instruere docere c. Which is thus Paraphrased That a County Clarke ought to be endued and qualified with circumspection fidelity providence humility peace and modesty and must know himselfe or be expert in the Lawes and customes of the Countrey and to have ability to instruct or direct the Bailiffs or other Ministers in dubious things wherein they may erre He must neither be attracted by price nor lucratory corruption nor any sinister affection to wander out of the way of right Qui nec as Bracton adviseth ad dextram nec ad sinistram vel propter prosperitatem terrenam vel adversitatis metum à tramite justiciae declinet The Sheriff and not the Protector hath power to delegate this Office to whom he pleaseth as it appears in Myttons case in the fourth Reports where Queen Elizabeth by Letters Patents did grant the Office of Clarkship of the County Court of Somerset to Mytton with all Fees c. for life Arthur Hopton Esquire Sheriff of the same Shire interrupted him because it was incident to his Office Mitton complained to the Lords of the Councell and was referred to the two chiefe
Justices Wray and Anderson and after many arguments concerning the validity of that Grant and conference had with all the other Justices It was resolved by all the Justices Nullo contradicente aut reluctante that the sayd Letters Patents were voyd and their reasons were That the Office of Sheriff was an ancient Office before the Conquest and of great trust and authority for the King committeth unto him Custodium Comitatus And although the King may determine the Office ad beneplacitum yet he cannot determine this in part as for one Town or Hundred nor abridge him in any incidents to his Office for the Office is entire and ought to continue so without any fraction or diminution unlesse by Parliament and the County Court and the entring of all Proceedings therein are incident to the Sheriffs Office c. And though it was granted when the Office of Sheriff was void yet the new Sheriff shall avoid it as Scroges case in the time of Vacation in the Office of Chief Justice of the Common Bench Queen Mary granted the Office of the Exigenter of London resolved that the next chief Justice shall avoid it for it was incident to his Office Also in all Writs directed to the Sheriff concerning the County Court the King sayes in comitatu tuo and in return of Exigents made by him he sayes ad comitatum meum tent c. and the stile of the Court proves it and by the Statute of 33 H. 8. the Sheriff of Denbigh shall keep his Shire Court at c. In a false Judgment it is said in pleno com tuo recordari facias c. and in a Precept of Tolt it is said summoneas c. quod sit ad comitatum meum and it should be very inconvenient that another should have the custody of the Enteries and Rolls of Court which may be imbezzelled and the Sheriff responsible for them And it was resolved that the custody of all the Goales within every County appertains to the Sheriff by right and are annexed and incident by Law to the Sheriffs Office vide an 14 E. 3. cap. 10. But note that his late Highnesse in the year 1653. granted the Office of Clark-ship for the County of York to one Master R. H. though dissonant to common Law yet consentaneous to a gladiatorie power like those in Livie in armis jus ferre omnia fortium virorum esse that all Lawes are engraven on the hilt of a victorious Sword to whose Mandamus both Statute and common Law must submit He cannot execute the Office of a County Clark and practice as an Attorny both at one time it being prohibited by the Statute of 1 H. 5. 4. being a cause of encreasing Suits and a hinderance in dispatch of Clyents causes He cannot act any thing without the assent of the Suitors if he do an Action of Trespasse lyeth against the Sheriff He must be carefull in deputing honest able and sufficient men as Bayliffs for the executing of the Precepts issuing out of the Court. He ought to enter no Plaints except in case of Replevins out of Court but in full County sedente curia yet the case is otherwise at this day and as it seems good enough verifying the Diverbe communis error facit jus He must make sufficient Precepts after the Plaints entred but not before against the Defendants directed to his Bayliffs to attach or warn the Defendants to appear at the next County Court and answer the Plaintiff The County Clark and Plaintiff upon complaint of the party grieved may be examined by one Justice of Peace concerning the taking or entring of Plaints in the County Court and book against the Statute If thereby the Justice find any fault or offence committed that shall stand for a sufficient conviction and attainder without any further inquirie or examination And the said Justice must certifie the examination within a quarter of a year into the Exchequer by the Statute of 11 H. 7. cap. 15. If a Writ of discharge of the ancient Sheriff be delivered to the County Clark sitting in the County Court the authority of the said Sheriff although absent shall presently cease At the adjourning of every Court he must appoint a day certain for the next Court to the intent the Country may know at what time they may resort thither to hear the Lord Protectors Writs of Exigent and Proclamations read The Office of a Coroner in this Court A Coroner is one of the principall Officers of this Court being chosen in it by a Writ de Coronatore elegendo directed to the Sheriff by the Freeholders or Suitors in open and full Court and is published there and after the Sheriff is to returne and certifie into the Chancery the election of every such Coroner and their names likewise the County Clark in Court must administer to the Coroner his oath for the due execution of his Office The Coroner being thus elected and sworn he is to sit there with the Sheriff every County Court to give Judgment upon Outlawries which Judgment shall be given and pronounced by him in the fifth County and there the Sheriff is to returne the Outlawry with the Exigent But by this Judgment no goods are forfeited before the Outlawry appear upon Record neither shall such an Outlawry disable the party Exigents and Proclamations are to be proclaimed five County dayes one after another and once in the open Sessions and once at the Parish Church doore where he doth or did lately dwell that he appear or else that he shall be outlawed And if Proclamation be made five County dayes and at the fifth County day the Defendant appear not then the Coroner shall give Judgment that he shall be out of the Protection of the Lord Protector and out of the ayd of the Law F. N. B. 163. But before I conclude let me give you in brief why a man is said to be outlawed and a woman waived viz. A man is said to be outlawed because he was sworn to the Law and now for his contumacy he is put from the Law and said outlawed as it were extra legem positus but a woman is not so but she is waived and not outlawed because she was never sworn to the Law Of Attorneys in this Court IT was once objected to me that no Attorney could legally practice in this Court and that every man ought to prosecute his own cause himself Epitomie of the Statute of Westminster 2. cap. 10. That every man which oweth Suit to the County Court may make a generall Attorny to prosecute and follow his Suits in all Pleas And likewise in the Statute of Merton cap. 10. Quod quilibet liber homo qui sectam debet ad Com. c. libere possit facere Atturn suum ad sectas illas pro eo faciendas and an Attorny may doe every thing in the name and as the act of him who gave him the authority as if he did it himself he
is aliorum negotiorum gestor for qui per alium facit per seipsum facere videtar likewise these Statutes following do institute Attorneys in the County Court viz. 6 E. 1. cap. 8. 20 H. 3. cap. 10. c. F. N. B. 156. I could instance many more but I hope these are sufficient to stop the black mouth of a scurrilous Antagonist In their practice they ought to be honest and just according to their office and oath not exciting men to Suits especially such as are forrain and illegall nor for little offences and small debts nor voluntarily argenti gratia delay their Clyents nor demand any sums of mony for the prosecution of the Action otherwise then is allowed by the Court. Of Bayliffs A Bayliff is a Servant or Minister of the Law and by consequence a Servant to the party at whose Suit he is to distraine the goods of any one Therefore he ought to be true faithfull and vigilant in levying of Distresses he ought not to be exoculated with common rurall bribes as too many of them are His office is thus described by Fleta Balivus esse debet in verbo verax in opere diligens fidelis ac pro diserto appruatore cognitus plegiatus clericus qui de communioribus legibus pro tanto officio sufficienter se cognoscat Et qui sit ita justus quod ob vindictam seu cupiditatem non querat versus aliquos c. He is to be contented with his wages and fees allowed him which are certain and known and as I have described particularly being usually paid if he take more then he ought or commit any error in the Execution of his Office contrary to the tenure of his Precept then is he to forfeit forty shillings and to be convicted thereof by the examinations of the Justices of Peace or any of them 14 E. 3. cap. 9. And the Sheriff ought not by his oath to have any Bayliff but such as he will answer for and such as be true and sufficient men in the County and make each Bayliff take an oath for the true execution of his office but such things are now not taken notice of And by the Statute of 27 Eliz. cap. no Bayliff or other person ought to take a Distresse nor to execute any Processe untill he be sworn but now common experience and practice at this day bears testimony to the contrary Alfred once King of England hanged Judge Arnold for saving a Bayliff from death who had robbed the people by Distresse and for extorting of Fees If the like Law were executed upon some of our grand Malefactors it would make the Remainder more honest What Actions may be brought in this Court HAving precipitated my self thus far before I enter upon the Proceedings of the Court I will demonstrate the grounds and cause of Proceedings and that is Actions which is the form of a Suit given by Law to recover a mans right or actio nihil aliud est quam jus prosequendi in judicio quod sibi debetur Therefore what Actions will hold in this Court take as followes All Actions of debt either upon an account made by the parties for wages after a hire sums of mony owing or due from one man to another whether by writings or otherwise it is grounded sometimes by writing as an Obligation Bill Covenant or other especialty sometimes without writing as an Arbitrament Rent mony lent Parol Contracts or the like All Actions of Detinue Trover and Conversion deceit upon a Warranty a Delivery Nusance Case for scandalous words case upon Assumpsits and other Actions of the case as for a Dog killing Cattell abusing a Distresse spoyling my Goods c. Actions of Trespass Assault and Battery c. All these Actions would afford very much matter to treat of at large but least this Treatise should swell beyond its limits I will refer you to the reading Fitzherberts Natura brevium which doth learnedly treat of the nature of all Actions that lye in any Court of Judicature Within what time Actions must be brought ALL Actions of debt grounded upon any lending or contract as Book-debt without especialty and for Rents in arrear all Actions of Trespasse quare clausum fregit Actions of Trespasse Trover Detinue and Replevin for taking away Goods and Chattels Actions of account all Actions of the case except Actions for Slander which shall be sued must be commenced and brought within six years after the cause of such Action or Suit accrued if the Plaintiff be then of full age discovert compos mentis at Liberty out of Prison and in England otherwise within such time after he becomes so and not after All Actions of Trespasse for Assault Menace Battery wounding and imprisonment within four years after the cause of Action and not after All Actions of the case for scandalous words within two years next after the words spoken and not after Who may bring Actions and who not IDiots mad men or such as have lucida intervalla such as are deaf and dumbe or any other man woman or child except persons disabled by Law being wronged may bring the proper Action appointed for remedy in that case and all or any of these wronging others may be sued And if an Idiot sue or be sued he must doe it in person An Infant must sue by Prochein amy and being sued must defend by Guardian A Feme covert cannot sue but with her Husband An outlawed person is disabled to sue any Action against any man in any Court of Law or Equity yet as Executor he may sue because it is not in his own right but in trust for another but any man may sue him by Coo. Sup. Litt. 128. A man that is attainted in a Praemunire may not sue in any Action Idem 129. And a man that is a convict recusant is disabled so long as he so continues No Barretor can maintain any Action in this Court nor have Judgment unlesse it be required by all the Suitors West 1. cap. 3. But note all these disabilities remain during the continuation of the same impediment Of Pledges in this Court PLedges are absolute except it be for Forrainers or such as live out of the County or out of the Jurisdiction of the Court or such as are unmarried that have no goods distrainable and it is if these be Plaintiffs but if the Defendant should non-suit the Plaintiff and have Judgment against the Plaintiff and his Pledges I never yet saw the forme of the Judiciall Precept that ever issued out to levy the costs upon the Pledges goods Of the Proceedings in the Court BEcause I would not have the Country and young Practisers ignorant of the Proceedings in the Court which is the life of practice I thought it necessary to make an Abridgment of the terms of Law now used in the Proceedings And first of Appearance because it is the first thing done after goods attached The first thing the
some times by the agreement of the Attorneys of both parties The Rule or dies datus is when further day is given to the Plaintiff to put in his Declaration or to the Defendant to put in his answer the time given is usually fourteen dayes or more or lesse according to the order of the Court and the agreement of their Attorneys The next Court after the filing of the Declaration and Emparlance given the Defendant is to put in his answer which he pleadeth and saith in bar to avoid the Action of the Plaintiff either by consession and avoidage or denying the materiall parts thereof It must be legall full and perfect for a bad or insufficient plea is in Law as no Plea If Issue be not joyned upon the answer then the Plaintiff is to file his Replication to the answer of the Defendant which must affirme and pursue his Declaration Then the Defendant must put in his Rejoynder to the Plaintiffs Replication which must pursue and confirme his answer for every Rejoynder ought to have these two properties specially that is it ought to be a sufficient answer to the Replication and also to follow and enforce the matter of the Bar. If the parties be not at issue by reason of some new matter disclosed in the Defendants Rejoynder that requireth answer then may the Plaintiff Sur-rejoyn to the said Rejoynder if there be cause but it salleth out very seldome This Sur-rejoynder is a second defence of the Plaintiffs Declaration opposite to the Defendants Rejoynder Demurrer cometh of the Latine word Demorari to abide and therefore he who demurreth in Law is said he that abideth in Law moratur or demoratur in Lege when so ever the Counsell of the party is of opinion that the Declaration or Plea of the adverse party is insufficient in Law then he demurreth or abideth in Law and referreth the same to the Judgment of the Court. Now there is no Demurrer in Law but when it is joyned and therefore when a Demurrer is offered by the one party as is aforesaid the adverse party joyneth with him and thereupon the Demurrer is said to be joyned and then the case is by Councell of both sides argued When the Declaration Answer Replication c. are defective in respect of some circumstance of time or place c. it may be remedied by consent of the Court or parties or by a motion to the Steward Non sum informatus is a formall answer of course made by an Attorney whereby he is deemed to leave his Clyent undefended and Judgment passeth for the adverse party It is a failing to put in answer to the Declaration of the Plaintiff in any Action by the day assigned which if a man do Judgment shall passe against him because he saith nothing to the contrary To an Action of Debt upon Specialty Not his Deed To an Action of Debt for mony lent c. He owes nothing by the Country To a Bond for performance of Covenants upon an Indenture or Arbitrament Not his Deed or not guilty To an Action of case upon an Assumpsit He did not assume To an Action of Trespasse Not guilty To an Action of Assault and Battery and Slander Not guilty To a Contract without Deed the Plea is Payment or an Obligation made for the debt c. To an Obligation the Plea is Payment c. but to plead payment to an Obligation without Acquittance is no Plea For an Obligation or other matter in writing may not be discharged by any agreement by word but by writing unumquodque dissolvitur eo modo quo colligatur But to plea d payment to an Obligation with Condition though no Acquittance by writing it is good for the Condition is in nature of a Defeasance to the Obligation To an Action of debt He owes nothing by the Country or by the Law or Paid If the Action be brought against an Executor or Administrator the ordinary Plea is that he never was Executor or hath fully Administred c. If the Suit be upon a Deed or Contract without Deed That he was within age when he made the Deed or Contract If it be against a woman That she was Covert that is to say had a Husband when she made the Deed or Contract If upon an Arbitrament That there was no Arbitrament legally made or That he hath performed the Award If upon an Action of Trespasse Damage feasant That the Beasts came in by the default of the inclosure of the Plaintiff or That he hath little of Common there c If upon an Action brought for Rent That there is no rent in arrear c. To an Action of Detinue That he doth not detain the thing sued for A release or gift to him by the Plaintiff or That he did tender the thing sued for before Action brought That the De-fendant did deliver it to him as Pledge for ten shillings which he hath not paid c. To an Action of the case for Slander Not guilty or Justifie the words Cafe upon a Warranty That he did not warrant Upon a Bond or Bill plead Conditions performed by Threats Duresse Imprisonment c. Upon a Demise Not demised To Trespass Not guilty an Arbitrament Tender of amends before the Action brought c. If diverse men do a Trespasse and one makes a good accord this will discharge and be a Bar to all the rest Co. 9. 79. If Freehold be pleaded the Court in that case can proceed no further There are divers Pleas to Actions of Trespass some of one nature and some of another as justification c. If the Defendant have matter of Justification or excuse to plead he must be sure to plead it specially for if he plead the generall Issue viz. Not guilty it will be found against him But now by the late Act made the 23 of October 1650. The Defendant may plead the generall Issue of Not guilty or such like generall Plea and give the speciall matter in Evidence Where the Defendant is not constrained to plead a speciall Plea he may plead the generall Issue proper for the Action brought and give the speciall matter in Evidence For every Plea must be so framed that it may give a full answer to the matter set forth in the Declaration to wit all such as are materially to be answered unto If one be sued upon an Obligation he cannot be compelled to plead before he have Oyer of the Condition of the Obligation If an Action of Debt be brought for Rent upon an Indenture of Demise for years the Defendant may plead payment without shewing the Deeds for the Lease shall be intended to be in being at the time of the Action brought Trin. 24. Car. B. R. If an Obligation of an hundred pounds be made with Condition for payment of fifty pounds at a day and at the
Eliz. Co. B. adjudged If a Beast be unruly in the pound and is like to leap over the pound it seemes the distrainer cannot justifie the tying him to the pound nor the fettering of him Broo. Trespasse 250. 27 Ass pl. 64. None shall distrain wrongfully upon the penalties provided upon the Statute of Marlb West 1. 16. 3 E. 1. None shall procure any to distrain another to make him appear at the County Court or any other inferiour Court on purpose to vex him and put him to charge and trouble on pain to make Fine to the Lord Protector and to pay the party grieved trebble damages West 1. 36. 13. E. 1. An Axe that is in a mans hand cutting of wood nor goods that are impounded and in the custody of the Law cannot be distrained being distrained already Damage-feasant If one distrain my Cattell or Goods without any cause or colour that is not good and just or if a man having distrained my goods will not tell me requiring it and offering to give satisfaction for what cause he distrained them or if having cause to distrain he do distrain Beasts not distrainable as Beasts of the Plough or Sheep or if having distrained Beasts distrainable he afterward abuse them as if being a Horse or an Oxe he work it or being unruly he setter it or lay it so as it be thereby hurt or if he put the Distresse in an unknown place that I cannot tell how to come to it to feed it or if he take them out of the County and put them into a Pound in another County or if he distrain them in a place not distrainable In all these cases I may have an Action of Trespasse against him Co. 8. 147. Doct. St. 112. F. N. B. 47. What goods may be taken upon an Execution EXecution is a Judiciall Precept issuing out after Judgment properly called a Fieri facias and lyeth where a man hath recovered in any Action lying in this Court either by default or Verdict then he that hath recovered may have this Precept commanding the Bayliff to levy the monies so recovered of the Goods and Chattells of the Defendant and to bring it into the Court that the party Plaintiff may have it The Bailiff may by vertue of this precept or warrant after Judgement distraine the Defendants goods and detaine the distresse in his hands in safegard till the Defendant hath satisfied the Plaintiff of the condemnation 22 Ass 72. F. N. B. 165. and 4 H. 6. fol. 17. Action The Bailiff upon this precept is to do his utmost endeavour to levy the Money upon the Goods and Chattels of the Defendant and for that purpose to enquire and search if he can finde out any Goods and Chattels of his whereof Execution may be made and it will be wisedome in the Plaintiff to make a diligent search to see if he can finde out any thing to be taken hold of and if he can discover any to direct the Bayliff to it who ex officio is to take it and to sell it and if he cannot sell it he is to return it so and thereupon a Precept called a Venditioni exponas shall be sent to the Bayliff to force him to sell it and pay the Plaintiff Goods taken in Execution must be praised and Execution made of them 27. Ass 72. Where erroneous Judgment is given the Officer which doth the Execution is excused 22. Ass 64. Plowden 194. But the contray if Judgment be given that is void or voidable for where Judgment and Execution is of a thing whereof they have no Jurisdiction there Trespasse lyes against the Officer for executing it but if Judgment be there but erroneous and so void false Judgment lyes and no Trespasse against the Officers Plowdens com 394. If after Judgment a man doth sell his goods to defraud me of my Execution and neverthelesse taketh the profits of them if it be so found I may have Execution of the goods sold by fraud 43 E. 3. fo 2. 22. Ass 72. 50 E. 3. If the Bayliff hath a Fieri facias against a man and before Execution he payeth the mony in this case he cannot do Execution after if he do an Action of Trespasse lyeth against him B. R. pach 12 Car. If the Sheriff open or break any House to do Execution at the Suit of a common person the Execution is good but the party whose House is broken may have an Action of Trespasse against him for the breaking of the House Co. 5. 93. 3. If the Sheriff levy mony upon an Execution and giveth it to the Plaintiff though he never make any return to the Court it is good enough Co. 5. 90. 4. 67. 11. 40. 20 H. 6. 24. 4. If a man hath a Judgment in this Court against the Plaintiff or the Defendant and the Execution is deferred in favour of him the party grieved may have a Writ de executione Judicii from above to hasten it F. N. B. 120. This Writ de executione Judicii is directed to the Sheriff in whose county the execution ought to be done if he will not doe Execution the Complainant shall have an Alias and a Plures with this clause in the Writ of Plures or signifie unto us the cause why c. And if he do not Execution upon this Writ or return not some reasonable cause wherefore he delayes the Execution the party shall have an Attachment against the Sheriff returnable into the Upper Bench or Common Pleas and must be directed to the Coroners returnable as abovesaid to answer c. Goods pawned shall not be taken upon Execution for the debt of him who pawned them during the time they are pawned 24 H. 8. Pledg 28. 4 E. 6. Distresse 75. By Fieri facias or Levari faoias the Bayliff cannot break the door or chest to take goods in Execution for if he do Trespasse lyes against him for the breaking onely and not for taking the goods in Execution 18 E. 4. fo 4. 13 E. 4. fo 9. by Choke notwithstanding 8 E. 2. tit Executors 152. to the contrary If a man letteth to farm by the year Oxen or Cattel and after the Lessee for years is condemned in an Action of debt these Cattell and Oxen demised during the term cannot nor shall not be taken in Execution for this debt 22 E. 4. fo 10. A Bayliff cannot pull the latch to open the door if it be shut to make a Distresse Co. 5. 91. 93. Dyer 67. 224. But if the out door of the House be open the Sheriff may go into the House and take any thing these lyable to Execution and being come in at the open door it seemes he may break open any of the inner doors 18 E. 4. 4. Co. 5. 90. Co. 4. 74. Of the Replevin CAttell being distrained for Rent Damage-feasant c. the Owner of the Cattell must goe to the County Clark or some one of the Deputies appointed in the County for the
granting out Replevins to have a Replevin directed to the Bayliffs to Replevie them and the party must be bound in an Obligation to the Sheriff to prosecute his Action against him or them that did take the Cattell and to make return of the same Cattell to the Distrainer if he by Justification or Avowry do recover And if he pursue it not or if it be found or judged against him then he that took the Distresse shall have again the Distresse and that is called the return of the Beasts and he shall have in such case a Writ from above de Returno habendo This Replevin may be returned out of the County into the Common Pleas by a Writ of Recordare If the goods cannot be taken by the first Replevin then issueth forth an Alias then a Plures then a Toties quoties and if none of these will do then a Withernam The suing of a Withernam is after this manner If the Bayliff return at the next County upon the Toties quoties that he cannot Replevie the Cattell because they are esloyned or that he cannot have view of the Cattell then the Sheriff ought to make inquirie if it be true which is returned and if it be so sound out he shall make a Precept to the Bayliff in the nature of a Withernam to take as many Cattell of the other party And if the Bayliff upon the Withernam thus awarded return that the other party hath not any thing c. he shall have an Alias and Plures and so ad infinitum and hath no other remedy in this Court Note that Cattell taken in Withernam ad valentiam that is to the value of the Cattell that were first distrained and so detained that the Sheriff cannot execute the Replevin brought for them is to be understood not of the number of the Cattell first distrained but according to their full worth and value For otherwise he that bringeth the Replevin and Withernam will he deprived of his satisfaction he ought to have in case the Distresse were not lawfully taken But now to return again to the Replevin if the thing distrained be put by the Distrainer in a place where the Sheriff cannot come at them to make a Replevie he may take Posse comitatus viz. the power of the County and after demand of the Chattels he may beat down the door or place where they are to take them and the Owner of the goods shall recover double for his losse what ever it be The Sheriff upon complaint made to him upon taking of Cattell may command his Bayliff by word to make a Replevin of them and it is as good as though he had made his Precept to the Bayliff Fitz. 6. 9. He that hath the Replevin must have either a generall or speciall property in the thing as of goods pledged or the like and it must be in him at the time of the taking or otherwise he cannot have or maintain the Replevin for them Diverse mens Cattell being taken they may not joyn in one Replevin but must have severall Replevins A Replevin ought to be certain in setting forth the number and kinds of the Cattell distrained otherwise it is not good because if it be not certain the Sheriff cannot tell how to make deliverance of the Cattell because he knows not particularly what the Cattell are that were distrained Trin. 23. Car. B. R. If a man taketh and impoundeth goods a Replevin may be of more Cattell than were impounded for if a man distrain Cows or Ewes c. and they have in that Pound Calves or Lambs the Plaintiff shall have a Replevin for them all and by Lit. it was adjudged Mich. 8. E. 3. That if a man distraineth and impoundeth a Sow great with pigs in the Pound the Owner shall have a Replevin for the Sow and the Pigs If Cattell be distrained and a Replevin is sued the Defendant doth avow for taking of them Damage-feasant or for Rents Customs and Services and are at issue and after the Plaintiff is non-suit or otherwise barred he shall lose his costs and damages by the stat of 7 H. 6. cap. 5. but by the stat 21 H. 8. it is clear Pasch 14. Mar. Dyer 141. If a man by his Deed grant a Rent with clause of Distresse and grant further that he shall keep the goods distrained against Gages and Pledges untill the rent be paid yet shall the Sheriff replevie the goods distrained for it is against the nature of such a Distresse to be irrepleviable and by such an intention the current of Replevins should be overthrown to the hindrance of the Common wealth 31 E. 3. Gage deliver 5. Co. Inst 1. fo 145. b. If in this case the taker of the Cattell justifie the taking as in his Freehold then this Court can proceed no further therein but the cause must be removed by a Writ out of the Chancery called a Recordare facias loquelam directed to the Sheriff returnable the next term following either into the Court of upper Bench or Common Pleas to which the party pleaseth but they are more properly belonging to the Court of Common Pleas and this Writ must be openly read and allowed in the same Court to the end that notice may be given thereof to the Plaintiff in the Replevin that he may appear at the day of the return thereof and declare against the taker of his Cattell otherwise the taker will have a retur habend aver and put him to sue forth the second deliverance which is a great disadvantage to the Plaintiff If a Replevin be sued out and the Defendant doth avow for taking of them Damage-feasant or for rents customs or services and are at issue and after the Plaintiff is Non-suit or otherwise barred he shall lose his costs and damages Stat. 7 H. 6. cap. 5. 21 H. 8. Pasc 4. Maria Dyer 141. Of the Processe of this Court THe Process of this Court are either originall issuing out before Judgment Or Judiciall issuing out after Judgment Originall is a Distringas or County Warrant c. Judiciall Process is onely a Fieri facias or Execution directed to the Bayliff to levy the debt or damages and cost of Suit recovered of the goods of the Desendant or of the Plaintiff if he be non-suited The Originall Processe viz. Distringas or County Warrant is a Precept issuing out for a debt under forty shillings It s form is as followeth Y. ss I. B. Esq Sheriff of the said County to all and singular my Bayliffs within the said County and their Deputies greeting Commanding you and every of you that you distrain R. B. by his goods and chattels within the said County so that he be and appear at the next County Court to be holden at the Castle of Y. on munday the 10 of J. to answer unto S. D. in an Action of debt And that you then and there certifie your doings herein Sealed with the Seal of my Office the sixteenth
chattels which late were W. W. deceased at the time of his death and now remaining in the hands of I. W. Executor of the Testament of the said W. W. and not administred of as well a certain debt of 40 l. which T. L. in my County Court by vertue of a Writ of Justicies recovered against him as also 20 s. which to the said T. L. in the same Court was adjudged for his costs and damages which he sustained by reason of the detaining of the said debt If the said I. W. Executor of the Testament of the said W. W. have so much goods or chattels in his hand which were the said W. W. at the time of his death sufficient to satisfie the debt and damages aforesaid If he have not so much goods or chattels in his hands which were the said W. W. at the time of his death sufficient to satisfie the said T. L. of the debt and damages aforesaid That then you or some of you levy of the proper goods and chattels of the said I. W. the damages and costs aforesaid so that I may have the said mony at my next County Court to be holden at the Castle of Y. c. to render to the said T. L. the debt and damages aforesaid whereof he is convict And this given under the Seal of my Office the c. I. B. Esq c. to all and singular my Bayliffs c. greeting I command you and every of you that of the goods and chattels of T. O. you levy 20 s. which S. D. in the County Court according to a Statute provided in that case were adjudged for his costs and damages which he sustained in his own defence in a certain Plea of debt which the said S. D. against the said T O. of late brought because the said T. O. did not prosecute his Suit but was thereupon non-suited and convicted so that I may have the mony at my next County Court at the Castle of Y. holden on Munday c. next to satisfie the aforesaid S. D. of his costs and damages aforesaid And this c. Given under the Seal of my Office the c. I. B. Esq c. to all c. greeting I command you that of the goods and chattels of T. C. you levy 40 s. which to P. P. in my County Court were adjudged for his damages which he sustained in his own defence in a Plea of debt by the said W. against him the said P. P. lately brought whereof the said P. P. was quieted and by Verdict of his Country whereof the said T. C. was convict have you the mony at my next County Court to be holden at the Castle of Y. on Munday c. to satisfie the said P. P. of his damages aforesaid And this c. given under the seal of my office c. I. B. Esq c. to all c. greeting I command you and every of you joyntly and severally that of the goods and chattels which late were of E. S. Esq who dyed intestate as it is said and now in the hands of R. M. Gent. and A. his wife Administratrix of the goods and chattels which were the said E. S. at the time of his death remaining to be administred you cause to be made as well a certain debt of 4 l. which I. W. hath recovered against the said E. S. in my County Court as 30 s. which to him the said I. W. in my same Court were adjudged for his costs and damages which he had by occasion of detaining of the same debt by vertue of a Writ of Justices so that I may have the said mony at my next County Court to be holden at the Castle of Y. c. to render the aforesaid I. W. of the debt and damages aforesaid whereof the aforesaid E. S. was convict And whereupon it was considered in my same Court that the aforesaid I. W. should have Execution against the aforesaid R. M. c. of the debt and damages aforesaid of the goods and chattels aforesaid by his the said R. M. his default And this given under the seal of my office the c. I. B. Esq c. to all singular my Bayliffs c. greeting I command you and every one of you joyntly and severally especiall to F. P. Bayliff of the Liberty of S. and his Deputies who hath the goods taken upon an Execution issuing out of this Court that those twenty weather Sheep of which each you cause to be apprised at eight shillings of the goods of I. C. Esq which you took and remain in your hands unsold for want of buyers as you your self returned to my Court you expose to sale and the mony thereof which in the whole amounts to eight pounds you have at my next County Court at the Castle of Y. holden on Munday the tenth day of May next to render to W. G. which to him the said W. G. in my Court were adjudged for his damages which he had by occasion of a certain Trespasse to him committed by the aforesaid I. C brought whereof he is convict And this given under the Seal of my Office the 18 day of October in the year of our Lord 1657. By the Sheriff Of a Scire Facias IF a Fieri facias do not issue out within a year and a day after Judgment entered it cannot be had till there be a Scire facias first sued out to summon the Defendant to shew cause why Execution should not be done and if now he neglect to answer or cannot be found to be summoned then a second Judgment shall be given that that Execution be done of the first Judgment If Judgment be given against a Testator albeit it be within a year after Judgment had yet there must first issue out a Scire facias against the Executor or Administrator before Execution to shew cause why it should not be had Or if a man recover against a Feme-sole and she become covert viz. take a Husband within the year and the day then he that shall recover must have a Scire facias against the Husband Scire facias post diem annum I. B. Esq Sheriff c. greeting Whereas W. F. of late in the Court of the aforesaid County by Judgment in the said Court of the County aforesaid held at the Castle of X on Munday the tenth day of February 1654. before the Suitors of the said Court recovered against G. L. as well a certain debt of thirty two shillings which the said W. F. in the same Court recovered against him as thirteen shillings and ten pence which to the said W. F. in the same Court were adjudged for his damages which he sustained by the occasion of the detaining of the debt of which he is convicted for as by the proceedings from thence in the same Court residing notwithstanding the manifest Execution of the aforesaid Judgment remains to be done as by
insinuation the aforesaid W. F. hath recovered And because that I will that those things which were in the said Court be rightly done to demand due of the said Iudgment Therefore I command you that by honest and lawfull men of my Bayliwick you give notice to the aforesaid G. L. that he be at the Castle of Y. at my next County Court there to be holden upon Munday the third day of May next to shew if he have any thing to say or no why the said W. F. ought not to have his Levy or Execution against him according to the force form and effect of the said Recovery if it seem expedient to him and have you then and there the names of them by whom you give him notice and have this Precept c. Given under the Seal of my Office the fourth day of Aprill in the year of our Lord 1656. Scire facias against an Executor after Judgment against the Testator I. B. Esq Sheriff c. greeting Whereas N. N. late in the County Court of the said County held at the Castle of Y. on Munday c. before the then Sheriff of the said County by Iudgment of the said Court had recovered against H. N. as well a debt of forty pounds as two and twenty shillings and two pence costs for his damages which he sustained by reason of the detaining of the said debt whereof he is convict as appears by the Proceedings remaining in the said Court And whereas the Execution of the Judgment yet remaineth to be done and the said H. N. since the giving of the Judgment aforesaid is dead as by the intimation of the said N. N. I am informed And because I am willing that those things which are rightly done in the said Court should be duly put in Execution I command you that by honest and lawfull men of the said County you make it known to F. N. Executrix of the Testament of the said H. N. that she be at the next County Court to be holden for the said County at the Castle of Y. on Munday c. to shew if she have any thing or know what to say why the said N. N. ought not to have his Execution against her of the debt and damages aforesaid to be levied of the Goods and Chattels which were of the said H. N. at the time of his death and further to do and recieve c. Given under the Seal of my Office c. Scire facias after marriage I B. Esq Sheriff c. greeting Whereas A. B. late in my County Court held at the Castle c. before the Suitors of the said Court had recovered against C. D. as well a certain debt of forty pounds as forty shillings which to the said A. B. in the said Court were adjudged for the costs and damages which she had by occasion of the detaining of the debt whereof he is convicted as by the Proceedings thereof in the same Court before the said Suitors remaining manifestly appeareth Neverthelesse Execution of the said Judgment remaineth yet undone And the said A. B. since the Judgment aforesaid given hath taken to Husband T. R. as by the allegation of the said A. B. I am given to understand and because I will that those things which are rightly acted in my said Court be duly put in Execution I command you that by honest and lawfull men of your Bailiwick you give notice and make known to the said C. D. that he be at my next County Court holden at c. to shew that if he hath or knoweth any thing to say or no for himself wherefore the said T. R. should not have execution of the said judgement of the debt and damages aforesaid according to the form and effect of the recovery aforesaid if to him it shall seem expedient and have you there the names of them by whom you give him notice and make known to him and have this precept c. Given under the seal of my Office the 4. day of Iune in the year of our Lord 1658. Venire facias Jurator I. B. Esquire Sheriff of the County aforesaid to the Bayliff of the hundred of O or his Deputy greeting I command you and every of you that you cause to come before me or my lawfull Steward by me appointed for the County Court to be holden at the Castle of Y. on Monday the c All those severall persons mentioned in the pannel hereunto annexed to trie such several issues between party and party as shall then and there be given them in charge And hereof you must not fail as each of you will answer the contrary at your perils together with this precept Given under the seal of my Office c. Or thus I. B. Esquire c. These are to require you the said Bailiff to cause to come twelve good and lawfull men of your Bailiwick that they be and appear at the next County Court holden at the castle of Y. on Monday c. by 9 of the clock in the forenoon to trie an issue joined between A. B. plaintiff and C. D. desendant concerning a plea of debt or as the case is And this given under the seal of my Office c. And if a full Iury do not appear then as many as make default shall be amerced and a Decem tales awarded to summon ten more as followeth and the same day given to the first Iury. Decem tales I. B. Esq c. These are to require you the said Bayliss to cause to come ten more good and lawfull men of your Bayliwick that they be here at the next County Court holden at the Castle of Y. on Munday c. with others which to them shall be adjoyned to try a certain Issue joyned between A. B. Plaintiff and C. D. Defendant of a Plea of Debt c. And as many of these as make default shall be amerced and then an Octo tales shall be awarded and if necessity require it afterwards a Sex tales Subpoena or a Warrant to summon Witnesses I. B. Esq Sheriff of the County aforesaid to I. B. I. G. c. greeting To you and every of you I command that all excuses and delayes being set apart you and every of you be and personally appear at the next County Court holden at the Castle of Y. on Munday the 10. day of Iune next to testifie the truth according to your knowledge in a certain Action there depending between A. B. Plaintiff and C. D. Defendant on the part and behalf of the Plaintiff in an Action of debt And hereof fail you not under the forseiture of one hundred pounds each of you And this given under the Seal of my Office the c. A Liberate to deliver goods taken upon Originall or mean Processe I. B. Esq Sheriff of the County aforesaid To all and singular my Bayliffs within the said County and their Deputies especially to A. B. greeting For as much
Scire facias 00-02-00 Tolt 00-01-02 Precept upon an accedas ad curiam 00-02-04 Supersedeas 00-02-04 Procedendo 00-02-00 Warrant of Attorney upon every Distringas 00-00-02 Warrant of Attorney upon a Iusticies 00-00-04 Entring Essoynes for every name 00-00-04 Entring Imparlance 00-01-00 Copying the Declaration 00-01-00 Allowing the answer 00-01-00 Copying the answer 00-01-00 Allowing the Replication 00-01-00 And for copying the Replication and allowing the Rejoynder c. and so of the rest 00-02-00 Entring a Rule 00-00-04 Entring a Default by Nihil dicit 00-00-04 Entring a Non-suit 00-00-04 Dividing a Plaint for every name 00-00-04 Entring Judgment 00-02-00 Transcript upon a Plaint 00-01-08 Transcript upon a Writ of Iusticies 00-03-04 Allowing a Recordare 00-04-00 Allowing a Pone 00-04-10 Allowing a Writ of False Iudgment 00-06-08 Fees to the Attorney FOr drawing every Declaration 00-01-00 Drawing every answer 00-01-00 Drawing the Replication 00-01-00 Drawing Rejoynder 00-01-00 Drawing Sur-rejoynder 00-01-00 For every Court day wherein he proceeds in the Action allowed as his Fee 00-02-00 Fees to the Bayliff for executing of Processe FOr executing a Distringas of the Plaintiff 00-00-04 and of the Defendant 00 00-08 A Duces tecum of the Plaintiff 00 00-04 And of the Defendant 00-00-08 A Iusticies of the Plaintiff 00-01-00 and of the Defendant 00-02-00 A Replevin of the Plaintiff 00-02-00 A Venire facias 00-02-00 If tried for the Habeas corpora 00-02-00 A Fieri facias 00-02-00 A Scire facias 00-02-00 The Order of the Judges of Assize at York the 24. day of July 1654. concerning Essoins illegally returned into this Court. WHereas of late Judgements have been surreptitiously obtained in this Court by reason of Essoins unduly brought into the Court by Bailiffs or their Deputies and others after attachment of goods for appearance which pretended Essoins being afterwards disavowed by the defendant have occasioned sundry complaints and suits when the defendants goods were taken in execution for preventing whereof it is ordered upon advice and consultation had with the Judges of Assize at Y this day that henceforth no common Essoin shal be entred and allowed by the Court to save a default unlesse it be warranted in writing under the proper hand-writing or under the hand seal or mark of the defendant thereby specially authorizing the party being the Essoiner to cast such Essoin for him and in his name for the truth of which subscription or sealing the same Essoin is to be sworn in open Court and no Essoin is to be admitted or received from henceforth being not affirmed and sworn unto and so entred upon the back of the warrant of attachment which is to remain upon the file amongst the Rolls or proceedings of the Courr and if any other person not being a Bailiff shall be the Essoiner he is to bring the like warrant from the Defendant in writing as is aforesaid and be sworn for the truth thereof which is to remain in Court as aforesaid And no jugdement shall be given where there is no other appearance but an essoin Unlesse the Essoin shall appear to be warranted as aforesaid To swear to warrant Essoyns in this Court is contrary to the Statute of Marlbridge cap. 19. which saith De essoniis autem provisum est quod in Com. c. nullus habeat necesse jurare pro Essonio suo warrantizand Of the nature and Return of those Writs that do remove actions out of this Court into superiour Courts WRits removing suits out of this Court may be without shewing cause in the writ if the remove be by the Plaintiff but not without shewing good cause if it be by the Defendant As that the suit is for Charters of land or for inheritance or for freehold of Land or any titles of Land or actions touching life or actions to cause one to render an accompt or trespass vi armis all which are not within the cognizance of the Court. Or that he before whom the action depends is a favourer of him that is on the other side or that the Defendant avoweth for damage feasant and the Plaintiff doth justifie for common of pasture which is a plea touching Freehold and thrrefore the prosecution in this Court ceaseth First of a Recordare facias loquelam A Recordare is a writ issuing out of the Chancery directed to the Sheriff commanding him to send a plaint that is before him in his County Court without writ of Iusticies into the Court of Vpper Bench or Common Pleas to the end that the cause may be there determined And the Shiriff is hereupon to summon the other party to be in that Court into which the Plaint is to be sent at a day certain And of all this he is to make a certificate under his own Seal and the Seals of four Suitors of the same Court By vertue of this Writ to me directed at my County of Y. held at the Castle of Y. within written such a day and year to be Recorded I caused the Plea of which within is made mention which appears in a Schedule to this Writ annexed and that Record I have before the Iustices within written at the day and place within contained under my Seal and the Seals of W. H. E. R. c. four good and legall Knights of the same County of them who at the Record present were and to the parties within written that day I have prefixed that then they be there in that Plea as just it may be to prosecute as within to me is commanded The residue of the Execution of this Writ appears in a certain Schedule to this Writ annexed At my County Court held at the Castle of Y. in the County aforesaid such day and year before I. R. M. L. I. S. and S. D. four Suitors of the said Court amongst other matters is contained R. S. complaineth against B. W. of a Plea of debt or as the case requires I. B. Esq Sheriff pledg of prosec I. S. I. D. In testimony of c. By vertue of this Writ to be recorded I have caused the Plea which is in my County without Writ of Oliver Lord Protector c. betwixt A. B. and C. D. concerning the Beasts of him the said A. B. taken and unjustly detained as it is said and that Record I have before the Justices within written at the day and place within contained under my seal and the seals of E. B. S. D. R. B and I. L. four legall Knights of my County of those who at the Record present were as it appeareth in a certain Schedule to this Writ annexed according to the Exigency of this Writ At my County held c as before By vertue of this Writ in form within written I came to the Court within written and in that full Court to be recorded caused the plea within written and that Record as it appeareth in a Schedule to this Writ annexed I have before the Justices within written at
D. did Essoin because he could not come until the next County Court to be holden at the Castle aforesaid at which said next Court viz. on Monday the 10 day of October then next following in the year abovesaid came the aforesaid A. B. by his Attorney aforesaid and offered himself against the said C. D. in the plaint aforesaid and the said C. D. then and there came in his proper person to answer the aforesaid A. B. in the plaint aforesaid and put in his place I. R. his Attorney against the said A. B. in the plaint aforesaid and by his said Attorney desired of the said Court that the said A. B. should declare against him upon his said plaint and thereupon the said A. B. by his Attorney aforesaid declared against the said C. D. upon the plaint aforesaid in manner and form following A. B. By vertue of a writ of Iusticies by S. D. his Attorney complains of C. D. of an action of trespasse and assault for that the said C. D. the 10. day of October in the year c. at the Castle c. in and upon the aforesaid A. B. did make an assault and affray and him did beat wound and evil intreat so that he did despair of his life and other harms did do unto him to the great damage of the said A. B. wherefore the said A. B. saith he is damnified to the value of 20 l. and thereupon brings this action c. Whereupon at the same Court at the request of the Defendant day was given to the said parties in the plaint aforesaid till the next county Court to be holden before the suitors aforesaid on Monday the 15. day of November then next following saving to the Defendant c. at which day at the said Court before the suitors aforesaid holden at the Castle of Y. aforesaid came aswell the said A. B. by his Attorney aforesaid as the said C. D. by his Attorney aforesaid and then and there the said I. B. Esquire was removed from the office of Sheriff of the County aforesaid and R. L. Esquire was duly elected and did enter into the said office of Sheriff of the County of Y. aforesaid whereupon at the same Court at the request of the parties further day was given to the said parties in the plaint aforesaid until the next County Court on Monday the 13. day of December then next following in the year abovesaid to be holden before the suitors aforesaid saving to the parties c. at which day at the said Court before the suitors aforesaid holden at the Castle aforesaid came aswell the said A. B. by his said Attorney as the said C. D. by his Attorney aforesaid And the said C. D. by his Attoruey aforesaid came and defended the injury when c. And the said Attorney said that he was not informed by his said Clyent of any answer for him the said C. D. to the said A. B. in the plaint aforesaid to be given whereby the said A. B. did remain against the said C. D. thereupon without defence for which the said A. B. ought to recover against the said C. D. his damages by occasion of the trespasse and assault and wounding aforesaid but because it was not known to the Court what damages the said A. B. had sustained by reason of the premises therefore at the next County Court holden at the Castle of Y. aforesaid in the County aforesaid before the Suitors aforesaid upon Monday the 10. day of Ianuary then next following in the year aforesaid it was required by the oaths of I. W. R. S. S. G. M. L. T. P. c. twelve good and lawfull men of the County aforesaid being present in the Court and in the full County sworn to inquire what damages the said A. B. sustained by occasion of the trespass assault wounding say upon their oaths that the said A. B. hath sustained damages by occasion of the trespass assault and wounding to ten pounds and for his costs and charges by him in that behalfe expended to two pence therefore it was considered by the said Court that the said A. B. should recover against the said C. D. his damages and costs aforesaid by the Jurors aforesaid in form aforesaid assessed and also forty shillings by the Court aforesaid to the said A. B. by his assent for increase of costs to him adjudged which said damages and costs do amount to twelve pounds and two pence And the said C. D. in mercy c. In testimony whereof c. The nature of an Accedeas ad curiam THis Writ issues out of the Chancery directed to the Sheriff commanding him to go to such a Court of some Lord or Franchife as Court-Baron or the like being no Court of Record where a Plaint is sued or a false judgement is supposed to be given in some suit which hath been in the Court and by this the Sheriff is there to make Record of the same suit in the presence of the Suitors of the same Court and four lawfull men of the County and of this he is to make a Certificate into the Court above under his seal and the seals of four of the Suitors of the same Court at the day appointed by the writ F. N. B. 71. Plowden 74. Finch 444. This Writ cannot be had without shewing some special cause for the removing of it as that a Freehold is in question there or some forreign plea is pleaded not triable in that Court or such like F. N. B. 70. 119. The County Clerk is to make a precept upon the Writ in this manner Yo ss I. B. Esquire Sheriff of the County of Y. To the Steward and Bailiff of the Court of the Honour of P. greeting I command you by vertue of a Writ to me directed that you take with you four discreet and lawfull Freeholders of the County aforesaid and that you go to the Court aforesaid and in full Court there cause the Plaint to be recorded which is in the same Court without Writ between R S. and G. M. of a certain trespasse upon the case brought by the said R. S. against the said G. M. as is aforesaid And that you certifie the Record to me so that I may have the same before the Justices of the Common Bench at Westminster from the day of the holy Trinity in fifteen days under your seals and the seals of four lawful men of the said Court of those that shall be present at the Record and that you prefix the same day to the parties that then they be there ready to proceed in the said plaint as shall be just and have you the names of the said four men and this Precept fail not hereof c. Given under the Seal of my Office this second day of Iune in the year of our Lord 1656. By the Sheriff Honour of P. ss The Court Baron of G. S. I. K. c. holden at
facias is onely against the goods as Leases for years or moveable goods as Corn Houshold stuffe Cattle Apparrel Money Plate c. and it ought to be sued out within the year after the Judgement Co. 3. 13. After a Fi. fa. a man may have an Elegit but on the contrary after the Elegit he cannot have a Fi. fa. because the Elegit is of a higher nature then the Fieri facias An Elegit is a Writ whereby the Plaintiff is to have Execution of the half of all the Defendants lands and chattels except Oxen and beasts of the Plough till the debt and damages be wholly levied and paid to him and during the term he is tenant by Elegit Terms of the Law The Proceedings upon the Writ of False Judgement YOu must call of the County Clerk for a return of the Writ together with the whole Record of all the proceedings from the original and beginning of the cause in the County Court The Writ being returned you must assign Errors and take Copies thereof and thereupon sue forth a Scire facias to the Plaintiff in the Action to hear Errors To which the Plaintiff may appear and plead the common plea which is that The action nor proceedings in the County Court are in nothing erroneous Then must the Desendant endeavor to get a Rule or day given for the arguing of the same Errors But if the Defendant doth delay and doth not call for a return of the writ nor proceed then the Plaintiff may sue forth another Scire facias against the Defendant to shew cause why he should not have Execution upon the Judgement had in the County Court And if at the Return of the second Scire Facias Errors be not assigned then Judgment is confirmed in that Court into which the Writ is returnable If Errors be found and allowed to be sufficient and good then is the said Judgment to be reversed and made void But if Errors be not found good then is the Judgment in the County Court affirmed and further costs for delay of Execution allowed to the Plaintiff who may presently sue forth Execution out of that Court into which the Writ was returned against the Defendant Note that if the Judgment be reversed and made void yet notwithstanding it takes not away the Plaintiffs cause of action for he may commence a new action against the Desendant for the same cause The same proceedings are upon an Accedeas ad Curiam See the Record upon it The manner and form of drawing up Records upon a Writ of False Judgment and Accedeas ad Curiam THe Sheriff is commanded that if A. B. shall secure the same Sheriff to prosecute his plaint then in his full County he cause to be recorded the plaint which was in the same County by writ of his Highnesse the Lord Protector c. between W. B. and the same A. B. in a certain Trespasse upon the case to the same W. B. by the same A. B. done c. And whereupon the same A. B. did complain that False Judgment was done to him in the same County and that he should have here at this day that is to say Octab. pur under his Seal and by four lawfull Knights of the same County who should be present at the Record and that he should have here the Summoners the names of the four Knights this Writ and another Writ And now here at this day came aswell the same A. B. by Simon Dunn his Attorney as the said W. B. summoned c. by Phit Prince his Attorney And the Sheriff to wit Geo. Mar. Esquire now returneth that the same A. B. had found to the same Sheriff Pledges to prosecute his said Writ to wit Iohn Doo and Ric Roo And that he by vertue of that Writ to him directed at his County held at the Castle of York in the County asoresaid the 10. day of May in the year of our Lord 1657. made the same plaint to be recorded which was in the same County between the same A. B. and W. B. and the Record of the same plaint before the Justices here at this day under his seal and the seals of H. M. and four lawfull Knights of the same County hath ready of those who were present at the Record And that he summoned the same W. B. that he should be here at this day to hear the Record by R. S. and F. L. as by the same Writ to him it was commanded c. which said Record followeth in these words OLIVER Lord Protector c. To the Sheriff of York greeting W. B. hath requested that A. B. of C. in your County husbandman although the same W. B. be our true and faithfull subject and as our true and faithfull subject from the time of his nativity hitherto hath carried and behaved himselfe and of good name and same among many of our saithfull subjects was noted called and reputed notwithstanding the same A. B. not ignorant of the premisses the same W. B. unjustly to vex and him of his goods name fame and opinion whereof from his nativity to deprive conspurgate And the same W. B. into perturbation vexation and infamy amongst his neighbours and many other saithfull subjects and people of this Commonwealth to induce plain salse and scandalous words of the same W. B. at C. in the presence of many faithfull subjects and people of this Commonwealth said published and pronounced in these English words following to wit W. B. the same W. B. meaning hath stoln my horse By speaking publishing and pronouncing which same words the same W. B. not only in his good name and same is hurt but also in his doings and businesses with honest persons with whom the same W. B. in buying selling and lawfull bargaining before used is much prejudiced and made worse to the no little damage and losse of the same W. B. c. And therefore we command you that you hear the said Plaint and afterwards cause the same to be with-drawn that we hear no more clamour thereof for defect of Justice Witnesse c. Pleas held at the Castle of York in the County of York upon Monday the second day of June in the year of our Lord 1657. AT this Court W. B. complaineth of A. B. in a plea of Trespasse upon the case W. B. by P. P. his Attorney complaineth of A. B. in a plea of Trespasse upon the case for that to wit that whereas the same W. B. is a good true and faithfull subject of this Common-wealth of England from the time of his nativity hitherto hath carried and behaved himself and of good name same credit and reputation honestly with good and grave men as well his neighbours as other saithfull subjects of the said Cōmonwealth was had noted called and reputed without any falshood thest perjury selony deceit or stain of any other fault or hurtfull crime unspotted and untouched by the whole time aforesaid carried
that he is not guilty of the Trespasse aforesaid as the said J C. hath complained against him and of this he putteth himselfe upon the Countrey c. Bar by within-age ANd the said H C. comes and defends the injury when c. and saith that the said W B. his action aforesaid against him ought not to have for he saith that he at the time of the aforesaid writing obligatory was within the age of one and twenty years And this he is ready to verifie whereupon he demandeth judgement if the said W B. his action aforesaid against him ought to have c. Payment upon a Bill and a Release produced ANd the said I. S. comes and defends the injury when c. and saith that the said I W. ought not to have his action aforesaid against him the said I. S. for he saith that the said I W. after the making of the said Bill and the commencement of this suit that is to say the day year c at the Castle c. the said I W. did acknowledge and confesse himself to be fully satisfied and content of the said sum of 5 l in the said Bill mentioned and thereupon did acquit and release him the said I S. of and from all actions which the said I W. might have against him the aforesaid I S. by reason of the making of the aforesaid Bill and this he is ready to verifie whereupon he prayeth judgement if the said I VV. ought to have his action aforesaid against him c. Free-hlod ANd the said H S. comes and defends the sorce and injury when c. and saith that the said W B. his action aforesaid against him ought not to have or maintain because he saith that the Close aforesaid called T. at F. in the Declaration above mentioned in which the Trespasse aforesaid is supposed to be done is and at the time of the said trespasse supposed to be done is and was the onely sole free Tenement or Free-hold of the said H S. By reason whereof the said H S. did break and enter into the said Close called T. and the corn and grasse there growing and being with his feet did tread down and consume and other corne grasse and hay being in the said Close with his horses mares oxen and kine did eate tread down and consume continuing the said trespasse as in the Declaration is above specified as was lawfull and well pleased him so to do and this he is ready to verifie and prove whereupon he requires Judgement if the said W R. his Action aforesaid against him ought to have c. No action to cause one to render an account will lie in this Court ANd the said G F. in proper person comes and saith that the said C B. his said Action against the said G F. in this Court ought not to have or maintain for that the said C. B. in an Action to render an account c. wherefore the said G F. demandeth Judgement whether this Court will take cognizance of the said Action c. In arrest of Judgement AND the aforesaid R. M. saith that the verdict aforesaid given against him of the part of the said M S. ought not to stand or proceed because he saith that the Declaration aforesaid and the matter therein contained is not sufficient in Law to give and maintain the aforesaid Action against him by which he requires Judgement And that the aforesaid Plaint and verdict to be quashed and accounted nothing and that the aforesaid Plaintiffe may receive nothing by his Plaint and Verdict aforesaid c. Conditions performed AND the said W. G. cometh and defendeth the force and wrong when c. and desires to heare the said writing and it is read to him c. he desires also to heare the Condition of the said writing and it is read to him in these words that is to say The Condition of this Obligation c. recite the Condition which being read and heard the said W. G. saith that the said C G. his Action aforesaid against him ought not to have because he saith that the Articles in the Condition aforesaid above-mentioned were made at Y. aforesaid in c. day year c. aforesaid between the said C G. by the name of C G. of A. in the said County Gent. on the one party and the said W G. by the name of W G. of the same Town County Yeoman on the other party whose other part signed with the Seal of the said C G. the said W G. doth bring here in Court whose date is the same day and year first c. recite all the Articles throughout and the said W G. doth say that he hath performed and kept all and singular the Covenants Grants Articles Clauses Sentences and Agreements whatsoever in the said Articles specified on his part to be observed performed fulfilled and kept according to the form and effect of those Articles and this he is ready to maintain whereupon he prayes Judgements if the said C G. his action aforesaid against him ought to have c. Replication ANd the said C G. saith that he by any thing before aledged ought not to be debarred from having his said action against the said W G. because protesting that he the said W. G. hath not performed or kept any covenants grants articles clauses sentences or agreements in the said articles specified on his part to be performed or kept as the said W. G. above by pleading hath alledged for plea the said C G. saith that the said W G. did not c. recite the breach according to the form and effect of the same Articles and this he is ready to verifie whereupon he prayeth Judgment and his debt aforesaid together with his damages by occasion of detaining that debt to him to be adjudged c. Rejoynder ANd the said W G. saith that he did recite here that he did perform the breach the Plaintiff assigned according to the form and effect of thesaid Articles and of this he puts himselfe upon the Countrey and the said C G. likewise c. Detain he doth not ANd the said R. S. comes and defends the force and wrong when c. and saith he doth not detain from the said R. L. the chattels aforesaid nor any parcel thereof in manner as the said R. L. hath above declared against him and of this he putteth himselfe upon the Countrey c. Bar by a generall acquittance WHen c. his action ought not to have c. because he saith that after the making of the Writing aforesaid that is to say the day yeare c. the Plaintiff by his certain bill of acquittance which the said Defendant signed with the seal of the said Plaintiff here in Court produceth the date whereof is the same day and year he acquitted and discharged him the said Defendant by name of c. of all actions plaints demands debts accompts and debares for
aforesaid in their Demesne as ofsee Between which said Closes there is a certain hedge separating each from other the aforesaid Closes which said hedge the aforesaid D. and all they whose estate the same D. hath in the Close aforesaid from time out of minde were accustomed to make repaire and sustain and say that that hedge for want of reparation and sustaining of the same was at the time of the Trespasse aforesaid supposed to be made broken down and laid prostrate to the ground and that the Cattel of the said A. and B. in their Close aforesaid put to depasture into the said Close of the aforesaid D. by the breach and decay of the said hedge did enter against the will of them the said A. and B. and the grasse aforesaid did eat up tread down and consume the same A. and B. their Cattle aforesaid freshly pursuing into the said Close of the said D. by the breach and decay aforesaid did enter to drive backe their Cattle into the said Close of them the said A. and B. and into that Close speedily drove them as it was lawfull for them to do which is the same trespasse and breach of close and feeding treading downe and consuming the grasse aforesaid whereof the said D. above against them complaineth And this they are ready to averre c. whereupon c. The Defendant upon a Replevin avoweth the taking of the Cattle doing Damage Feasant ANd the said A. by c. cometh and defendeth the sorce and injury when c. and doth well avow the taking of the said Cowes in the said place in which c. and justly c. because he saith that he is seized and at the time of the said taking was seized in one Messuage and 12 acres of Meadow with the Appurtenances in the said Towne of S. whereof the place in which c. the said Cowes were taken as parcell in his Demesne as of Fee And for that he at the time of the said taking found the said Cows doing damage in the said place in which c. the said A. those Cowes in his ground and free-hold so doing damage took as to him it was lawfull And this he is ready to prove whereupon he prayeth judgement and the returne of the said Cattle c. Misnomer in the Writ of Justicies ANd hereupon comes Alvered Pease by W O. his Attorney and saith that he being by vertue of the said Writ of Iusticies summoned by the name of Abraham Pease neither is nor can be understood the same person against whom the said E. W. hath brought his Writ by the name of Abraham Pease For he saith that he is named called Alvered Pease and by the same name and sirname from the time of his nativity always known and called without that that he is named or called Abraham Pease or by the same name and sir-name was ever known or called as by the said Writ is supposed And this the said Alvered is ready to aver and prove whereupon he demandeth Judgement of the said Writ and that the same may be quashed c. Non cepit to a Replevin ANd the said B. by S. H. his Attorney cometh and defendeth the force and wrong when c. And saith that he did not take the Cattle aforesaid as the said A. above against him complaineth And of this he putteth himselfe upon the Countrey And the said A. likewise c. Property ANd the said B. by S. H. his Attorney cometh c. and saith that the property of the Cattle aforesaid at the supposed time of their taking was in the said B. and not in the said A. And this he is ready to prove whereupon he prayeth Judgement c. Demurrer to a Declaration ANd the said B. by C. D. his Attorney comes and desends the force and injury when c. And saith that the Declaration of the said P. and the matter therein contained are not sufficient in Law for the said P. to maintain his action aforesaid against him the said B. to be had And that he to that Declaration in manner and forme aforesaid made hath no need nor by the Law of the Land is bound to answer And for causes of Demurrer in Law in this behalse the said B. according to the forme of the Statute in this behalf provided doth shew to the Court these causes following That is to say that the said Declaration doth contain double and insufficient matter and wants forme and this he is ready to aver whence for default of a sufficient Declaration in this behalse the same B. prayeth Judgement and that the said P. may be barred of having his action against him c. Joyning in Demurrer ANd the said P. saith for that he above declaring hath in his said Declaration alleadged sufficient matter in Law to maintain his said Action to be had against the said B. which he is ready to aver which matter the said B. doth not gainsay nor thereunto at all answer but wholly refuseth to admit that averment prayes Judgement and his debt aforesaid together with damages by reason of the detaining of the said debt to him to be adjudged c. If it be in Trespasse then thus PRayes Judgement and his damages by reason of the sayd Trespasse or Trespasse and Assault or Trespass Assault and Imprisonment as the case is to him to be adjudged c. If in an Action upon the Case PRayes Judgement and his damages by the occasion before specified to him to be adjudged c. OF THE JUDICIAL AND MINISTERIAL POWER OF SHERIFS TO treat of the Originall or first Institution of Sheriffs in this Common-wealth is not here necessary being already done in the tract of the County Court or first part of this our subject matter Therefore we will initiate with the office of Sheriff in which office he hath triplicem custodiam a three-fold custody viz. 1 Custos vitae Reipublicae The Conservator of the life or peace of the Common-wealth 2 Custos vitae Iustitiae The preserver of the life of Justice for no Suit doth commence and no Processe is executed but by him 3 Custos vitae legis The Guardian or Tutor of the life of the Law for after tedious and long spun suits he is to make due execution which is the very life and spirit of the Law Now as he is Custos vitae Reipub. or Principalis conservator pacis within the County he hath a Judicial authority in the other two a Ministeral 1. And first to discover his Judiciall power And as he is a preserver of the peace he may ex officio upon request command and cause another to finde sureties of the Peace and may take the same sureties by Recognizance for all Obligations that he takes to that end are as Recognizances in Law And if he see one man assault another or if an assault be made upon himselfe he may compel them to finde sureties of the
and shall be levyed by the Sheriffe See Dalton fo 25. b. Hee is also accountable to his Highnesse for and upon processe c. and is to gather up and to bring into his Highnesses Exchequer all Amerciaments and Fines which shall be set or assessed as a penalty upon the heads of offenders against his Highnesse in any of his Courts VVhich is to be understood of Amerciaments upon the Paintiffe or Demandant or upon the Tenant or Defendant in Actions reall or personall as if the Plaintiffe and Demandant be Non-suite or if Judgement be given against the Tenant or Defendant or upon the Plaintiff quia non est prosecutus or pro false clamore c. or upon the Mainpernors because the principall appears not c. In such case the Justices never assesse any amerciament but by the Stat. of Magna Charta Cap. 14. and Westminster 1. Cap. 18. the Amerciament ought to be assessed per pares And the Court in such cases enters Ideo in misericordia generall without taxing or assessing any summe in certain And then the Clark of the Warrants in the Common Place makes Estreats of these Amerciaments and delivers them to the Clarke of the Assizes within every Circuit to deliver unto the Coroners in every County to assesse the Amerciaments Dal. fo 27. a. His Highnesse shall have all Amerciaments Fines Issues and all Forfeitures or Recognizances lost or forfeited c. before any of his Judges or Justices in any of their Courts or Sessions but these must first be estreated into the Exchequer and from thence Processe must be awarded to the Sheriffe to levy the same to his Highnesse use 33 H. 8. c. 39. The Sheriffe ought not to take or seise the goods of any man arrested imprisoned or indicted for felony or for suspition thereof before the same person be duely convicted or attainted of the same felony viz. either by tryall confession or Utlarie and Judgement thereupon given or that the same goods be otherwise lawfully forfeited upon paine to forfeit the double value of those goods so taken to the party grieved By the Stat. 1 R. 3. c. 3. Yet lest the goods should be disorderly wasted or sold away the Sheriffe before the attainder of the Felon may take sureties that the goods be not imbezelled c. And for want of sureties the Sheriffe or other his Officers may seize them and deliver them to the Town by them safely to be kept Brook tit forfeit 44. Plow 68. But yet the Felon must have reasonable maintenance for himselfe and his Family untill he be convict and the remainder shall be to his Highnesse c. If the Felon flye the Sheriffe is to seize all his goods and chattels as also the profits of his Lands to his Highnesse use But yet by Coo. 5. 109. Plo. 262. the goods c. of a Fugitive are not forfeited untill the flying for felony be lawfully found upon Record either before the Coroner upon an Indictment Super visum corporis in case of the death of a man or by verdict upon his acquittall for although he be found not guilty upon his tryall yet shall he forseit his goods for his flying quia fatetur facinus qui judicium fugit and the Law will admit no reproof against this presumption And albeit the Jury which tryes him shall finde him not guilty and further that he did not flye yet the goods are forfeit by force of the finding of his flying before the Coroner And the Sheriffe presently after such flying found before the Coroner is to seize the goods and the profits of the Lands of such offenders See Fitz. Forf 32. Yet he that shall flye for felony shall not forfeit the goods or profits of his Lands which he had at the time of the Felony or flying but those onely which he had at the time of the Indictment or acquittall Coo. 5. 109. Fitz. Coron 296. 344. The Sheriffe is to seise to the use of his Highnesse the Goods and Chattels of him that killeth himselfe but he shall not forfeit his Lands Yet if an Infant a man Non compos mentis or a Lunatick killeth himself he forfeits nothing If a man be indicted for felony and absents himselfe so long as an Exigent is awarded against him they shall be accounted a flying in Law for which he shall sorseit all his goods although he shall be acquitted afterwards of the Felony And the Sheriffe may presently ex officio seise them to his Highnesse use Co. 5. 110. b. Stamf. 184. The Sheriffe or his Under-sheriffe shall receive all manner of VVrits at all times and in any place within the Shire without taking of any thing and shall make Warrants thereupon 2 Ed. 3. cap. 5. Cromp. 203. and shall be by him or his Bayliffs executed He may command his Under-sheriffe Bayliffe or other known Officer to execute them either by word or precept But if his mandate be to a man that is no known Officer to execute any Writ or Warrant he must either deliver the Writ it selfe or a precept in writing in his owne name and under the seale of his office otherwise an Action of false imprisonment will lye for the Arrest Lamb. 91. 21 H. 7. 23. a. But if a precept be made to a Bayliff and to a stranger or speciall Bayliffe Conjunctim divisim and is executed by the stranger onely it is good Lamb. 91. and Daltons office of Sheriffs 44 If a writ issue out from the Judges Justices or the Court he shall not stand capitulating or disputing their authority or validity of the Writ but ought to execute it Co. 6. 54. 9. 68. 10. 70. Dr. and Student 150. For he is obliged both by oath and office to execute all processe of Law and if a Capias be delivered to him without an Originall he shall execute it and is excusable in an action of false imprisonment For he being the Officer and Minister of the Court it is reasons adversary to punish him for executing the Mandates of the Court according to the Maxime Co. 10. 70. Quicunque jussu judicis aliquid fecerit non videtur dolo malo fecisse quia parere necesse est He that acts any thing by the mandate of the Judge seemeth that he acted not any thing fraudulently or amisse because he must needs obey But if the Court dilate it selfe beyond its jurisdiction in that case all the proceeds are Coram non judice and there an Action doth lye against the Sheriffe without any regard to the Precept or Processe for when he hath no jurisdiction he is no Judge and there is no necessity to obey him no more then a meere stranger and to backe it with the authority of a rule or axiome Extra terratorium jus dicente non paretur impune He that obeyeth in prescribing Lawes beyond his jurisdiction shall not escape unpunished Co. ibidem fo 57. a.
if he hath Assets there 16 E. 3 Execution 49. and a man may well pray Execution of the body in one County and an Elegit of the land in the other County Execution 38. If a Statute Merchant be sued of parcel of the Lands of the Conusor in the name of all his Lands he shall never extend on the rest of the lands Mic. 22. E. 3. f. 14. If three are bound to one in a Statute Merchant and every one of them by themselves quemlibet eorum perse I may sue Execution against one of them only or against them all at my pleasure If an Infant bind himselfe in a Statute-Merchant or Statute-Staple he may avoid this during his Non-age by Audita Querela and also he may have his Audita Querela after his full age to avoid this Statute by matter of fait and the like law if the Statute be acknowledged by dures of imprisonment Statute Staple WE now come to the laying open a Statute-Staple which is duplicate to use the words of Mr. West viz. either 1. Properly so called or 2. Improperly 1. A Statute-Staple properly so called is an Obligation acknowledged before the Major of the Staple in the presence of one or two Constables of the same Staple And by vertue of such Statute-Staple the Creditor or Recognisee may forthwith have execution of the body lands and goods of the Debtor or Recognisor and this is founded upon the Statute of 27 E. 3. c. 9. 2. A Statute-Staple improper is an obligation of Record founded upon the Stat. of 23 H. 8. c. 6. of the nature and validity of a proper Statute-Staple as touching the form and Execution thereof and acknowledged before one of the chief Justices and in their absence before the Major of the Staple at Westminster and Recorder of London You have the forms of all these Obligations or Statutes in West part 1. Symb. L. 2. Sect. 152. 153. 154. 155. It is sealed with three seals viz. with the seal of the Conusor with the seal of the Protector and of one of the said Iustices or of the Major and Recorder 23 H. 8. c 6. And note that all Statutes Staple and Merchant shall be brought to the Clerk of the Recognisance within four months and inrolled within six months otherwise such Statute shall be void against Purchasors c. 27 Eliz. c. 4. The maner of the proceeds upon it are the same with the Statute-Merchant saving that in a Statute-Staple presently after the Certificate into the Chancery the Conusee shall have a Writ to take his body and extend his Lands and goods returnable in Chancery and this writ is a Commission directed to the Sheriff of the County where the Lands and goods lie for the valuing of the same whereby all the lands goods and chattels of the Conusor shal be apprised and valued at a reasonable rate by a Jury of men sworn charged by the Sheriff for that purpose which Inquisition so taken is to be returned by the Sheriff and thereupon the lands goods and chattels are to be taken into the Sheriffs hands and by him to be delivered to the Conusee which the Sheriff may do if he will without any Writ to hold unto the Conusee until he be satisfied his debt and damages And if the Sheriff refuse so to do the Conusee shall have a writ out of the Chancery called a Liberate to compell him to deliver to the Conusee the lands goods and chattels so found by inquisition and taken into his hands upon the Extent which the Sherif need not return Fitz. Accompt 97. Execution in toto Broo. Stat. in toto Stat. Acton Burnel de Mercat 27 E. 3. 9. F N B. 130. 131. 132. Dyer 180 Coo. 4. 67. Plow 61. 62. 82. Co. super Lit. 290. Coo. 5. 87. c. See more of the proceeding in Statute-Merchant It was adjudged in B. R. Hil. 42. Eliz. that a debt recovered in the Kings Court by Judgment shall be paid before a Bond in nature of a Statute-Staple or Merchant because the Judgment is a matter of a more high and worthy nature then private portable pocket Records also it shall be preferred before a Recognisance acknowledged in any Court by assent which may also be privately done and a Judgment so given in the Kings Court upon ordinary and judicial proceedings which remain in the custody of a sworn Officer are Records which are preferred in Law before such Statutes non refert whether the Judgment or Recognisance or Statute be first for be the Judgment first or last it shall be first satisfied c. And so it was holden per totam curiam in the Common Pleas in Pemberton and Bartams case Plow 32. El. Rot. 235. which see in the end of Sadlers Case in the 4. Reports Dyer 80 53. Recognisance what it is WE now come to the third which is Recognisance and that is an Obligation or Bond of Record acknowledged in a Court of Record testifying the Recognisor to owe to the Recognisee a certain summe of money and is acknowledged in some Court of Record or before some Judge or other Officer of such Court having authority to take the same as the Master of the Chancery the Judges of either Bench of the Exchequer Justices of Peace c. And those that be meer Recognisances are not sealed but inrolled And yet some are sealed with the seale of the party and may be with condition annexed or may be single and then to have Indentures of defeasance If the money be not paid at the day the Conusee proceeds upon it after this manner The Conusee his Executor or Administrator is to bring a Scire facias against the Conusor or if he be dead against his heirs when they be of full age or if the Lands the Conusor had at the time of the entering into the Recognisance be sold against the Purchasors of those Lands which the Conusor had at any time after the Recognisance entred into to warn them to come into that Court whence the Scire facias cometh and to shew cause why Execution should not be done upon the said Recognisance And if the party or parties cannot be found to be warned or being warned do not appear at the time or appearing shew no cause why the debt should not be levied then the Conusee shall have Execution of a moyty of his Lands by Elegit or if the Conusor be living of all his goods by Levari or Fieri facias at his Election but he cannot have Execution of his body unlesse he bring an action of debt upon the Recognisance or it be by course of the Court as it is in the Upper Bench upon a Bail in which case a Capias doth lie Dyer 360. 315 West 2. 18. Broo Execution 129. Co. 3. 11. 15 H 7. 16. Kitch 117. And the proceeds against Sureties in Statutes shall be as the
Writ appeareth in a certaine pannel to this VVrit annexed R. S. Esq Sherif The names of the Jurors between A. B. Plaintif and C. D. Defendant of a plea of Trespasse E. F. of G. Gent. H. I. of the same K. L. of M. And so to the number of 24. Every of the said Jurors is severally attached by pledges Io Doo Ric. Roo R. S. Esq Sherif The execution of this writ appeareth in a certaine pannel to this writ annexed R. S. Esq Sherif The names of the Jurors between A B. Plaintif and C D. Defendant of a plea of Trespasse E F of G Gent H I of the same K. L of M And so to the number mentioned in the writ Every of the said Jurors is severally attached by pledges Iohn Doo Rich Roo Issues of every of them 10 s. R. S. Esq Sherif At my County of N. held at L. in the said County of N. the 8th day of Ian in the year of our Lord 1658. the within named A B C D and E F were the first time called and did not appear And at my County Court there held the first day of Feb in the same yeare 1658. they were the second time called and appeared not And at my county Court there held the first day of March in the foresaid year 1658. they were the third time called appeared not And at my county Court there held the 2d day of April in the year of our Lord 1659. they were the fourth time called and appeared not And at my County Court there held the first day of May in the year 1659. abovesaid they were the fith time called and the above named A. B. brought me his Highnesse VVrit of Supersedeas which I have to this writ annexed therefore against him the said A. B. I could no further proceed And the above named C. D. rendred himself into my custody whose body before the Justices within mentioned at the day and place within contained I have ready as within it is commanded And the above named E F. did not appeare therefore by the judgement of J K. L M. Gent. Coroners of the County aforesaid the aforesaid E E. is outlawed R. S. Esq Sherif At my County Court of N. held at L. in the County of N. the 1. day of Feb. in the year of our Lord 1658 And at the general Sessions of the publique peace held at G. the 20 day of Apr. in the aforesaid year the 2 day of April in the yeare of our Lord 1659. And at the most usuall door of the Parish Church of c. within written on Sunday the 10 of April 1659. abovesaid I made publique proclamation as within it is commanded R. S. Esq Sherif There being four County Courts allowed at which the within named A B. C D. E F. were foure times called appeared now Now at my County Court of N. held at L. in the said County of N. the above named A B. C D. E F. were the first time called and appeared not therefore by the judgement of I K and L M Gent. Coronors of the County they are and every of them is outlawed R. S. Esq Sherif This Writ was so lately delivered me that by reason of the shortness of time I could not do due execution thereof according to the Exigence of the same R. S. Esq Sherif The within named A. B. was taken by R. C. Knight and Baronet late Sheriff of my County of N. and not by me now Sheriff of the same County R. S. Esquire Sherif By vertue of this writ to me directed I have before the Justices within mentioned at the day and place within contained the Plaint which is in my County Court by his Highnesse Writ between the within named parties under the seals of A B. C D. E F. and G H. four lawfull men of my said County present at that Record as appeareth in a certain Scedule to this Writ annexed And have given notice to the within named I. K. that he may be then there ready to prosecute his plaint thereof against the within named T. W. And also I have there the other Writ to this Writ and Scedule annexed I. G. Esquire Sherif S. ss At my County Court held at I. in my said County the 11. day of in the year of our Lord 1657. ss I. K. complaineth against T. W. of a plea of Debt I. G. Esquire Sheriff By vertue of this Writ by C D. and F G. honest and lawfull men of my Bailiwick I have given notice to the within named L S. I. L. c. that they be before his Highnesse at the day and place within contained to shew c. Why the within named R R. should not be inlarged out of prison according to the act c. As within it was commanded I. G. Esquire Sherif The within named G. S. hath nothing in my Bailiwick whereby I can give him notice neither is he found in the same neither are there any tenants or tenant of any Lands or Tenements which were of the within named W. on the within written day of the Judgment within given or at any times afterwards in my Bailiwick unto whom I may give notice as this writ doth require I. G. Esquire Sherif Pledges of process Jo. Doo and Ric Roo Sum of the within named A. B. Anth. Sharp and Rich. Sharp And at the most usual Church-door of the Parish of D. where the within named A. B. inhabiteth upon the Lords day to wit the 4. day of Iu. in the year within written immediatly after divine service in the same Church ended I made publick Proclamation according to the form of the Statute c. R. S. Esq Sherif By vertue of this Writ to me directed the 26. day of A. in the year within written I have taken into the hands of his Highness the Lord Protector by the view of H. R. and T. R. honest and lawfull men of my Bailiwick the third part of the Messuage Lands and Tenements within mentioned with the appurtenances As within it is commanded The summoners of the within named A. B. Jo. Den. and Ric. Fen. R. S. Esquire Sherif Pledges of Processe Jo. Doo and Rich Roo The Summoners of the within named A. B. son an heir of A. B. I. W. and E. W. R. S. Esquire Sherif By vertue of this Writ I have caused to be delivered to the said A. B. his possession of his term within specified of the Messuage Lands and Tenements within specified And also have taken the body of the within named C. D whose body before the Justices within written at the day and place within contained I have ready as within it is commanded And where the Defendant is not found then close thus And I further certifie the Justices within specified that the within named C. D. is not found in my Bailiwick R. S. Esquire Sherif By
Law Decies tantum subornation of perjury concealment such as are not outlawed abjured condemned in a Premunire or attaint of Treason felony c. 11 H. 4. cap. 9. Return of Issues HE is to returne good sufficient and reasonable Issues and upon such persons as have sufficient goods and lands according to the Stat. of Westminst 2. cap. 39. E. 3. cap. 5. Of Escapes and what damage doth occur to the Sheriffe by them THe Sheriffe ought to be very cautious in electing a vigilant and honest Gaoler and such a one as is able to give sufficient security for his indempnity and true performance of his office and to answer all escapes for of all the Officers that appertain to the Sherif the Gaoler ought to be most circumspect otherwise many escapes would happen And first to define what an Escape is It is here to be understood where one that is arrested and imprisoned in the common Gaol of the county and cometh to his liberty before that he is delivered by the award of any Justices or by order of Law If the imprisonment of him that escaped were for felony then that shall be felony in him that did voluntarily not otherwise suffer the escape and if for treason then it shall be treason in him and if trespasse then trespasse c. Although the prisoner which escapes be out of the view yet if fresh suit be made and he be reprised in recenti insequtione he shall be in execution otherwise at the turning of a corner or by an entry of an house or by any other such meanes the prisoner may be out of view Co. 3. Rep. Rigweys Case If the Sheriffe doth assent that one who is in execution and under their custody shall goe out of the Goal for a while and then return although that he returne in the time yet this is an escape for the Sheriffe ought to guard him in salva et arcta custodia and the Statute of Westm 2. c. 11. saith quod carceri mancipentur in ferris So that the Sheriff may keep such as are in Execution in yrons and fetters till they have satisfied their Creditors It is adjudged if one be in Execution no commandement although of the Protector himselfe without writ is a sufficient warrant to discharge the Gaoler and so by the same reason shall not discharge the Sheriff Where the Sheriffe dyeth and one in Execution breaketh the Gaole and goeth at large this is no escape for when a Sheriff dyeth all the prisoners are in the custody of the Law untill the election of a new Sheriffe If a woman be Warden of the Fleet and a prisoner in the Fleet marrieth her this shall be judged an escape in the woman and the Law judgeth the prisoner to be at large Plow Comment Plats case If the Sheriff remove his prisoners out of the County without being commanded it is an escape But if he remove them from one place to another in his County as he changes his Gaole it is no escape but if he remove his prisoners for their ease and delight in the same County it is an escape As the case was cited by Harvey Mich. 3. Char. Com. Banc. That the Sheriffe went with his prisoner to a Beare-baiting in the same County and it was adjudged an escape And Hutton Justice said that if a Sheriffe permit his prisoners to go to worke for their benefit it is an escape And the question was if in an Audita Querela for a voluntary escape of one in Execution there should be bayle And the opinion of the Court was That if it appeares that the cause upon which the Audita Querela is grounded is called a good proof by the Record and that he should not be bayled unless good and speciall bayl If a prisoner of his owne wrong escape and flye into another County the Sheriffe or his Officers upon fresh suite may take him againe See Daltons office of Sheriffs If a prisoner in the Gaole attempteth to escape and having broken his yrons striketh the Gaoler coming in the night to his prisoner and the Gaoler slayeth him it is no felony 22 Ass 35. An Action of Debt was brought against a Gaoler for an Escape who said that the Sheriff did not deliver him lawfully to him And it was therefore ruled 13 Edw. 3. Fitz. tit Barr. plac 253. That to be kept in salva arcta custodia 13 E. 3. Fitz tit he shall not take benefit nor any notice whether he was lawfully delivered to him in Execution or not But he being once in his custody he ought to keepe him in arcta salva custodia subpoena salva for the Gaoler and arcta for the party the Plaintiff the party by this being coarcted to pay the debt Mich. 12 Jac. An action upon the Case was brought against the Sheriffe of N. for an escape upon Not guilty pleaded all the speciall matter was found and shewed to the Court which was this That a Capias did issue to the Sheriffe to take one Iohn which was by a wrong name and the Sheriffe returned a Non est Inventus and upon this a Testatum issued out to him and therein named him by his right name Upon this the Sheriffe tooke him and had him in Execution and afterwards suffered him to escape The whole Court agreed that the Sheriffe is answerable for this escape notwithstanding the first Capias was by a wrong name for he was taken and suffered to escape here upon Not guilty pleaded the special matter was found and shewed that the first Capias was by a wrong name yet the Court was cleer of opinion that he being taken and in Execution by his right name though the first Capias was erroneous and not right the Sheriffe shall be chargeable for this escape clearly and so by the rule of the Court judgement was given for the Plaintif I thinke it very pertinent to our subject matter and 't is well worth observation to transcribe Whitings Case against Sir George Reynell Marshall of the Kings Bench in the second part of Crooks Reports fol. 657. and 658. viz. Debt for 202 pounds whereas he recovered against Thomas Abingdon and Mary his Wife in trespasse for damages 202 pounds and the said Mary was committed in Execution to the Defendant upon this Judgement That the Defendant 24 Novemb. 16 lac suffered her to goe at large whither she would his debt not being satisfied per quod actio accrevit The Defendant pleaded That she brake Prison and escaped and freshly followed her and took her again 21 Octob. 17 Iac. in fresh suit and had her in Execution and yet hath her c. VVhereupon the Plaintif demurred And it was now angued that this plea was not good because the escape is alleadged 24 Novemb. 16. Jac. and the Action is brought Pasch 17 Iac. And this reprisall is alleaged a yeare after the escape and after the
to the prescription this shall be good by way of confirmation As a Court-Baron is incident to a Mannor so a Court of Pypowders is incident to a Fare and by the Grant of the Fare this doth passe and with this accords 19 H. 8. Brooks case fol. 2. placito 7. and Brook tit incidents placito 34. and not to be fevered from them neither by grant nor by reservation 2 3 Phil. and Mar. Dyer fol. 133 pla 80. the Plaintiffe in a Court of Pypowder doth count of a contract made in the last Fare before where no plaint was then begun nor any judgment of Amerciament of the Defendant then given and this was held a good Error in both by all the Justices of both Benches Mich. 42. and 43 Eliz. B. R. Co. 10 fo 73. in the case of the Marshalsea where Hall braught a Writ of Error against Jones to reverse a Judgment given against him in the Court of Pypowders of the Market in the City of Glocester for that that Hall had published slanderous words of him viz. Mr. Jones and his Clerk have by colour of his office extorted and gotten 300 l. per annum by unlawfull meanes for many years together above their ordinary fees for proving of Testaments and granting of Administrations the which judgement was reversed for two Errors viz. 1. Because words did not concern any matter touching the Market and therefore the Court had no jurisdiction of it but if one slander any with Trades and Merchandizeth in the Market in any thing which concernes his Trade there an action for this well lieth 2. It appeares in the Count that the words were spoken before the Market and not during the time of the Market for as this Court hath no jurisdiction but in matters concerning the Market so the same Court hath no jurisdiction for matters concerning the Market unlesse they were acted and done during the time of the Market Bracton lib. 5. fo 335. a. De brevi de recto 1. de diversitate divisione summonitionis It is there said per quindecim dies ante diem quo comparere debeat summonitio ought to be Et talis summonitio dici debeat legitima Si minus spatium contineat possit illigitimam judicari nisi ob causam legitimam minus tempus statuatur ut propter personas qui celerem habere debeant justitiam sicut sunt Mercatores quibus exhibetur justitia Pepoudrous by the Statute of 17 E. 4. capite 2. And in this Court no Steward or other Minister shall hold plea upon any action at the suit of any person unlesse the Plaintiffe or his Attorney in presence of the Defendant do sweare that the contract in the Declaration c. was had and made during the time of the Fare and within the jurisdiction of the Fare but this oath so taken shall not conclude the Defendant for pleading in abatement of the action and to the jurisdiction of the Court this by the Statute of 1 R. 3. cap. 6. is made perpetual in this principal case here the Defendant in the Court at Rochester was condemned in an action of debt for 300 l. upon a Bond and Contract formerly made and entered into and for this cause the judgment was erroneous Note that in this Court the Steward is Judge because there are no Suitors there neither can the Steward delegate a Deputy 6 E. 4. fol. 3. 7 E. 4. fol. 23. A TABLE OF THE PRINCIPALL MATTERS contained in the BOOKE A A Merciament in the County Court 6 How they are forfeited in Court-Leet and what shall be causes to amerce c. 313 Of Amerciament 314 Attorneys in the County Court 10 how qualified 11 Actions within what time they must be brought 12 Who may bring Actions and who not 13 Appearance what it is 14 Answer what 17 Accompts of the Sheriff with a particular of some usual charges or fees paid by him at the rendring of them up 224 225 Appeals 295 The Sheriff shal have Counter-rolls of Appeals c. 297 Accessaries who 326 Alehouse keepers 332 Assize of bread 333 B BAyliffs in the County Court 11 how qualified ibid. Burglary what 324 Bond taken by the Sheriffe upon a Fieri facias for the payment of money in Court not within the Stat. of 9 E. 4. 50. 185 Burning of houses or Barns 326 Bail what it is 212 Any person making a warrant c. without original processe upon examination c. shall be committed without bail 214 Such as are in Execution c. not to be bailed ibid. None to be bailed that are prohibited by the Statute of West 1. cap. 15. he cannot bail any suspect of felony as formerly ibid. The Sheriff cannot refuse to baile one bailable upon tender of sufficient sureties ibid. Traytors or Felons not bailable 215 In the Vpper Bench the baile not chargeable till default assigned in the principal c. ibid. The new rules concerning speciall bail ibid. and 216 Bridges decayes 328 Boundaries 330 Bloodshed 331 Barretors ibid. Brewers 333 Butchers 334 Breaking of Pownds 338 Beadel why so called 347 Bastard may not inherit 351 C COunty Court when instituted 3 Now the Sheriffs Court ibid. By whom first exercised ibid. What action may be brought in it 4 5 6 12 The time when it is to be holden 5 Where it is to be kept 6 What actions will not lie in it ibid. Proceedings in it 14 The manner of keeping the Court 23 24 25 Processe of the Court Original 37 Judicial 43 County Clerk how to be qualified 7 He cannot practise as an Attorney 8 Can act nothing without the Suitors 9 His care in deputing Bailiffs 9 How he must enter plaints ibid. How he is punishable ibid. Count what it is 16 Continuance what 17 Challenge of Jurors What are good causes 21 Capias ad satisfac where it lies 71 174 Cap. lies not after an Elegit and Why 179 Note where it lies after an Elegit 178 What it is 179 One taken upon it must be kept in salva arcta custodia ibid. This Writ lies where a Capias lies in the originall ibid. Nothing but the body can be taken by this Writ 180 A man in the custody of the Sheriffe and a second writ is delivered to him he shall be in his custody upon it although not actually arrested ibid. Two bound in an obligation joyntly and severally both may be sued and taken in Execution ibid. This Writ lies not for damages in a Writ of Dower ibid. No return is required upon it ibid. Capias pro Fine what it is 181 An Elegit sued after one is taken for the Protectors fine he shall go at large ibid. No one taken upon it in trespasse c. ibid. Capias ut legatum what it is and where it lies 181 182 Capias ut legat inquiras de bonis catallis What it is 182 Capias ad valentiam what it is and Where it lies ibid. Coroners
the Vnder-Sheriffe justified the breaking of three doores to doe execution c. ibid. The Sheriffe may sell a Lease for years without taking inquisition of them 186 Four reasons Why no returne is required upon a Fi. fa. ibid. Felony he that flies for it forfeits his goods chattels and the profits of his lands 162 Vtlawes goods for felony 163 Felony What 324 Fore-staller 332 Frie of fish 337 Fine What shall be said reasonable for a Copy-holder to pay upon his admittance Forfeitures What shall make a forfeiture of Copyhold estates and What not 367 Forfeiture to build and pull down again 368 A Copyholder by the Common-law cannot make a Lease for one yeare but it is a forfeiture ibid. A Lease for one yeare by a Copyholder c. a forfeiture ibid. A Copyholder may inclose where it hath been formerly inclosed c. and not forfeiture 369 The heir may take the profits before admittance and make a Lease c. ibid. To refuse to pay a fine certaine a forfeiture or refuse to appeare at his Lords Court ibid. and 370 G GEnerall issues what 18 Goaler the Sheriffe must be cautions in electing of him 208 H HAbere facias seisinam what it is and where it lies 188 Habere fac possessionem what it is and where it lies ibid. High treason what 323 Hue and crie 327 Hedge-breakers 330 Hand guns 337 Hawking and hunting with Spaniels 338 Hares tracing ibid. Horses infected 339 Hayward why so called 347 Herriot service and herriot custome 348 I ISsues generall what 18 Jurors and what are good causes of challenge 21 Ingrosser 333 Inne-holders 334 K KNights-service what it is 346 Homage Escuage and fealty is Knights-service ibid. Knights-service is done by a man in propria persona ibid. L LEvari facias 174 What it is 187 Part of the sum levied a Sicut alias Levari fac may issue out for the residue 187 Leet what it is and the first institution of it 307 The power and authority of the Iudge of the Court 309 What may be enquired of in this Court 310 What things are not to be inquired of in this Court 310 What things are considerable in holding Tourns and Leets 312 Iury what 113 The method of keeping Court-Leet 316 Exhortation before the charge 319 What things are to be considered by a Iury in swearing 320 321 The charge of the Court 322 Lord of the Mannor how qualified 357 M MOdo forma 14 15 Mayor of a Staple hath power to hold pleas done there 170 Misprision of treason what 325 Measures and weights false 335 Musters 338 Mortmain 339 Mannor what it is 349 Of the first originall and institution of it ibid. The definition of the word ibid. 350 How Mannors were first created 250 Of what parts a Mannor doth consist ibid. Customary Mannor what it is and what may be a good Mannor to maintain Copyholders 351 By what names a Mannor may passe 350 Five necessarily appertaining to a Mannor 339 Mortmain what it is 350 N Non-suit how 16 Not informed what 18 Nihil dicit what ibid. Nusance 327 O OFfice of County Clarke 6 7 Office of Coroner in the County Court 9 10 Office and duty of the Steward in a Court-Baron 371 Order of the Judges of Assize at York concerning Essoins illegally returned into the County Court 56 57 P PLedges in the County Court 13 Proceedings in the county-County-Court 14 Vpon the Writs of Recordare Pone Writ of false Judgment c. in the Common-pleas after removall out of the County Court 69 70 71 72 Pleas specially to be pleaded 19 20 Parliament men how and when they are to be elected 216 Who may be Electors 217 Time when they are to be elected ibid. What persons are eligible and who not 218 Punishment of Sheriffes for their negligence in elections or returns 219 Penalties on Counties and places for not electing ibid. Presentments in Leets how traversable 315 Petty Treason what 323 Petty Larceny what 324 Physnomy defaced ibid. Pownd-breach 331 Pheasants and Partridges 338 Pond breaking ibid. 353 Pypowders the Court the definition of it what it is together with its Jurisdiction 393 394 By way of Grant and confirmation 395 The Steward is Iudge ibid. This Court is incident to a Faire or Market and by a grant of them it passeth 396 No plea shall be holden in it unlesse the Plaintiff or his Attorney do sweare that the Contract was made during the time of the Fare 397 R RUle what 17 Replication what ibid. Rejoynder what ibid. Replevin with the Proceeds upon it 34 35 36 37 Recognizance what it is 174 The manner of proceeding upon it ibid. Proceeds against the Sureties 175 Execution upon it of all the goods and chattels and a moyety of the Land ibid. Execution of the Land which the Reconusor had at the time of the Reconusance ibid. Two sued in Execution the money delivered to the Attorney of the one and to the other himselfe good ibid. The beir charged ibid. Execution upon the Statute and findes baile and doth not appeare at the day ibid. Two sue execution and one dies before the extent yet the lands shall be extended but otherwise upon a Stat. Merchant ibid. Three bound in a Statute joyntly and severally he shall have execution against one or all but not against two 176 Rape what 324 Reliefe is as much money as one yeares rent 347 Rescous what it is 353 Returns of writs and first what return is 189 Return of a Cepi corpus for one and a Non est inventus for others by one that was not Sheriffe ibid. Four reasons why no return is required upon a Fieri fac 186 Surplusage no hurt to the return of a writ 190 A Proclamation upon Exigent returned by a Sheriffe out of office void 191 Rescous upon a Latitat no good return ibid. Cepi corp returned upon a Cap. ad sat and hath not the body at the day an escape c. ibid. In all writs of execution except an Elegit no return is required but an Elegit must be returned ibid. To say that the party will not pay his fees no return ibid. The Sheriffe must set to his returnes his name of Baptism and sirname 192 Imperfect returns corrigible ibid. To say that the Bayliff will make no deliverance no good return ibid. He shall not be charged for insufficient returns by Bayliffs of Liberties ibid. Every return must exactly answer the writ ibid. The omission of words makes the return invalid ibid. Return of Rescous invalid c. 193 No good return where the Sheriffs name is wanting ibid. Note that the word exacteth amounts to as much as the within named ibid. The Sheriffe amerced twenty pounds because he did not take posse com to execute a Hab. fac seisin ibid. VVhat returne upon waste good and what not ibid. Returne of a Precept for Writ not good ibid. A bad return 194 A return by the Sheriffe in the third person no good
no such promise within six yeares ibid. Never Executor 134 Fully administred and Replication ibid. Not guilty 135 Bar by which in age ibid. Payment upon a Bill and a Release produced ibid. Free-hold 136 No action to cause one to render an accompt will lie in this Court ibid. In arrest of Judgment ibid. Conditions performed and Replication 137 138 Rejoynder ibid. Detain he doth not ibid. Bar by a generall acquittance and replication ibid. Justification of scandalous words 139 Tender of amends in Replevin ibid. Part of the debt paid the residue tendered before suit and refused and Replication 140 141 Not his Deed 141 By threats and Replication ibid. and 142 By hardnesse of imprisonment and Replication ibid. The assault made by the Plaintiff and Replication 143 The Defendant pleadeth the Plaintiff within age to bring his Action and should have brought it by Guardian and not by Attorney 144 To a trespasse in walking not guilty and as to the residue of the trespas tender of amends and Replication and Rejoynder 144 145 Misnomer in Baptism pleaded in abatement of the writ of Justicies 146 Plea in abatement for that the Plaintiff hath one name in the writ and another in the Declaration ibid. The Defendant justifies for horse meat not satisfied in answer to a Declaration in trover for the same horse 147 The Defendant plead leaves and liberty granted to him by the Plaintiff to enter and feed his cattle 148 The Defendant justifies in replevin the taking of the cattle for rent in arrear 149 The Defendant saith that the goods were taken as a pawn or pledge for money lent 150 Replication that he took them injuria sua propria without such a cause 151 Concord in assault and battery ibid. Replication No such concord or agreement made 152 The Defendant saith that as to the taking of the Oxe that he tooke it by the name of an Herriot ibid. Justification in trespasse for want of reparation of the hedges by the Plaintiffe 153 The Defendant justifies upon a Replevin the taking of the Cattel doing damage-feasant 154 Misnomer in the writ of Justicies ibid. Non cepit to a Replevin 155 Poverty ibid. Demurrer ibid. Joyning in Demurrer 156 Presentment in a Leet of petty Treason 342 Presentment of felony for burning a house 343 Presentment of a Felon ibid. Presentment of an Accessary ibid. Presentments in Court-Baron 375 The finding of the death of a Tenant and of a Surrender made to the use of his will with an admission of the Tenant according to the will ibid. The finding of the death of a Tenant 376 Pains found and set upon tenants for want of suit of Court ibid. 377 The presentment of a Surrender made out of Court into tenants hands with the admission of the tenant accordingly 377 The finding of a Surrender made into tenants hands to the use of a mans will 378 The finding of the death of a tenant and of the lands and that the youngest son is next heir according to the custom c. with his admission ibid. The finding of a sale made of Freehold lands with a distresse to the Bayliffe to distrain for want of taking it up 379 The acknowledgement in the Court of a Legacy paid ibid. A presentment of a Surrender made out of Court with the admission of the tenant 380 A presentment made in Court of an agreement made between the Son and his mother touching her Dower and the mothers release of her Dower 381 A pain set for an incroachment ibid. A pain set for the amending of the same ibid. A presentment for an offence done and a charge to the Jury to enquire and further day given for giving their Verdict 382 R REplevin 39 132 alias Repl. 40 Plures Repl. ibid. Return of a Tolt 43 Return of a Recordare fac Lo. 58 59 of a Pone 59 60 of a writ of False judgment 61 62 63 of an Accedeas ad curiam 65 66 of a Writ for the Election of a Coroner after the death of another 66 of an Exigent 66 67 68 of a Proclamation 69 of a Non est inventus 197 of a Cepi corpus in the Common Pleas ibid. of a Cepi corpus in the Vpper-Bench ibid. of a Cepi corpus and Non est inventus ibid. of a Cepi corpus and Languidus in prisona 198 of a Mandavi Ballivo libertatatis where the Bayliff makes no returne of the Sheriffs warrant or where he makes an insufficient return 198 and also where he returneth to the Sheriffe he hath taken the body and the like in case the Bayliffe returneth a Languidus in prisona or as he shall certified the Sheriff by his returne ibid. of a Scire facias where a Scire facias is returned ibid. of a Nihil to a Scire facias ibid. of Scire facias for one and Nihil for the other 199 of an Attachment and Proclamation in Chancery ibid. A Nihil returned of a Venire facias upon an Indictment presentment or information and summons returned of the like ibid. The Return of a Distringas nuper vic or Balliv ibid. of a Venire facias jur 200 of a Distringas or Hab. corp Jur. ibid. of an Exigent where one bringeth a Supersed one rendereth himselfe the other appeareth not ibid. of a Proclamation 201 of an Allocat ibid. of a Tarde ibid. of a Hab. corp where the Defendant was taken by a former Sheriff 202 of a Pone ibid. of a Scire fac for the release of Prisoners ibid. of Nihil to a Scire fac against the heir and ter-tenants ibid. of a Summons in Dower ibid. of a Cap. in manus in Dower 203 of a Summons upon an originall against an heir ibid. of a Habere facias possessionem Cap. where judgement is signed with costs ibid. of a Liberate out of Chancery 204 of an Acced ad cur ibid. of a Re. fa. lo. ibid. averia elongat and Cepi corp for damages 205 of a Rescous ibid. of a Devastavit 228 of a Nulla bona Devastavit by inquisition ibid. of a Fieri fac 229 of a Fieri fac where part of the debt is levied and for the residue a Nulla bona 230 another of a Fi. fa. ibid. of a writ where the Sheriffe dieth after execution thereof and so returned prout indorsat by the present Sheriffe ibid. of an Elegit where lands are in the Kings hands 231 of an Extent in the Exchequer 232 of a Scire fac against the heir and ter-tenants where notice is given 234 of a summons in Dower 235 Records upon a writ of False judgement and Accedeas ad curiam 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 Recognizance of a Coroner to binde witnesse to appear at the next assizes 290 Release of Lands made in a Court Baron 388 S SCire facias post diem annum 47 against an Executor after Judgement against the Testator ibid. after marriage 48 Subpoena or a Warrant to
summon witnesses 50 Sale of Goods to the Plaintiffe levied upon a Fieri facias by the Sheriffes Baliffe 53 Sale of Goods made by the Sheriffe by vertue of his Office 277 Surrender and remise of Lands made in Court before the Steward and the examination of the Wife 383 Surrender of Copyhold in Court with the admission of the tenant accordingly 384 Surrender and Lease made in Court with the examination of the wife 385 Surrender of Lands made in Mortgage upon condition for the payment of money with the admission of the Mortgagee by her Attorney and the Fealty respited ibid. Surrender of Lands made presently in Court 387 T TOit 42 Trover and Conversion 127 Trespasse for breaking down the Plaintiffs stall being set up in the Market 129 For breaking the Plaintiffs close ibid. For a Dog biting a Mare so that she dyed 130 For chasing of hogs with dogs ibid. For pasturing sheep in a rotten pasture by reason whereof they died ibid. For digging and plowing the Plaintiffs ground and taking away his corn 131 For taking away a post ibid. For eating the grasse cutting the hedges and assaulting the Plaintiff ibid. Trespass and assault 132 Assault upon one at under age ibid. V VEnditioni exponas 45 46 Venire facias Jurator 49 W WArrant upon a Writ of Justicies 39 Warrant upon a Proclamation 51 Warrant of Attorney for an appearance in the County Court 52 Warrant upon Accedeas ad Curiam 64 Warrant of a Coroner for the impannelling of a Jury 288 Warrant to summon a Leet 316 Withernam 40 Alias capias in Withernam 41 FINIS Courteous Reader These Books following are Printed for John Place and are to be sold at his Shop at Furnivals inne Gate in Holborn Books in Folio 1. THe History of the World by Sir Walter Raleigh Knight 2. Observations on Caesars Commentaries by Sir Clement Edmunds Knight 3. Sheppards Epitomy of the Law 4. The Reports of the learned Judge Popham sometime Lord chiese Justice of England 5. The Reports of the Learned Judge Owen chiefe Iustice of the Common Pleas 6. Londinopolis or a History of the Cities of London and Westminster by James Howell 7. The History of Swedes Goths and Vandals by Olaus Magnus Bishop of Vpsall 8. The Reports of the learned Sarjeant Bridgeman 9. Cowells Interpreter of hard words in the Law c. 10. Maximes of Reason or the Reason of the Common Law by Edward Wingate Esquire late one of the Benchers of Grays-Inne 11. The History of Edward the Fourth of the Wars between the Houses of York and Lancaster by W. H. Esquire 12. The Minister of State wherein is shewed the true use of Policy by Monsieur de Siton Secretary to Cardinal Richlew Englished by Sir Henry Herbert Knight Books in Quarto 1. The Compleat Clerk or Scriveners Guide containing the Draughts of all manner of Presidents of Assurances and Instruments now in use as they were penned by the most eminent Lawyers 2. Commentaries on the Original Writs in Natura brevium 3. An exact Abridgment of the Common-Law with the Cases thereof drawn out of the old and new Books of the Law both by William Hughes of Grays-Inne Esquire 4. An exact Abridgment of the Acts Ordinances of Parl. begining at the fourth year of King Charls to the year 1656. 5. Declarations and Pleadings c. in the Upper-Bench by Will. Small of Furnivals Inne late one of the Clerks in the Upper-Bench 6. Declarations Counts and Pleadings in the Common Pleas by Ric. Brownlow Esq late Prothonotary The second part 7. Regni argumenta Consilii or a collection of Authentick Arguments in Parliament humbly presented to the view and use of this present Session 8. The floating Island by Dr. Strowd acted at Oxford 9. The Tragedy of the fair I ene the Greek by Gilbert Sumhoe Esq Books in Octavo 1. The Iurisdiction of Courts by John Kitchin of Barnards Inne 2. Books of Entries of all manner of Judgments in the Upper-Bench and Common-Pleas 3. The Grounds and Maxims of the Law by Michael Haulk of the Middle Temple 4. A perfect Guide for a studious young Lawyer by Thomas Fidell of Furnivals Inne Gent 5. The Arraignment of the Anabaptists in a Dispute at Abergavenny in Monmouthshire by Iohn Cragge M. A. 6. A Cabinet of Jewels wherein Gods Mercy Mans misery c. is set forth in S Sermons with an Appendix of the nature of Tithes and expedience of Marriage by a lawful Minister by Iohn Cragge M. A. 1. The Abridgment of the Lord Dyers Reports by Sir Tho. Ireland 2 Observations on the Office of a Lord Chancellor by the Lord Elsemore late Lord Chancellor 3. The Laymans Lawyer or the second part of the Practick part of the Law by Tho. Foster Gent. 1. The Laws of Corporations Fraternities and Guilds by W. Sheppard Sarjeant at Law 2. Transactions of the High Court of Chancery by W. Tochel 3. Brooks Cases in English by I. Marsh of Grayes Inn Barrester 4. Poems by Matthew Stevenson 5. Perkins of the Lawes of England 6. An exact Abridgment of Doctor and Student 7. Invisible World and the Mystery of Godlinesse 8. Imposition of Hands both by Ioseph Hall Bishop of Norwich 9. Clarastella by R. Heath Esquire 10. Doctor Prestons Saints Infirmities 11. A Catechism containing the Principles of Christian Religion written by Moses Wall 12 The whole Survey of a Justice of Peace his Office by W. S. Sarjeant at Law FINIS Lambert arch This Court no Court of Record * Hengham f. 8. cap. 2. placita vero de furtis melletis hutesio plagis verberibus transgressionibus ubi non agitur de pace domini Regis fracta ad Vicecomites pertinent audienda determinanda See Seldens Notes upon it f 135 136 137 138 139 140. Likewise Sir Henry Spelmans Glossarie fol. 18. 438. LL. Edovar Confess cap. 12. Chimini vero minores de Civitate ad Civitatem ducentes de burgis ad burgos per quos mercata vehuntur caetera negotia fiunt sub lege Comitatus sunt c. Why instituted The time when it is to be holden Co. Inst 4. cap. 55. Where to be kept St. anno 2 E. 6. cap. 25. Stat. 15 H. 7. cap. 24. 33 H. 8. c. 26. No Fine Amercement What actions will not lye in this Court Exigents and Proclamations to be proclaimed five County dayes F. N. B. 163. idem 395. Bract. l 3. f. 98. Fleta l. 1. cap. 15. 31 Eliz. cap. 5. Appearance Essoyn Duc. tec. Declaration Modo forma Nota. Modo forma 27 H. 8. fo 29. Count. Non-suit Empartance Continuance Rule Answer Replication Rejoynder Sur-rejoynder 〈…〉 rrer C◠Inst 1. fo 7. b. Nota. Not informed Nil dicit Generall issues Pleas specially to be pleaded Obligation Debt Against Executors or Administrators Non-age Woman covert Arbitrament Trespasse Damage feasant Rent Detinue Slander Warranty Debt Demise Trespass Nota. Liberum tenementum or Freehold Nota. Et hoc paratus est verificare Et
de hoc ponit se super patriam Et hoc petit quod inquiratur per patriam 21 E. 4. f. 11. 63. 20. Ass 11. 2 H. 4. fo 16. 4 E. 4. fo 1. 2 H. 4. fo 14. 13 H. 4. fo 14. 22. B. 2. Car. 177. 8 E. 3. fo 69. 3 H. 6. fo 24. 9 E. 4. fo 49. Brit fo 134. 11 H. 4. fo 40. 33 H. 6. fo 55. 18 H. 8. fo 2. 8 H. 6. fo 60 Pasch 31. Eliz. 21 E 4. 74. 11 H. 4. c. 9. 23 Ass 11. Mirror cap 3. Nota. Co. Lit. fo 6. Plow 8. 12. Y. ss The stile of the Court. Proclamation Proclamation Proclamation Plaint Declaration Answer Venire facias The oath of the Jury The oath of the Witnesses Nota 17 E. 3. 47. 18 E. 3 48. 22 E. 3. 2. 18 E. 3. 56. 15 E. 3. Judg. 58 c. Hil. 25. Eliz. Mic. 28 39 Eliz. inter Gommersall and Gomersall c. Adjournment Broo. 146. Finches Ley 135. Coo. Sup. Litt. 97. 3 H 6. 54. 7 E. 4. Br. Iust 3. Nota. The Condition Yo. ss Fieri facias against an Executor De bonis propriis Yo. ss Fieri facias upon a Non-suit for costs Yo. ss Fieri facias upon a Verdict for the Defendant Fieri facias after a Scire facicias against an Administrator upon a Verdict had against the intestate Venditioni exponas Y. ss Y. ss Yo. ss Yo. ss Yo. ss Yo. ss Y. ss County Court ss Y. ss Nota. Recordare facias loquelam The Return The Shcedule Y. ss The Plea Or thus The Schedule Nota. The Return The Schedule The Plea by Writ Nota. Nota. The Return The Schedule Writ of Justicies Warrant upon the writ Essoin De male vener Yo. ss Declaration Emparlance Non sum informatus Iury to inquire of damages Precept upon an Accedeas ad curiam The Return The Plaint Record to be delivered in Court Betwixt two Sheriffs Against a woman Defect of the Coroner Defect of the County Supersedeas Where one renders himselfe and the rest appear not Rendred himselfe Dead Waved Languid Nota. Nisi prius Nota. Cap. ad sasis Fi. Fa. Elegit Nota. Record upon a writ of false Judgment County Court ss Errors assigned Vpon a Replevin Yo. ss Distresse awarded Error assigned A Record upon an Acced ad Cnriam upon false judgment Errors assigned County Court ss Yo. ss Yo. ss Y. ss Yo. ss County Court ss Yo. ss Yo. ss County Court ss Yo. ss Yo. ss Yo. ss County Court ss County Court ss York ss Y. ss Yo. ss Yo. ss Yo. ss Yo. ss County Court ss Y. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss 14 E. 4. fol. 6. 15 E. 4. fo 32. 17 E. 4. fo 5. County Court ss Co. Report q. part Aldreds Case Yo. ss County Court ss Yo. ss Yo. ss County Court ss County Court ss Y. ss Yo. ss Yo. ss County Court ss County Court ss Yo. ss York ss Yo. ss County Court ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss County Court ss County Court ss Yo. ss York ss Yo. ss Yo. ss Yo. ss Y. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss County Court ss Yo. ss Yo. ss 1 Pact non sol 2 Morat in lege Yo. ss Yo. ss Yo. ss York ss Son assault de mesn Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Y. ss Yo. ss County Court ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss York ss Custos vitae Reipub His judicial ministerial authority Judicial power Fitz. N. B. 8. d. 82. Term. del Ley tit visc 44 E. 3. F. Barr. 202. 5 H. 7. 6. 3 H. 7. 1. St. 3 Iac. c. 4. Br. Fines 37. Offic. Coron 3 E. 1. Suspected persons Armed persons 2 E. 3. c. 3. Cromp. 203. He may beate such as resist him and may set them in the stocks 2 E. 4 f. 6. 21 H. 7. 39. Br. Tresp 218. 296. To enquire of waste or to execute a Writ of Redisseisin He may commit a disseisor to prison c. Co. 6. fo 12. Dalton office of Sher. fol. 18. His Ministerial power Custos vita justitiae Crom. 203. Co. 4. 72. A. Co. 3. 72. Westbies Case The indorsment of such writs as are turnd over to the new Sheriff by the old Sheriff Stat. 12 E. 4. c. 1. 17 E. 4. 6. The new Sheriff is to take notice who are in execution Co. 3. 72. b. Westbies Case He is to preserve the Protectors right c. 21 H. 7 7 a. Stamf. Perk 5. 6. Suit Royal what Suit service what He must levy his Highness debts c. 52 H. 3. c. 15. Fitz. 173. Br. Dist 35. 32. 40. 72. Stat. 51 H. 3. Issues Dalt office of Sher. fo 25. 〈◊〉 Amerciaments Mag. char 14. Westm 1. c. 18. Recognisance Fines Amerciaments c. 33 H. 8. cap. 39. He is to seize no goods of Felons c. till they be lawfully forfeited 1 R. 3 cap. 3. But take sureties he may that the goods shal not be imbezelled c. Br. tit forfeit 44. Plow 68. He that flies for felony forfeits his goods chattels and the profits of his Lands c. Coo. 5. 109. Plo. 262. Fitz. Forf 92. c. Coron 296. 344. Felo de se Vtlawes goods for felony Co. 5. 110. b. Must receive all Writs and execute them c. 2 E. 3. cap 5. Cromp. 203. He may command his Bayliff to execute them either by word or precept c. Lamb. 91. 21 H. 7. 23. a. He must not dispute the authority of the Iudges c. that send Writs to him but must execute them Co. 6. 54. 9. 68. 10 70. Dr. St. 150. Co 10. 57. a. b. A Bayliffe need not shew his precept when he executes it But a special Bailiffe must shew the warrant c. Co. 9. 69. 21 H. 7. 23. 37. An arrest by an old Sheriff after his discharge tortious If process may be executed upon the Sabbath day Coo. 9. 66. He may break open a doore to execute processe concerning his Highnesse but not in case of a common person Co. l. 5. 92. b. in Seymans Case Co. 11 82. a. Lewes Bowles case Proclamation to be made 4 times a yeare Stat. Winchester Statute against unlawfull games 3 Custos vitae legis 22 Ass 47. Fleta l. 2. c. 64 c. How to sue out an Execution upon a Statute Merchant Certiorare Capias Extendi facias what Note All the fee-simple lands of the Conusor at the time of the Stat. acknowledged c. shal be liable to the said Statute Stat. de Mercator 13 E. 1. 27. c. 9. 23 H. 8. Co. 3. 12. Copyhold Lands not lyable Nor Lease for term of life But lease for term of yeares c. shal be extended c. Goods demised pawned or pledged may not be taken 22