after possibility of issue extinct be impleaded judgment passe against him the reversioner or remainder man at the time of the judgment shall have writ of error upon an error in the record of the same judgment as wel in the life of such a tenant as after his death And if at the time of reversing the judgement the tenant for life c. be alive he shall be restored c. his possession with the mean profits the reversioner c. to the arrerages of the rent if any be due But if the tenant for life c. be dead at the time of reversing the judgement then the reversioner c shall be restored to the possession with the issues after the death of the tenant for life c. and also to the arrerages due in his life see the Marqu of Winch. case Co. 3. 4. Stat. 31. E. 3. 12. Error in the Exchequer shall be reversed before the Chancellor and Treasurer taking to them such justices and other sage persons as they shal think fit and afterwards the roll shall be sent back into the Exchequer to make execution Stat. 31. El. 2. If either the Lord Chancellor or Lord Treasurer or both the Chief Justices come at the day of adjournment in the Writ of error in the Exchequer it shall be no discontinuance Stat. 32. H. 8. 30. Made perpetuall 2. E. 6. 32. After a Verdict tryed by 12 men or more in any suit in a Court of record no Judgement shall be stayed or reversed for any mispleading lack of colour insufficient pleading miscontinuance discontinuance misconveying of Processe misjoyning of Issue lack of warrant of Attourney for the party against whom the Issue is tryed or any other default or negligence of the parties their Councellors or Attourneys Stat. 18. El. 14. After a Verdict of 12 men or more in any suit in Court of Record Judgment shall not be stayed or reversed for default of form or lack of form false Latine variance for the register c. in any writ original or judicial Declaration Bill or Plaint or for want of any writ original or judicial or by reason of any imperfect or insufficient return or for want of any warrant of Attourney or by reason of any manner of default in proces upon or after Aid prayer or Voucher Stat. 27. El. 5. After Demurrer joyned or entred in any suit in Court of Record the judges shal proceed give Judgement according to right the matter in law appearing to them without regarding any imperfection defect or want of form in any writ Return Plaint Declaration or other pleading whatsoever except those only which the party specially and particulary shall set down and expresse together with his Demurrer And no Judgment to be given shall be reversed by writ of error or by any such imperfection defect or want of form aâ— aforesaid except as is before excepted The two last Satutes extend not to suits of Felony or Murder nor to the indictment or presentment of them or of treason nor to the Proces of any of them nor to any suit upon any popular or penal Staute Rule 16 Stat. 27. E. 8. An error in the Kings Bench in an action of debt detinue covenant account action upon the Case Ejectione firmae or trespass first commenced there where the King is no party may at the parties choise be reversed in the Exchequer chamber before the Justices of the Common place and such Barons of the Exchequer as are of the Coife or six of them at least other then for error concerning the jurisdiction of the Kings Bench or want of form in a writ Return Plaint Bill Declaration Pleading Process Verdict or proceeding whatsoever And upon the judgement affirmed or reversed the Record shall be sent back into the Kings Bench to proceed and award Execution therupon the party grieved with such reversall or affirmation may have a writ of error in the Parliament in such sort as is now used upon erroneous judgements in the Kings Bench. Stat. 31. El. 1. Any three of the Justices and Barons if the full number come not may receive Writs of Error award Processe prefix dayes for the continuance of Writs of Error c. Rule 12. West 1 37. 3. E. 1. An Attaint is given in pleas of Land or of Freehold and of things that touch Freehold Stat. 1. E 3. Stat. 1. 6. It is given in Writs of Trespass as well upon the principal as upon the damages Stat. 5. E. 3. 6 7. In attaints no Essoin or Protection shall be allowed and a nisi prius is given in such Writs as well as in others Stat. 28. E. 3. 8. An Attaint is given in trespasse as wel upon a Bill as upon a Writ without having regard to the quantity of the Damages Stat. 34. E. 3. 7 An Attaint is granted in all pleas as well real as personall Stat. 9. R. 2. 3. It is given to the Reversioner during the life of his Tenant for life upon a recovery against him with restitution to the Tenant that left his possession together with the mean profits and of the arrearages to the reversioner but if the tenant that so lost be dead or were of covin with the recoveree restitution shall be made to the reversioner of the possession it selfe with the mean profits arrerages after such death or recovery by covin saving to the tenant his action by scire facias if he wil traverse the Covin Stat. de Attinctis 13. E. 2. If the petty Jury appear not at the first distresse against them or a nihil be returned the grand Jury shal be taken by their default Stat. 23 H. 8. 3. Made perpetuall by 13 El 25. In any suit before Justices of Record not concerning life an Attaint is given against the Petty Jury and every of them and the party himselfe the processe against the Petty Jury and Grand Jury shall be summons and Resummons and distresse infinite Open proclamation shall be made in the Court where the distresse is awarded more then 15 dayes before the return of the distresse and the Grand jury shall be taken in default of the Defendant or petty jurors or any of them If any of the petty jury appear then the Plaintiffe shal assigne the false Oath of the first verdict untruly given wherunto the petty jury shall have no answer if they be the same persons and the Writ Processe Return and Assignment be good and lawfull except the plaintiff in the same attaint hath before been non-suit or discontinued his suit or hath had a former judgment therin but only that they made a true oath which issue shall be tryed by 24. of the Grand jury and the party shal plead that they gave a good Verdict or any other matter which shall be a sufficient bar of the attaint Notwithstanding which plea the grand Jury shall without delay enquire of the truth of the Virdict such a day shal be given in a Processe as in
the Inheritance though he be prayed in aid and make default VII For after the death of tenant for life he may falsifie it by action of ad terminum qui preteriit or writ of right which is called falsifying of a recovery VIII In a writ of Dower feme Guardian in soccage against Guardian by Knight service she shal at his prayer be adjudged to endow her self wholy of the land in soccage and this is called Dower de la plus beale IX A debt acknowledged in a Court of Record either to the King or a common person is in the nature of a judgment and called a Recognizance X. In appeals of mayhem and in Indictments or appeals of felony the accessory shall not be compelled to answer till attainder of all the principals XI He that is or by possibility may be within Orders namely a Deacon at the least may have the benefit of his Clergy if he be found culpable of any bare-felonie where life and member is to be lost XII This possibility there being no other impediment shall be tried by the judges by his ablenesse to read a verse XIII Clergy is the delivering of him to the Ordinary to be kept in prison XIV If it be before judgment in which case he is called a Clerk convict he shall be tried there by a jury of Clerks and therefore purging himself shall goe at large XV. Not purging himself but being found culpable by those Clerks he shall be only degraded XVI But upon an appeal no purgation shall be allowed XVII A Clerk convict shall answer to any offence committed before XVIII A Clerk convict forfeiteth his chattells XIX Notice must be given to the King of the time before the party make purgation XX. If the Clergy be after judgment in which case he is called a Clerk-attaint he shall remain in perpetuall prison XXI Outlawry is a judgment in it self XXII So is abâ—uration XXIII The offender upon a presentment in a Leet or Sheriffs turn shall be amercied XXIV The Defendant in an appeal of felony being acquitted shall have iudgment also to recover damages against the Plaintiff XXV The Plaintiff recovering in a suit shall be allowed his costs XXVI These judgments have their judiciall Writs belonging to them both meer judiciall writs for the execution of them and new originalls in the nature of iudiciall writs to undo some matters concerning iudgments XXVII Meer judiciall Writs in reall or personall actions are either such as lie only within the year and day after the judgment rendred or a Scire facias XXVIII Those of the first sort are between the partie to the recovery and in the same Court where the recovery was XXIX Of this kind are upon recovery in reall and mixt actions XXX Habere facias seisinam to put him in possession upon a freehold recovered in an Assize Precipe quod reddat c. XXXI A writ to the Bishop to admit ones Clerk upon a presentation recovered in a Quare impedit or Assize of Darrein presentment XXXII Those upon a recovery in personal actions are of two sorts viz. to have execution of his possessions or against his body XXXIII .. Execution of his possessions is either of his lands or chattels or both XXXIV That of the land is either of the land it self or of profits out of the land XXXV Execution of the land it self is an Habere facias possessionem upon a term of years recovered in an Ejectione firmae c. XXXVI Executions of his chattels is a Fieri facias to levie execution of his goods and chattels onely XXXVII Execution of his lands and chattels is a Levari facias to levie execution of the profits of his lands and chattels XXXVIII Here execution shall be of any land which the party had the day of the judgment rendred but for chattels though it be a lease for years onely those which he had the day of the execution sued XXXIX But in Court Barons execution is onely by distresse and impounding till the party be satisfied XL. The King may have a distringas to levie an amerciament or such like by distresse and sale whether it be an amerciament in the Leet or Sheriffs turn or otherwise XLI Execution against the body is a Capias ad satisfaciendum to take the body in execution for satisfying of the partie XLII This is onely in a personal action where a Capias lay XLIII Here an Exigent shall be awarded upon the first Capias XLIV Of this nature are two speciall writs by the Kings Prerogatory Capias pro fine Regis and Capias utlagatum XLV Capias pro fine when the partie is adjudged to pay a fine to the King XLVI Capias utlagatum to take one that is outlawed XLVII These are the judicial writs within the year and day XLVIII A Scire facias is to warn the defendant upon recovery in real actions to shew cause why the plaintiffe should not have execution XLIX Here upon a Nihil returned execution shall be presently against the parties to the Judgement L. In case of life the Judge may command execution to be done without any writ LI. A woman quick with child shall for once anâ— no more be respited execution LII Here the trial shall be by a Jury of women and the writ for it is called A writ De Ventre inspiâ—endo CHAP. 47. A writ of Errour False Judgment Attaint Audita Querela I. THe new originals in the nature of judicial writs to undo some matters concerning Judgements are either writs grounded upon Errour or an Attaint and Audita querela II. Writs grounded upon Errour are a writ of Errour and false Judgment III. Both these lie upon any errour in the proceeding IV. But errour in processe may the same term be reformed in the same Court V. The processe here is a Scire facias VI. The party bringing a writ to reverse errour in the Judgment may have a super-sedeas to stay execution till the errour be discussed VII A Writ of Errour is upon an errour in a Court of Record VIII This may be sued in the Kings Bench or Parliament IX In the Kings Bench when the errour is in the Common place or other inferior Court of Record X In the parliament when the errour is in the Kings Bench and this is returnable before the King and the Lords onely XI A writ of false Judgement is upon errour in a base Court XII An Attaint is to enquire whether a Jurie of twelve men gave a false verdict XIII This must be brought in the life of him for whom it passeth and of some of them that gave it XIV It lieth onely in personal actions other then trespasses XV. The Jury here called the Grand-Jury are twenty four who are to be warned the first day XVI The processe against the party is summons re-summons as in Mortdancestor c. XVII The processe against the petty Jury is Venire facias and distresse XVIII The petty jury must be all present
regnum TABLE 40. The Proceeding which consists in The Count or Declaration The pleading which Pleas are The Defendants first Pleas viz. Dilatory by taking Exceptions In disability To the jurisdiction of the Court. To the person In Abatement To the Writ as default of form false Latine c. and here if the default be not caused by the Plaintiff a new Writ may be had by Journies Accounts To the Count as insufficiency variance from the Writ c. Forraign advantages In all Actions as Oyer of the Writ Condition c. In real Actions as View Ayde-prayer Voucher In certain personall Actions Garnishment Enter pleader which may also be in a Quare impedit Sanctuary and there continuing viz. for Treason and other Capitall Offences To the action as Pleas in Bar Confessions to which place Abjuration may be referred when one guilty of bare Felony flyeth to the Church c and there before the Coroner confesseth the Fact and abjures the Realm The mutual pleas of Plaintiff Defen Tab 41 Other mean Acts Tab 42. TABLE 41. The mutual Pleas of Plaintif and Defendant viz. The delating before issue as Replication Rejoynder Sur-rejoynder c. The Issue it self Of the Fact and then the tryall is 1 Of a matter done in the Country by Jury where challenges are allowed viz. To the Array To the Poles 2 In Writs of right or appeals for life by Battail 3. In a Writ of Dower when the issue is taken upon the death of her husband by witnesse 4. By wager of Law 1. When the Tenant in a reall praecipe quod readâ— was not summoned 2. In meer personal actions growing without deed or privity of others 3. In Plaints in Counâ— Barons Of the Law as a Demurrer which iâ— when admitting the matters alledged either of them resteth in thâ— Judgment of the Law TABLE 42. Other mean Acts as 1. Apparance where of essoins which are Common as Essoine de mal venir Speciall 1. Of going beyond Sea 2. Of going ad terram Sanctam 3. Of the Kings Service 4. Demalo lecti 2. Continuance By Process Upon the Roll Dies datus Emparlance 3. Judiciall process A Mesne processe which is for any necessary act to be done as against Vouchee Prayee in aide also 1. Upon a fine levied to compell Attornment as 1 Per quae servitia 2. Quem redditum reddit 3. Quid juris clamat 2 In Petitions a Writ of search 3. In real praecipe upon a default petty Cape 4. Upon default after Voucher a petty Cape ad valentiam 5. In such as are for other Hereditaments upon default a distress 6. Against Jurors 1. A Venire facias 2. A Habeas Corpora 3. A Distress infinite Processe in nature of new Originals Tab 43. TABLE 43. Process in the nature of new Originalls they are Commandatory viz. such as command something to be done 1 Resummons Re-attachment 2 All certificatory Writs 3 A Certiorari to remove a Record into the Chancery 4. Writs to remove Suits By Writ as a Tolt to remove a Writ of right out of the Lords into the County-Court Pone to remove out of the Lords Court into the common place in all other causes By Plaint as a Recordare to remove Plaints in the County-Court Accedas ad curiam to remove Plâ—ints in a Court-Baron 5 A Miâ—timus to send a Record out of the Chancery into another Court of Record 6 A Procedendo to proceed in Suits 7 A Consultation to proceed in the Spirituall Court 8 A Writ of Main-prise to set one at liberty upon Bail 9 A Recaption for him whose Goods are distrained for the same thing 10. A Writ de Magna Assisa eligenda 11 A Certificate of Assise to Jurors to give a more perfect Verdict 12 A Proprietate probanda Prohibitory Writs Tab 45. TABLE 45. Prohibitory VVrits or Proces as 1. Prohibitions of this kind is an Indicavit 2. A Supersedeas of which kind are 1. A VVrit of Peace 2. A Libertate probanda 3. An Identitate nominis 3. Protections Cum clausula uolumus as Protectio quia profecturus Protectio quia moratur whither also may be referred Protectio quia in prisona 4. Essoine de malo lecti 5. A Ne admittas 6. A Quare incumbravit TABLE 46 Judgment which hath Judicial Writs belonging to it viz. Meer Judiciall and they are Such as lye within a year and a day after the Judgment In reall actions 1. Habere facias seisinam to puâ— him in possession upon a Free-hold recovered 2. A Writ to the Bishop to admit ones Clerk In personall Actions to have Execution of his Possessions as 1. Fieri facias to levy execution upon his Chattels 2. Levari facias to levie execution of the profiâ—â— of his Land and Chattels 3. Habere facias possessionem upon recovery of a term for years in aâ— Ejectione firmae c. 4. A Distringas for the Kings Amerciaments c. Bodily as Capias ad satisfacienduâ— Capias pro fine Regis Capias Utlagatum For the King A Scire facias to warn the Defendanâ— afteâ— a year upon recovery in real Actions to shew cause why the Plaintiff should not have Execution New Originals Tab. 47. TABLE 47. New Originals in the nature of Judiciall Writs to order some matters concerning Judgments and these are grounded Upon an Error A Writ of Error which is upon an Error in a Court of Record A VVrit of false Judgment which is upon an Error in a base Court Otherwise as Attaint which is to enquire whether a Jury of twelve men gave a false Verdict Audita querela which is for one being or to be in Execution to releive him upon good matter of discharge which he hath no means to plead A TABLE shewing the Pages in the English Copy of Sir Henry Finches Treatise of the Law from whence each Tablet takes it's beginning Table Page 1 77 2 95 3 106 4 111 5 116 6 130 7 134 8 155 9 159 10 164 11 167 12 184 13 190 14 198 15 205 16 These are taken out of the French Copy being omitted in the English 17 18 19 20 206 21 218 22 221 23 225 24 249 25 252 26 264 27 266 28 269 29 272 30 284 31 294 32 303 33 310 34 312 35 320 36 322 37 343 38 490 39 502 40 356 41 390 42 427 43 441 44 446 45 450 46 459 47 478 FINIS
Court of Pipowders is a Court of Record incident to Faires and Markets for all Actions arising there and the suit must at the same time be commenced LXI The King by commission under his Letters Patents may erect other Courts at his pleasure LXII Such were Justices in Eyre and such are Courts of Record in Corporations and other places by speciall Charter LXIII These are the Courts of Record a Court Baron is the Court of a common person LXIV This Court is for personal accompts under forty shillings LXV These cannot be kept oftner then every three weeks LXVI The processe here is by precept to the Bailiffe LXVII The Suitors are the Judges LXVIII A Court-Baron is the Lords or a County-Court LXIX The Lords Court is either of a particular Mannor or of an whole Hundred XXX The Hundred Court is that whereunto all the Inhabitants within the Hundred owe suit LXX The County Court which is incident to the Sheriffe and hath Jurisdiction over the whole County CHAP. 23 Suits Original Writs Petitions I. OF an Action there be two parts the suit and the judgment II. Suit is the parties dealing in the Action III. Here for their help they are allowed Counceâ— learned in the law IV. The Suit hath two parts the beginning and the proceeding V. The beginning is the proper duty of the Plaintiffe VI This also hath two parts the first matter of the suit and the originall processe VII The first matter of the suit must alwayes be brought into that County where the cause of Suiâ— groweth VIII The first matter of the suit is for every man by writ out of the Chancery or in Courts where writs lie not by Plaint or Bill for the King alone by Inquiry IX· In all of the first kinde the Plaintiffe must finde surety by some that will be his pledges to prosecute the suit X. And these may be either to the Officer or to the Court where the suit is XI A poor man in stead of sureties shal give his faith to prosecute it XII Writs that begin the suit are original or commissionall XIII Original which appoint the first Processe 〈◊〉 the Plaintiffe finde pledges returnable in the Kings Bench or Common Place XIV This must be true Latine and also formal XV. And it must expresse the name of Baptisme and Sir-name or in lieu thereof the name of dignity both of the Plaintiffe and Defendant XVI Where there be many of one name diversity of the names must be put by addition of Elder younger and the like XVII The Kings servants in his Court or others by special grace of the Chancellor may here be admitted to finde pledges in the Chancery XVIII Writs original are concerning Common pleas or appeals that concern life XIX Those that concern common pleas lie not for or against a feme covert without her husband XX. Many having or giving joyntly cause of Action may sue or be sued together in one XXI Severall Actions of one nature may be joyned in one originall with severall Praecipes or commandements to be executed XXII Here in place of action against the King Petition must be made unto him in the Chancery XXIII And that in case of hereditaments though the King have granted the same away XXIV Whereupon processe shall go out against the Grantee to maintain his title XXV But whilst personall things seised for the King remain in the Officers hands the party that hath right may sue the officer or disturb him to take the profits XXVI Petition is a supplication declaring the parties right where mention must be made of all the Kings title XXVII The writs which concern common pleas are Real or personal and they both are again Praecipes or Si fecerit te securum XXVIII A praecipe is that which willeth the Sheriffe to command the Defendant to do somewhat in certain that the Plaintiff sueth for which if he do not then to serve the first Process XXIX The form hereof is Praecipe A quod reddat B c. Et nisi fecerit c tunc summon c. XXX A Praecipe is a Praecipe quod reddat or a Praecipe quod faciat XXXI A Praecipe quod reddat which lieth for things in render XXXII A Praecipe quod faciat which lieth for things not in render viz. in Fesance as a Writ de consuâ—tudinibus servitiis secta ad molendinam c. or sufferance as a Quod permittat c. XXXIII A Si fecerit to securum is that which willeth the first process to be served without more ado XXXIV The form hereof is Si A fecerit te securum de clamore suo prosequendo tunc summon c. CHAP 24. Actions reall I. REall Actions where a Free-hold shall be recoveed are Possessory or in the right II. Possessory which are to recover a Possession III. In the right which are to recover a Possession mixt with the right IV. And both these mâ—y be of a possession or right in himself or descended from his Ancestor V Reall Actions in the right are either founded upon the right or for the meer right VI. Reall Actions where the Free-hold shall be recovered lye only against the Tenant of the Freehold VII With the Free-holder may be joyned in Action any having Title to enter CHAP. 25. Ad Terminum quem praeteriit Entry ad communem legem Causa Matrimonii praelocuti Dum fuit infra aetateÌ„ Dum fuit non compos mentis I. A Reall Praecipe quod reddat is that which is for reall things in render and it is a plea of land or other like Praecipe II. A plea of land which is for land or other such things in demesne III. Where land in certain is demanded it must alwayes be brought in a Ville or place known out of any Ville IV. A plea of land is a writ of entry or a writ shewing the demandants title V. A writ of entry is that which is to disprove the tenants possession by the means of his entry VI. Wherein tenant in fee-simple demanding of the possession of his Ancestor shall say in the writ Quod clamat esse Jus hereditatem suam VII A writ of entry is either against the first party or in the degrees VIII Against the first party when it is against him to whom the first alination was or that made the disseisin IX That in the degrees is in the per or in the per and cui X. In the per when he against whom it is brought cometh in immediatly under the first party as heire unto him ot by alienation from him XI In the per and cui when he against whom it is brought cometh in immediatly under the first parties heir or aliance XII Writs of entry grow either without wrong at the first or upon a wrong XIII Those without a wrong at the first are grounded upon a determination of the first estate or upon a disability in the person that made it XIV Upon a determination
c. xiii If on the defendants part then it is Et de hoc ponit se super recordum illud or super Patriam XIV Issue in a writ of Right cannot be joyned upon the meer right but by the party himself and this is called the joyning of the Mise XV. Where the Plaintiff in his his replication maketh title at large the Tenant may joyn issue upon the title by saying Veigne Assize sur le title and this is called a Pleading to the action at large XVI But in a personall action when the title of the Land cometh in question it lyeth not till issue ioyned and yet in that case it never lyeth for Tenant for life but only for tenant for years Bailiff c. XVII Aid in these actions shall be of the King before issue joyned onely XVIII This being a matter In fait viz. done in the country is tryable by the oath of twelve free and lawfull men of the same County indifferently chosen XIX Four of the Jury must be of the same Hundred XX. If the thing in issue lye in the notice of two severall counties and not of one only the Jury shall be made equall out of both XXI But upon an Indictment of an offence against the Crown the tryall shall never be by Joynder of Counties XXII But if the Defendant plead in any Action that the Plaintiff is a villeine regardant to a Mannor of his in in another County yet the same shall be tried in the County where the writ is brought XXIII Where a Peer of the Realm is party to the Action a Knight must be returned upon the Jury XXIV In a Court of Pipowders the tryall is by the Merchants XXV The Jury in a writ of Right is called the grand Assize being four Knights or others in default of Knights choosing of twelve unto them XXVI This Iury is called the Grand Assize because it alwaies consisteth of more then 12. viz. of 16. XXVII Upon tryall by Jury challenges are allowed for the parties if they will both to the Array to the Pols and are to be tryed by some of the jurors XXVIII If it be before any Iurors sworn the Court shall choose Triers but when any of the Iurors are sworn they must try it XXIX Challeng to the Array is when the Jury is not sufficiently impanelled XXX Upon iust cause of exception to the Sheriff afterwards to the Coroner the Court shall choose certain persons to return the jury who are called Esliors XXXI And then the parties shall never afterwards make any challenge to the array XXXII Challenge to the Poll is when any of the jurors are not fit to passe upon the triall XXIII This Challenge must be taken before the panell be perused and shall be tryed by two of the jurors chosen by the Court. XXXIV But Challenges that sound not in reproach of the juror shall be examined upon his Oath which is called examination upon Voire Dire XXXV He that challengeth the array if it passe against him or that he release it shall never challenge the polls without shewing cause presently which shall be tryed out of hand XXXVI After Challenge to a juror for one cause which passeth against the Challenger hee shall not challenge him for another XXXVII In Indictments and appeals of felony the defendant may challenge thirty five jurors without shewing cause and this is called a peremptory challenge XXXVIII When there lacketh some to fill the jury others of the same sort shall be taken till it be full and they are called a Tales XXXIX The Tales must be an even number and lesse then the principal Pannel as Decem Tales Octâ— Tales c. xl Every Tales must be of lesse number then the other as after an Octo Tales a sex Tales c. xli But in Indictments and appeals that touch life a Tales may be of a greater number then the principal pannel xlii The Jury being charged may neither eat noâ— drink but by leave of the Justices before their Verdict given xliii Doing so before they be agreed it maked their verdict void but after they are agreed it is onely finable XLIV The Jury upon arraignment acquitting onâ— that was found guilty of the death of a man upon an enquiry before the Coroners super visum corporis musâ— finde who did the fact XLV The Jury in an Assize of novel disseisin shalâ— inquire of the plea in abatement XLVI And therefore in such an Assize no plea iâ— abatement is answerable XLVII An Infant bringing an Assize if a matteâ— done in the same County be pleaded against him thâ— Jury shall inquire of all the circumstances XLVIII The like inquiry of the circumstanceâ— shall be if in an Assize brought against him he pleaâ— to the Assize at large XLIV If the tenant in a mordancester traversâ— any point of the writ yet the jury shall inquire of alâ— the points and any one found against the Demandanâ— abateth the writ L. For the better direction of the Jury in their verdict greater liberty is permitted in pleading a matteâ— doubtful in law LI. For somtimes a traverse may be omitted LII Sometimes also the speciall matter may bâ— pleaded together with the general issue LIII Likewise the Court may be abridged before verdict so as the original remain true LIV. After acquittal upon an appeal or indictment of felonie or treason he shall never be drawn in question for the same offence again LV. In writs of right and in appeals that touch life trial may be by battail at the defendants choice LVI The battail in a writ of right may be by Champions who must be freemen LVII Here the demandants Champion must have seen him or his ancestors in possession and thereof take his oath LVIII The battail in an appeal must be in proper person and therefore here the defendant is restrained from the choise of Battail and must needs try it by Jury if there be any notorious presumption of the fact in him or imbecility in the Plaintiffe Also against a Peer of the Realm bringing an appeal the defendant shall not wage Battail LIX In a writ of Dower issue taken upon the death of her husband shall be tried by witnesses LX. In some cases also the trial shall be by the defendants oath as 1. Where the tenant in a Praecipe quod reddat alledgeth that he was lawfully summoned according to the law of the land 2. In meer personal contracts growing without deed or privitie of others the defendant may wage his law LXI Therefore in such kinde of actions executors are not chargable LXII No wager of Law shall be against the King LXIII But wager of law may be upon plaints in Court Barons for personal things under 40 Sh. LXIV An issue of Law returned a Demurrer is when admitting the matters alledged either of them resteth in the judgment of the Court. LXV The demurrer being joyned upon an exception to the original it self or Count for fault appearing in
these that follow first such as cmomande◠do somthing as III. Re-summons and Re-attachment to receive 〈◊〉 the former plight a suit put without day IV. These may either revive the original alone 〈◊〉 the whole proceeding by speciall words V. All certificatorie writs VI. Certiorari to remove a Record out of a Count 〈◊〉 Record into the Chancery VI. Writs to remove suit out of the Court Baron VIII These may be without shewing any cause the writ if the remove be at the Plaintiffes suit b◠not without shewing good cause in the writ if it be 〈◊〉 the defendants suit VIII These are to remove pleas by writ or by plaint IX Of the first sort are Tolt and Pone X. Tolt or Tollas is for the Plaintiffe to remove a writ of right out of the Lords Court into the County Court XI A Pone is to remove into the Common place in all other cases XII But a Pone to remove a Replevin by writ out of any other Court Baron then the County Court cannot be without shewing cause XIII Of the second sort are a Recordare and Accedas ad Curiam in both which nothing but the plaint shall be removed XIV A Recordare is to remove plaints in the County Court XV. An accedas ad Curiam is to remove plaints in any other Court Baron XVI This also upon good cause shewed in the writ lieth for a tenant to remove the plea in writ of right out of the Lords Court immediately into the Common place XVII A Mittimus to send a Record out of the Chancery into another Court of Record XVIII But the Chancelor may send such a Record by his own hands without any Mittimus if he please XIX A Procedendo to proceed in suits XX. Of this nature is a writ of consultation to proceed in the spirituall Court when one suing there for matters belonging to that Court is restrained to prosecute the suit XXI A writ of Mainprise to set at liberty one bailable finding bail to answer the action XXII Such persons bailable be they which are taken upon a Capias original XXIII But not the defendant in appeal of mayhem if the mayhem be heinous nor the principall in an indictment or appeal of felony nor the accessory after the attainder of the principall nor any in high Treason CHAP. 44. Other judicial Processe of the like nature I. A Writ of Recaption for him whose goods being distrained before for rent or services are distrained again for the same thing hanging the plea in the County Court or before the Justices II. A Writ de magna Assisa eligenda to the Sheriffe to summon four Knights to choose the Grand Assize when the Mise is joyned thereupon in a writ of right III. And this is a meer Judicial writ issuing out of the Common place when the Plea hangeth there IV. A Certificate of Assize upon an imperfect Verdect given in an Assize to bring in the same Jurors to give a more perfect one V. A proprietate probanda unto the Sheriffe to enquire whether the property be to the plaintiffe or defendant when upon a Replevin sued the defendant claimed property VI. And this also may be meer Judicial issuing o◠of the Kings Bench or Common place and returnabl◠there CHAP. 45. Prohibitory judicial processe in the nature of new Originals I SEcondly hither belong such Writs as are prohibitory or restrain from doing some thing where the prohibition it self is in lieu of a summons and after that the process is an Attachment and Distresse of this sort are II. Prohibitions to restrain the party from suing in an inferiour Court that ought not to hold plea of it III. Such a prohibition is an indicavit for the defendants Patron when the right of advowson in any part of ones tithes is in demand in a spirituall court between two Clerks claiming from severall Patrons IV. A Supersedeas to stay any further proceeding in a suit V. Of this nature are a writ of peace for the tenant upon a writ of Right brought in the Lords Court vouching one to warranty out of the power of that court which is called a Forraine Voucher or joyning the mise upon the grant Assize to have the matter respited untill the Justices in Eyre come thither which writ if he bring not after such voucher or mise joyned he looseth his tenancy VI. De libertate probanda for the Defendant upon a Nativo habendo in the County Court claiming to be frank to the Sheriff to adjourn the plea before the justices in Eyer VII Identitate nominis for one molested by a suit against another of the same name VIII Protections cum clausula volumus when the King in respect of the defendants being in his service taketh him into his protection for one year to be free from all suits IX Therefore such a protection shall for that time save all defaults X. Howbeit writs of Dower Quare impedit Assizes of novel disseisin and pleas before the Justices in Eyre are accepted XI This kinde of protection is double viz. Protectio quia profecturus when he is to go beyond sea in the Kings businesse XII And Protectio quia moratur when he stayeth there about it XIII Of this nature also is a protection quia in prisona when being sent beyond sea in the Kings wars he is there taken and detained in prison XIV The King may take his Creditor into his protection that no other Creditor shall sue or arrest him till the King be satisfied XV. He may also by a writ called Warrantia Dei rehearsing that one which should appear in proper person is in his service will that for one day no default be recorded upon him XVI Essoin de malo lecti which is a writ to warrant an Essoin of lying sick a bed cast by the tenant in a writ of right Commanding four Knights to see him and if he be sick to give him adjournment of a year and a day XVII A ne admittas for either partie in a Quare impedit or Assize of Darrein presentment to the Ordinary not to admit the others Clerk till the matter be discussed XVIII This writ must be sued within six moneths otherwise the Ordinary may present by lapse XIX A Quare incumbravit for him that sueth a Ne admittas and afterwards recovereth in a Quare impedit against the Ordinary for imcumbring the Church contrary to the Ne admittas CHAP. 46. The Judgment I. THus far of suit Judgment is the Courts final determination of the suit II. Upon judgment against the King in a petition he is presently out of possession III. In a writ of right the judgment after issue joyned is final on either side IV. Against the King judgment is not final but is alwayes with a Salvo jure Regis V Recovery in a writ of right bindes all strangers not claiming within a year VI. Tenant for life suffering a wrongful recovery it shall not prejudice his right that hath
seisin and damages and the plaintif shall be punished by Imprisonment at the discretion of the Iustices In like manner also shall the Iustices proceed in case the defendants proof is by deeds and releases for if the plaintif purchased the Assize contrary to his own deed he shall be punisht as aforesaid Stat. 7. R. 1. 10. An Assize of novel disseisin for 〈◊〉 issuing out of Lands in divers Counties shall be takeâ— in confinio comitatus as is used for Common of Pasâ—â—â— in one County appendant to tenements in another Stat. 1. H 4. 8. A speciall Assize is maintainable by the disseisee for such lands as are granted by the King patent without title first found by inquest for thâ— King without suit to be made to the King in that behalfe And if the pattentee pray in Aide of the King a procedendo shall also be granted without suit Here 〈◊〉 the Assize passe for the disseises he shall recover 〈◊〉 damages against the patentee Stat. H. 4. 8. If any make forcible entry into land by way of maintenance the Chancellor of England shall grant a special Assize without suing to the King and if the disseisor shall be attainted thereof he shaâ— suffer one whole yeares imprisonment and restorâ— double damages to the party grieved Stat. 21. H. 8. 3. The plaintif in Assize may abridgâ— his plaint of any part whereunto a bar is pleaded without prejudice to the residue Merton 3. 20. H. 3. A man disseised recovering his seisin by Assize of novel disseisin or confession of the party and having the same delivered him by the Sherif if he be again disseised of the same tenements by the same disseisor he shall have a writ of redisseisin to command the Sherif taking with him the Keeper of the pleas of the Crown and other Knights in proper person to go to the land c. and by the first Iurors or other lawfull men to make inquiry Howbeit this must not be without speciall commandment of the King The redisseisor shall be imprisoned Marlbr 8 52. H. 3 And not delivered without special command of the King and payment of a Fine Westm 2. 8. 13. E. 1. Writs of redisseisin must be inrolled in the Chancery and transcripts thereof shall be sent into the Exchequer Westm 2. 26. A writ of Redisseisin shall lie for them-that have recovered by default reddition or otherwise without recognition of assizes or Iuries The redisseisor shall answer double damages and not be reprevisable by common writ Rule 8. Westm 2. 24. 13. E. 1. Giveth an assize of nusance against him to whom the tenement is alienated after the nusance is made Stat. 6. R. 2. 3. The Plaintif if he will may have a writ of nusance in the nature of an Assise determinable before the Iustices or before the Iustices of Assize Rule 9. Magn. Cart. 12. Vide suprae Rule 2. Marlb 16. 52. H. 3. If the Lord will not render unto the heir the land when he comes to age without plea the heir shall recover his land by an Assize of Mortdancestor together with all his damages West 2. 4. 13 E. 1. If a woman haveing no right recover Dower against a Guardian the heir at full age shall have a Mortdancester aginst her Glocester 3. The heir shall have an Assize of Mortdancester if the tenant by eouttesie alien and leasâ— no Assets Glocester 6. All the heirs whereof one is Son oâ— Daughter Brother or Sister Nephew or Niece and the other in a further degree shall joyne in a Mortdancester Rule 10. Mag. Cart. 13. An Assize of Darrein presentment shall be alwayes taken before the Iustice of the Common place Rule 1â— Westm 2 24 13. E. 1. A writ of Juris utrâ—â— shall be granted to try whether free almes belong to one Church or another in case where they are transferred from one Church to another Rule 13. Stat. 31. H. 8 1. Iointenants and tenants in Common of an estate of Inheritance in their owne right or in the right of their wives in any Mannors Land c. may be compelled to make partition by writ de partitione facienda as Coparceners are compellable to do and afterwards shall have aid to deraigne the Warranty paramount and to recover pro rata as Coparceners after partition should Stat 32. H 8. 32. Iointenants and tenants in common that hold for life or years amongst themselves 〈◊〉 with others that have Inheritance or freehold in any Mannors lands c shall also be compelled to make partition by the said writ to be pursued upon their case Howbeit such partition shall not be prejudicial to any but the parties to such partition their executors and assignes CHAP. 31. Rule 3. STat. 9. E. 3. Stat. 1. 3. In a writ of debt brought against divers executors they shall have but one Essoine before appearance and another after appearance he or they that do first appeare in the Court at the grand distresse shall answer to the Plaintiffe and the plaintif if it passe for him shall have judgment and execution of the goods of the Testator against all named in the writ as well as if they had all pleaded Rule 7. Mag. Cart. 8. 9. H. 3. The pledges shall be free so long as the principal debtor is sufficient And they answering the debt shall have the lands and rents of the principall untill they be satisfied but note that this is meant of the Kings debtor Stat. 1 R. 2. 12. No Warden of the Fleet shall suffer any prisoner in execution to go out of prison by Mainprize Bail or Baston without making gree with the party unlesse by writ or other commandement of the King upon pain to lose his Office and the Creditor to have a writ of debt against him Stat. 23 H. 6. 10. Every Obligation taken by a Sheriff or his Ministers by colour of their office of any peâ—son in their Ward by course of Law shall be by the name of their office and upon condition that the prisoner appeared at the day and place mentioned in his Writ Bill or Warrant an Obligation in any other forme taken is void Stat. 32. H. 8 37. The Executors and Administrators of him that hath any rent or fee-farm in fee-simple fee-tail or for life shall have an Action of debt for the arrerages in the Testators life time against the tenants that should then have paid it or may distreine and make avowrie upon their matter in the lands so long as they remaine in the possession of the said tenant or of any claiming onely from him A husband seised of any such estate in any rent or fee-farm in his wives right shall after her death himself also his executors or administrators have the same remedy for arrerages due in her life So likewise of him his executors or administrators that hath a rent or fee-farme during anothers life and Cesty qui viâ— dye the same being unpaid Rule 9. Stat. 13. El. 4. The lands profits and hereditaments of
Sheriffe Rule 30. Westm 1. 17. 13. E. 1. the Sheriffe or Bailifâ—â— may take the power of the County or Baliwick and beat down a Castel or Fortresse where such beasts are inclosed if he that took them will not make deliverance Rule 33. Westm 2. 11. 13. E. 1. Processe of Outlawrie given in an action of accompt Stat. 25. E. 3. Stat 5. 17. Such processe shall be made in a writ of debt and detinue of Chattells and taking of beasts by Capias Exigent as is now used in a writ of accompt Stat. 7. H. 5. 1. In writ against forgers of false charters and muniments like processe shall be made by Capias Exigent as in writs of trespasse Stat. 19. H. 7. 9. Like processe given in actions upon the case sued in the Kings Bench and Common place as in actions of trespasse and debt Stat. 23. H. 8. 14. Like processe shall be had in every action brought upon the statute of 5 R. 2. 7. concerning forcible entry as in trespasse and like processe in every writ of annuity and covenant as in debt CHAP. 38 Rule STat. 25. H. 8 20 for the election nomination presentation investing and consecrating of Arch Bishops and Bishops Rule 32. Stat. 5. R. 2. 2. Prohibits going beyond sâ—â— without licence but it is repealed by 4. Ja. 1. Rule 35. Stat. Carlile 15. E. 2. The Dedimus potestatem shall be directed to two of the Justices or to one Justice and a Knight CHAP. 39. Rule 5. GLocester 5. 6. E. 1. An Action of waste is maintainable aginst tenant by the courtesie in dower for life or years and the party attainted thereof shall lose the thing wasted and recompence the party grieved thrice so much as such waste shall be taxed at Westm 2. 14. 13. E. 1. the processes in a writ of waste shall be summons attachment and distresse and if he come not then a writ unto the Sheriffe taking with him 12 men to go to the place wasted aed there enquire of the waste and upon that waste returned judgement shall be Stat. 11. H. 6. 5. Where the tenants grant over his estate but notwithstanding takes the profits and commits waste an action lies against him Magn Cart. 4. 9. H. 3. The Guardian may not commit waste in pain to lose the Wardship And Cap. 5. must repaire and sustain the houses of the profit of the land Glocester 5 6. E. 1. If the Guardian commit waste and the Wardship lost answers not the damages before the heires age he shall render damages to the heir otherwise Artic. super Cart. 18. 28. E. 1. An Escheator committing Waste upon Wards lands shall answer damages Stat. 36. E. 1. Stat. 1. 13. The heir shall have an action of waste against the Escheator committing waste as well within age as when he is at full age See also 14. E. 3. 13. Westm 2. 22. 13. E. 1. A writ of waste is given for one Jointenant or tenant in common against another wherein the defendant is to be at his choise to take his part in certain and then to have for his part the place wasted or to agree from thenceforth to take nothing more then his Companions do Glocester 13 6 E. 1. Hanging a plea by writ the tenant may not commit waste nor estrepment of the land in demand and if he do the demandant may have awrit to cause the land to be kept that no wast nor estrepment be done CHAP. 40 Rule 2. 36 E 3. 15. Declarations shall be good enough if they have matter of substance though the termes be not apt Rule 10 Westm 1. 46. If a writ of novel disseisin be purchased and the disseisor die before the Assize be pasesed the plaintiffe shall have a writ of entry sur disseisiâ— against his heir The like shall the heir of the disseisin have in case he die c. The nonage of the heir of the disseisor or disseisee shall not prejudice in an Assize If the Inquest pass against the heir of the disseisee he shall have an Attaint gratis Glocester 2. 6 E. 1. Where an Infant is held from his Inheritance whereby he is driven to his writ the Inquest shall passe notwithstanding his non-age Exposition of the Stat of Glocester 26. E. 1. Touching an Enquest to be made for an Infant that Statute shal run without limitation of time Westm 2. 40 13. E. 1. The suit of a woman or her heir in a Cui in vita or a sur Cui in vita after the death of her husband shall not be delayed by minority of the heir who ought to warrant the land Rule 31. Westm 2. 42. Certain cases wherein vieâ— shall not be granted Stat. de visu terrae Essoyne de servitio Domini Regis 12. E. View shall be granted in a writ of Ward in a writ of Customes and services in a writ of Advowson of a Church where there be more Churches then one in a Town and all of one Saint in a writ of Dower and in a nuper obiit Rule 32. West 2 3. The reversioner may be received in default of tenant for life dower curtesie c. If Judgment be given by reddition or default the reversioner shall have a writ of entry after the death of the Terâ—or so shall the heir also where the tenant was tenant in tail Stat de defensione Juris 20. E. The reversioner desiring to be received before judgment shal finde surety as the Court shall allow to answer the value of the issues of the tenant from the day of the receit till judgement if it passe for the demandant Sta. 13. R. 2. 17. The like receit shal be for the reversione upon the faint pleading of such a tenant and he shall plead in chief without delay and the Judges by discretion shall give dayes of grace between the demandant and him that is received without giving the Common day in plea of land unlesse it be by the demandants assent Surety for the value shall be found as before in 20. El. as well where the receit is counter pleaded as where it is granted Glocester 11. Tenant for years shall be received before judgment rendred to say that the Action was by Covin Westm 2. 3 Receipt is given to the Wife in her Husbands life time if he lose her land by default and the tenant that recovered against the husband must maintain his own right Rule 33. Westm 1. 39. What Counter-pleaders are good in Mortdancestor nuper obiit Intrusion and such like actions and also in writs of Entry in the degrees c. See also Stat. de vocat ad warrant 20. E. 1. 1. 4. E. 1. 18. Westm 2. 6. Rule 48. After Sanctuaries were taken away for sundry offences by divers Statutes at last by the Statute of 21 Jac. 28 They were totally annulled Rule 5 3. Glocester 3. The heir shall not be barred of his Mothers Inheritance by the Warranty of the father being tenant by courtesie or alienation without
fine in the Mothers life time excepe he leave Assets Rule 68. Westm 1. 12. Notorious Felons which will not put themselves upon an Inquest at the Kings suite against them shal be put to a pain for t dure as those that refuse to be tried by the law of the Land Rule 70. The Statutes that concern Abjuration are Stat. de Artic. Cler. 10. and 15. 21. H. 8 2. 21. 2. 8 12. 24. but Sanctuaries being taken away that is now also out of use CHAP. 41. Rule 18. WEstm 2. 38. In an Assize there shal be but 14 summoned And men of the age of 70 years continually languishing or sick at the time of the summons shall not be put upon Juries Artic. super Cart. 9 34. E. 3. 4 Juries shall be made of the next people of the Countie Stat. 11. H. 6. 1. None dwelling in Stews shall be of a Jury Stat. 9. E. 3. 5. A Deed pleaded in a Franchise shall be tryed in the County where the action is brought Stat. 2. 3. E. 6. 24. Upon a stroke or poyson in one Countie the party dying in another an indictment and triall may be in the County where he dieth and also an appeal sued there and tryed by 12 men of the same County Likewise the accessories in one County to a murder or felonie in another County shal be indicted arreigned c. in the County where the offence of accessorie is committed Stat. 33. H. 8. 20. The indictment and triall of Lunaticks confessing treason c. Stat. 33. H. 8. 23. The triall of Treason c. confessed before the Lords of the Counsel shal be by commission out of the Chancery Stat. 27 H. 8. 4. and 28. H. 8. 13. Treason Felonie c. commited within the Admirals jurisdiction shall be heard and determined by commission directed to the Admirall and three or four others c. Stat. 32. H. 8. 4. Treasons and misprisions of Treason in wales shall be tried there by such Commissioners as the King shall appoint Stat. 35. H. 8. 2. Treason c. committed out of England shall be tried in the Kings Bench or by Commisssioners c. Stat. 1. 2. P. M. 10. Trials for Treason shall be according to the course of the Common Law Stat 23. E. 33. No Indictors shall be put on Inquests upon the deliverance of Indictees of Felonies or Trespass westm 2. 38 None shall be put in Assize or juries triable in their own County but such as have 20 s. per annum free-hold nor in Assize c. triable out of their County unless they have 40 s. per annum c. Stat. de ponend in Assis 21. E. 1. None shll he put in Assize out of their County unless they have 5 l. per annum now within their County unless they have 40 s. per annum Stat. 2. H. 5 3 Upon triall for the death of a man and betwixt party and party when the debt or damages amount to 40 Marks he shall have 40 s. per annum Stat. 33. H. 8.13 In Corporations 40 l. in good sufficeth Stat. 2. E. 6 32. The 40 s. yearly value must be inferred in the Venire facias Stat 27. El. 6. Such a Jurour shall have 3 l. yearly value Howbeit these two lost Statutes extend not to Corporations Stat. 27. El. 7. The Jurour shall be returned by some addition whereby he may be known Stat. 8. H 4 3. every Jurour returned within the County of Middlesex shall be called the fourth day of the return Stat. 5. E. 3. 10. An Ambidexter shall never be of a Jury more Stat. 34. E. 3. 8. The party or any stranger may sâ—â— him for it Stat. 38 E. 3 12. And both the Jurours and the Embraceours being thereof attaint shall pay ten times so much as they have taken Westm 2. 30. when and how Assizes c. shall be taken in the Country See also Statutum de finibus levatis 4. 21 E. 1. That Enquests thereof being taken shall be returned into the Bench and there judgment shal be given thereupon c Stat. Eberac 3. 12. E. 2. Enquests in Pleas of Land that require too great examination shal be taken iâ— Country before a Justice of the place whe e the plea depends and a Knight there or other c. Stat. 42. E. 3. 11. Nisiprius shall not be granted before the name of the Jurours returned Stat. 14. E 3. 16. The directing of Nisi Prius to be tried in the Countrey Stat. 18 El. 12. Trial of Nisi Prius for Middlesex iâ— the term time or 4 dayes after Rule 19. Stat. â—5 H 8 6. Made perpetual 2 E. 6. 3â— Six sufficient Hundreders shal be returned upon everâ— Jury Stat. 27. El. 6. If two sufficient Hundreders appear in any personal Action it sufficeth Rule 20. Stat. 7. R. 2. 10. An Assize of novel disseisin of rent issuing of tenements in divers Counties shall be in the Confines of the said Counties Rule 22. Stat. 28. E. 3. 3. confirmed by 8. H. 6. 28. In every suit between an alien and a Denizen though the King be a party the one halfe of a Jury shall be Aliens if there be so many in that Visne and if there be not so many then so many as be there not parties Rule 23. Mag Cart. 29 A Peer of the Realm upon an Indictment of Felony or Treason shall be tried by his Peers Stat. 20. H. 6. 9. Duchesses Baronesses Countesses c. sole or married shall be tried in such cases as Peers of the Realm Rule 37. Stat. 22 H. 8. 14. No person arraigned for petty Treason Murder or Felony shall be admitted to any peremptory Challenge above the number of twenty Rule 38. Stat. 35. H. 8. 6. made perpetual 2. E. 6. 32 A Tales may be made up before the Justices of Assize or Nisi prius of able persons of the same County then present at the prayer of the plaintiffe or demandant Stat. 4. 5. P. M. 7. So likewise for the King upon request by any authorized thereunto or assigned by the Court or by the Informer that followes as well for the King as for himselfe Stat. 14. El. 9. Such a Tales de circumstantibus shall be also granted at the prayer of the defendant or Advowant Rule 53. Stat. 21. H. 8. 3. The demand of a thing intire may be abridged before Verdict though thereby the writ become false Rule 60. Magn. Cart. 28. Wager of Law shall not be addmitted without credible witnesses Stat 5. H. 4 8. In actions of debt upon arrerages of accompt faining to the Intent to put the defendants from their law that the same was found before their Apprentices or Servants Auditors assigned therein it shall be in the Judges discretion upon examination of the Attorneis or whom else they please to receive the defendants to their law or else to try the same by Enquest CHAP. 42. Rule 10 c. WEstm 2. 12. In an appeal of the death of