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.
County of Y. there held c. the aforesaid I. H. and the rest of the Defendants within named the fifth time exacted were at which day the aforesaid I. H. appeared and rendred himselfe to the prison of his Highness c. of the Castle of Y. whose body before the Iustices within written at the day and place within contained ready I have as within to me is commanded but the rest of the Defendants within named appeared not therefore c. as above And besides I. S. who hath rendred himself to the prison of c. of the Castle of Y. whose body before the Justices within written at the day and place within contained ready I have as this Writ exacteth and requireth And besides I. C. who dead is will not appear therefore by Judgement c. and the aforesaid T. C. waved is in presence of T. C. and F. W. Coronors of c. of the County aforesaid At the County c. 1. 2. 3. 4. exacted he was and hath appeared and rendred himself to the prison of c. of the Castle of Y. where so sick he is that fore fear of death him before the Justices within written at the day and place within contained have I cannot The Return of the Writ of Proclamation BY vertue of this Writ to me directed at my County of Y. held at the castle of Y. within written on Monday c. the year c. within written the first time to be proclaimed I caused And at my County of Y. held at the Castle of Y. aforesaid in the said County of Y. on Monday c. the year c. within written the second time to be proclaimed I caused as also at the general Sessions of the peace held at Skipton for the West riding of the said County within written on Tuesday viz. the 12. day of Sept. aforesaid the year c. within written publickly to be proclaimed I caused that I. C. and all other the Defendants within named themselves to render to the within named Sheriffs of London so that the same Sheriffs have their bodies before the Justices within written at the day and place within contained as this Writ exacteth and requireth The manner of proceeding upon the Writs of Recordare Pone Writ of False Judgment c. in the Common Pleas after removall out of the County Court YOu must repair to the County Clerk or his Deputy and demand a Return of the Writ of Recordare or Pone If upon the return the Defendant appear then must you declare and when your Declaration is drawn enter it upon a roll in one of the Prothonotaries offices and see that it be docqueted together with the number of the roll If the Writ be returnable in the begining of a term especially in issuable terms the Desendant is to answer the same term unless the Desendant hath Emparlance to plead until the following term Rules to answer must be entred in the Remembrance in the Prothonotaries Office entring in the Margent or over the head of the Rule that if the Defendant do not plead within some few dayes let Judgement be entred And if no plea be brought in within the time then may you sign Judgement with the Prothonotary in default of answer If the Defendant appear not upon the return of the Writ then may the Plaintiff have a Procedendo to carry the cause back again into the County Court If the Plaintiffs Attorney declare not against the Desendant upon his appearance within a reasonable time of the Term then may the Defendants Attorney enter a Rule in the Bill of Pleas against the Plaintiff to declare and if he declare not then may he enter a Non prosec and sign it with the Prothonotary and costs given for the unjust vexation If the Defendant plead generall issue then must the Attorney for the Defendant set his hand to the Doquet book of the Plaintiffs Attorney who draws up the plea and makes a Copy of the issue and delivers it to the Defendants Attorney and then they usually give notice of triall If the Defendant plead specially he is to bring it to the Plaintiffs Attorney under a Serjeants hand and if the Plaintiff reply specially it must likewise be under the Serjeants hand the like upon a Demurrer to a Declaration and Rejoynder in Demurrer If your triall be by Nisi prius at the Assizes in the Countrey and the Jury appeare not full upon the Pannel then may you require a Decem tales de circumstantibus viz. ten of the standers by to fill up the Jury or more or lesse as is requisite which Tales must be mentioned upon the return of the Postea and the Judgment upon it in the Issue Roll. Having entred your Declaration with the Issue joyned in the Prothonotaries Office then make out a Venire facias upon your Issue and get signed with the Prothonotary and seal it then get it returned by the Sheriff of the County where the action is laid and upon the return of it sue forth an Habeas corpora and deliver the same to the Sheriff to summon the Jury and get it returned before the Assizes In suing forth your Nisi prius ingrosse your Record according to the copy of the Issue made up and the entry of it upon the Roll in the Prothonotaries Office and examine it if it be upon an Issue joyned the same Term whose hand must be to it then carry the same to the Clerk of the Treasury to signe and make up the Record If the Issue was entred of a Term past then must you deliver the paper Book of the Issue to the Clerk of the Treasury to examine the same by the Roll and to make up the Record which must be signed by him then must it be sealed with the Lord chief Iustice of the Court and then deliver it together with the Hab Corp Iur. returned by the Sheriff to the Clark of the Ass for that County where it is to be tried paying the Judges Then retain Councel and have your witnesses ready for the trial The triall being had and verdict passing for your Client the next Term you are to call of the Clerk of the Assizes for a return of the Postea and thereupon the Prothonotor will assesse costs and cause Judgement to be entred upon which you may have Execution by Capias ad satisfaciendum Fieri facias or Elegit c. according as you desire and as the nature of the action brought doth allow or require Note that a Capias ad satisfac is only against the body who must be imprisoned until satisfaction be made and if the Defendant cannot be found the Plaintiff cannot have another Execution 20 E. 2. for he may chufe at the first whether he will have a Capias or an Elegit but if he take the Capias he shall not have the Elegit afterwards nec è converso 15. H. 7. 15. The Writ of Fieri
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
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
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
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
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
plaint and in his executed and assigned from the beginning of the World until the day of the date of the said Bill and this c. if Judgement c. Replication THe Plaintiff saith that he ought not to be barred c. because he saith that the aforesaid Bill of acquittance is not his deed and this he prayeth c. Justification of scandalous Words ANd c. when c. and saith that the said G L. his action aforesaid against him ought not to have for that he saith that before the speaking of the pretended scandalous words in the said declaration mentioned that is to say the day year c. at c the said G L. one Wether-sheep to the value of 10 s of c. of the goods and chattels of the said H. A. in the said Declaration mentioned then and there being sound feloniously did steal take and carry away contrary to the publick peace By reason whereof the said P. G. afterwards that is to say the said day year c. at c. the pretended scandalous words in the said Declaration mentioned did say affirm and declare to the said G. L. that is to say thou meaning the said G. L. art a Thiefe and stole H. A.'s Sheep and this he is ready to verifie whereupon he demandeth Judgement if the said G L. his action aforesaid against him ought to have c. Tender of amends in Replevin AND the said H. saith c. the just taking of c. ought not to avow because he saith that after the aforesaid time of the taking of the Cattel aforesaid in the aforesaid place in which c. und before the day of the issuing forth of the precept of Replevin of him the said H. that is to say the day year c. aforesaid at W. aforesaid he the said H. offered 12 d. to pay the said W. and I. to the use of the said W. for the damage of the said W. which he sustained by occasion of the trespass aforesaid which the cattel aforesaid in the aforesaid two acres of Land made which said 12 d. were sufficient amends for the trespass aforesaid which the cattel aforesaid in the said two acres of Land made which said 12 d. the aforesaid W. and I. then and there wholly refused to receive of the said H. and this c. Part of the debt paid The residue tendred before Suit and refused ANd c. when c. and saith that the aforesaid I. G. ought not to have or maintain his said action against him because he saith that the said I. A. the day year c. before the beginning of this action well and faithfully paid to the said I. G. 20 s. part of the above mentioned debt in the said Declaration specified that is to say at B. aforesaid and within the jurisdiction of this Court And as to the five shillings six pence the residue of the debt in the said Declaration specified the said I. A. further saith that he afterwards that is to say the day year c. abovesaid before the commencement of this action at B. aforesaid tendred to the said I. G. the said five shillings six pence which said five shillings six pence the said I. G. then and there refused to accept of and this the said I. A. is ready to prove and demands Judgment of the Court if the said I. A. ought to have his said action against him c. Replication ANd the said I. G. as to the plea of the said I. A. as to the said 20 s. parcel of the debt aforesaid saith that he by any thing before alledged ought not to be barred from having his said action against him for he saith that the said I. A. did not pay the said twenty shillings to the said I. G. as the said I. A. above hath alledged and this he prayes may be inquired of by the Countrey and the said I. A. likewise c. And as the said plea of the said I. A as to the said 5 s. 6 d. residue of the said Debt and the said I. G. saith that the same plea of the said I. A. in manner and aforesaid pleaded and the matter therein contained is insufficient in the Law to bar the said I. G. from having his said action against the said I. A. and that he to the plea aforesaid in manner and form aforesaid pleaded needeth not nor is bound by the Law of the Land to answer whereupon for want of a sufficient plea in this behalf the said I. G. prayeth Judgment and the said 5 s. 6 d. residue of his debt aforesaid together with his damages by reason of the detaining of that debt to him to be adjudged c. Not his Deed. ANd c. when c. And saith that he ought not to be charged with the said debt by vertue of the writing aforesaid because he saith that the said writing is not his Deed. And of this he putteth himselfe upon the Countrey And the said A. likewise c. By threats ANd c. when c. And saith that the said A. ought not to have his said action against him because he saith that the said A. at the time of the making of the said writing at N. aforesaid did impose upon the said B. such so great threats of his life may ming of his body to be inflicted on him unless he would make and seal unto the said A. the said writing that he the said B. did then and there make unto the said A. the said writing for feare of those threats And this he is ready to aver whereupon he prayeth judgment if the said A. ought to have his said action against him c. Replication ANd the said A. saith he by any thing before alledged ought not to be barred from having his said action because he saith that the said B. at the time of the making of the said writing aforesaid was of his own power at large And did make to the said A. the said writing of his meer and voluntary will and not for fear of threats as the said B. hath above alledged And he prayeth that this may be inquired of by the Countrey And the said B. likewise c. By hardnesse of imprisonment ANd c. when c. And saith c. because he saith that at the time of making of the said writing he was imprisoned by the said A. and other of his Covin that is to say at N. aforesaid and there in prison detained until the same B. by force and hardnesse of that imprisonment had then and there made to the said A. the said writing And this he is ready to aver whereupon he prayeth Judgment c. Replication ANd the said A. saith that he c. because he saith that the said B. at the time of making of the said writing was of his own right at large and out of prison and did of his meer and
declared and this he is ready to verifie whereupon he prayes Judgement of the said Writ of Justicies and that the said Writ of Justicies be quashed c. Plea in Abatement for that the Plaintiff hath one name in the Writ and another in the Declaration ANd the said A. by I. R. his Attorney comes and prayes Judgment of the Writ of Justicies aforesaid because he saith that he is the same person against whom the said B hath brought his Writ aforesaid by the name of B. D. otherwise E. Yeoman and that the said B. is named John otherwise Henry and by the same name of B. D. otherwise E. the day of obtaining of the Writ of Iusticies of the said B. and alwayes afterterwards hitherto he hath been known and called and by the same name of B. D. otherwise against the said A. in his Declaration aforesaid now hath declared without that that the said B. is named or called Iohn otherwise Henry or by the same name of B. D. otherwise E. hath been at any time known or called and this he is ready to verifie whereupon he prayes Judgment of the writ of Iusticies aforesaid c. The Defendant justifies for horse-meat not satisfied in answer to a Declaration in Trover for the same horse ANd the said A. saith that he the same time in which the said horse in the Declaration aforesaid specified is supposed to come to his hands and by two years then next elapsed and ever afterwards and yet is a common Inn-keeper and holdeth a certain Inn called the George in the Parish and Town of Harwood in he said County of Y. and that one C. D. the twelfth day of August in the year aforesaid at the Parish and Town of the said H. came to the Common Inne of the said A. bringing with him the said horse into the said Inne which said horse the said C. D. the same twelfth day of August abovesaid untill the twenty fourth day of Iune in the year c. abovesaid in the Inne of the said A. remained at meat and that the said meat of the said A. eaten and consumed within the same Inne by the same horse between the said 12. day of August in the said year of c. and the said 24. day of Iune in the yeare aforesaid was worth eight pounds ten shillings of lawfull money of England And that no person within that time paid the said A. for the said meat neither compounded nor agreed with the said A. for the same whereupon certain L M. NO and others lawfull and honest persons the neighbors of the said A. and inhabiting and remaining within the said parish of H. in the County aforesaid at the request of the said A. afterwards to wit the 24. day of Iune abovesaid at the said Town and Parish of H. reasonably appraised the said horse at six pounds ten shillings and no more whereupon the said A. afterwards to wit the said 24. day of Iune in the year abovesaid at the aforesaid Town and Parish of H. retained that horse in his hands towards the satisfaction of the said A. for his meat aforesaid then and there did convert and dispose as it was lawfull for him to do with it without that that the said horse came to the hands of the said A. in the aforesaid County of L. or any other place without the said Town and Parish of H. in the said County of Y. as the said C D. above against him complaineth and this he is ready to verifie whereupon he prayeth Judgment if the Plaintiff his Action c. The Defendant pleads leave and liberty granted to him by the Plaintiff to enter and feed his Cattel ANd the said A. as to the aforesaid Trespasse as to the breaking of the Close aforesaid and the eating c. with his cattel c. and the treading c. with his feet above supposed to be done saith that the same B. before the same time in which c. to wit the 22. day of May in the year c. at Skipton aforesaid in the County aforesaid and within the liberty and jurisdiction of this Court gave liberty to the said A. into the tenements aforesaid with the appurtenances of new assigned to enter and put in his Cattel aforesaid the grasse in the tenements aforesaid with the appurtenances of new assigned then there growing to eat up By vertue of which said liberty the same Defendant the same time in which c. into the tenements aforesaid with the appurtenances in which c. entered and his Cattel aforesaid to eat the grasse there put And the same Cattle the same time in which c. by vertue of the liberty aforesaid the grasse aforesaid in the tenements aforesaid with the appurtenances did eat tread down and consume which said breaking of the Close aforesaid and eating treading down and consuming of the grasse aforesaid with the Cattel aforesaid in the tenements aforesaid with the appurtenances above newly assigned and the treading and consuming of the other grasse aforesaid in the same tenements with the feet walking by vertue of the liberty aforesaid and for the cause aforesaid in form as aforesaid done is the same breaking of the Close c. And this c. The Plaintiff replies de injuria propria and traverseth the liberty And the Desendant justifies he gave the liberty and issue thereupon The Defendant justifies in Replevin the taking of the Cattel for Rent in arrear ANd the said A B. by S D. his Attorney cometh and defendeth the force and injury when c. and doth well avouch the taking of the said Cattel in the said place in which c. And justly c. because he saith that the said place in which c. is and from the time of the said taking and before was four acres of Land in M. aforesaid and saith that long before the time of the said taking before supposed to be done and at the same time the said A B. was seized in his Demesne as of fee of one Messuage one Garden and four acres of Land and one acre of Wood with the appurtenances in M. aforesaid whereof the said place in which c. is And at the said time in which c. was parcel and so being thereof seized that same Messuage Garden Land and Wood with the appurtenances long before the time of the taking aforesaid that is to say at the Feast of the annunciation of our blessed Virgin Mary in the year c. at M. aforesaid demised unto the aforesaid C D. to have to him from the same Feast as long as it should please him the said A B. yielding therefore yearly unto the said A B. as long as the said C D. should have and ocupy the said Messuage Garden Land and Wood 30 s. at the Feast of St. Michael the Archangel and the annunciation of our blessed Virgin Mary by equal portions yearly to be paid by vertue of which demise 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.
to the Sheriffe to take a party and to enquire what Lands and Tenements he had and the Sheriffe findes by Inquisition that he is seised of many Lands and continues possession in them and the Sheriffe do out me I may have an Action of Trespasse against him Winch. fol. 78. Capias utlegatum enquiras de bonis catallis is a Writ of the same nature with the precedent but that it giveth a further power to the Sheriffe over and besides the apprehension of his body to enquire also of his goods and chattels Minsh fo 111. b. Capias ad Valentiam Is a VVrit of Execution and lyeth where the Tenant is impleaded of certain lands and he voucheth to warranty another against whom the summons Ad Warrantizandum hath beene awarded and the Vouchee cometh not in at the day given Then if the Demandant recover against the Tenant he shall have this Writ against the Vouchee and shall recover so much in value of the Vouchees Lands if he have so much And if he have not so much then the Tenant shall have Execution by this Writ of so much Lands and Tenements as descend to him in Fee-simple or if he purchase afterwards the Tenant shall have against him a Re-summons and if he can say nothing he shall recover the value Old Natura Brevium fol. 161 162. Termes of the Law 45 46. Fieri Facias what it is AFIERI FACIAS is a judiciall Writ and lyeth for him that hath recovered in an Action of Debt or Damage directed to the Sheriffe commanding him to levie the debt or damages of the Defendants goods it must be brought within the yeare and day This Writ hath beginning from West 2. Cap. 18. Anno 13 E. 1. Old Nat. Br. fol. 150. See great diversity thereof in the Table of the Register Judiciall Ver. Fieri Facias The Sheriffe or Bayliffe ought to be very cautious in executing this VVrit For if the Goods or Lease which shall be taken be the Goods of a stranger though they be found in the possession of the Defendant Yet if it be found upon Tryall that the Defendant hath no property in those Goods or Chattels then the Sheriffe or Bayliffe that executed that Writ shall be a trespasser to the right owner of the Goods and shall recover damage to the value of the Goods so taken with costs of suite although the Officer hath delivered them to the Plaintiffe in Execution Dalton office of Sheriffes fol. 60. Therefore the safest course for the Sheriffe or Bayliffe is not to take any goods in Execution unlesse they plainly appeare to them to be the proper goods of the Defenfendant For the Officer is bound at his perill to take knowledge whose Goods they be Ibidem If a Fieri Facias be awarded for twenty pounds to the Sheriffe upon which he takes an entire Chattell and sells it for forty pounds and returns the Fieri Farias with the twenty pounds in Court he may detaine the surplusage untill the Defendant comes to demand it of him for he is not obliged to search out the Defendant but if a Fieri fac be awarded for 40 s. by force of which the Sheriff takes five Oxen every one at the value of five pounds and sels them all the Defendant may have an action of Trespasse against the Sheriff Noy fol. 59. Woodby against Coles c. Sale by the Sheriff upon a Fieri fac shall stand albeit the judgment afterwards was reversed and the Plaintiff in it restored to the value Dyer 363. 24. Coo. 8. 76. b. Mat. Mannings case Upon a Judgement against an Executor or Administrator the Plaintiffe cannot have a Capias ad satisfaciendum against the body but a Fieri facias de bonis Testatoris and if the Sheriffe returne a Devastavit then a Capias ad satisfaciendum against the body or a Fieri facias de bonis propriis And if there be two Executors and the Sheriff réturns a Devastavit against one of them and he dies the other shall not be charged for that Devastavit for the one shall not prejudice the other but a gift by one of them is good against the other A Scire facias after the year for damages recovered in waste and a Nihil returned he shall not have an Elegit untill the tenants be warned but he may have a Fieri fac without warning of them 4 E. 3. 23. Execution 99. Old N. B. 168. The Sheriff returned upon a Fieri fac mandavi ballivo who said that he had seized to the value but he could not finde buyers and because the Court cannot send to the Sheriff to have the money here as they might upon his own extent therefore they awarded a Writ to the Sheriff to levy the money of the lands and goods of the Bayliff to the value of that which he had seized the same Law is upon a seizure of an ancient Sheriff 5 E. 3. Execution 101. Fieri fac for damages recovered in waste upon a Lease for years it was returned that the Lessee had no goods but the remnant of the same Lease and it was holden that by Sicut alias that the Sheriff might sell the Lease as well as pots and pans in the Execution for the Fieri facias is de terris catallis of the Lands and Chattels c. 19 E. 3. Execution 148. A Fieri fac to the Sheriffe to levy the expences of the Knights of the Parliament the Sheriff may sell the Beasts of one of the Hundred for the whole or the beasts of any person he shall finde within the precinct 11 H. 4. 2. Avowry 52. The Sheriffe returned upon a Fieri fac that he had levied the money and that he had the same in Court whereas he had not the money at the day and then a new Sheriff is chosen and because it was upon Record that the old Sheriffe had levied the money a Scire facias issued forth against him to pay it and if he cannot or will not otherwise discharge and pay the money the party shall have a Fieri fac or an Elegit against the Sheriffe of his proper goods c. 9 E. 4. 50. Scire fac 2. Mich 10. Jac. Upon a motion at the bar it was resolved that an obligation to the Sheriff upon a Fieri facias for the payment of the money in Court was not void by the Statute of 23 H. 6. cap 10. For the first branch of that Statute is that he shall let to bayl by Writ or Bill c. which he could not do before as appeares 19 H. 6. 43. The second shewes the form of the bond c. The third contains a penalty that if the Sheriffe take an Obligation in any other form c. than is there prescribed that it shall be void so that upon consideration of all the branches together and upon their coherence and dependance one upon another it plainly appears that the said
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
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
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
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
P. for the honour of P. the 12. day of June in the year of our Lord 1656. before I. H. T. H. I. G. and R. H. suicors of the said Court R. S. complains against I. N. of a plea of Trespasse upon the case to the damage of 30 s. By vertue of this Writ to me directed at the Court aforesaid holden the day and year abovesaid in full Court there to be recorded I have caused the plaint of which within is made mention which plaint doth appear above written and that Record I have returned sealed with my seal and the seals of the aforenamed four lawful men being in the said Court present at the said Record And to the parties within written I have prefixed the day in the Writ specified that then they be ready to proceed as just it may be in the said plaint as within to me is commanded W. O. Steward I. H. T. H. I. G. R. H. Suitors By vertue of this Writ to me directed in form within written I came to the Court within written and in that full Court to be recorded I caused the plea within written and the Record as it appeareth in a Schedule to this Writ annexed I have before the Justices at the day and place within contained under my seal and the seals of T. R. A. B. C. D. and E. F. four legal men of my Shire of those who at the Record present were and to the parties c. Or thus if the Record be not returned By vertue of this Writ to me directed and in my proper person having taken with me R. S. c. good and lawfull Knights of my County I came to the Court Baron of G. S. I. K. c. holden at P. for the Honour of P. to Record the Plea within written at the day and place within contained as within to me is commanded whereupon the Suitors of the Court aforesaid at P. aforesaid in full Court me the within written Sheriff the said Writ there to execute or as to the said plea in any manner to intermit altogether denied for which execution of the Writ aforesaid make I could not c. It is a good return for the Sheriff to say that after the receipt of the Writ and before the return thereof that no Court was holden and that also he required the Lord to hold his Court and he would not so as he could not execute the same The Return of a Writ for the Election of a Coroner after the death of another AT my County Court held such a day and year in full County aforesaid by vertue of this Writ of the assent of the same County in the place of R. O. within named who deceased is I have chosen a Coroner viz. I. M. who as the manner is hath taken his oath corporal that he will do and keep those things which to the office of a Coroner in the County aforesaid belong to be done as within c. The Return of the Writ of Exigent BY vertue of this writ to me directed at my County held at the Castle of Y. in the County of Y. within written on Monday c. the year c. within written I. C. and the rest of the Defendants within named if there be above two in the writ first were exacted and appeared not at my County of Y. there holden on Monday c. the year aforesaid the foresaid I. C. and the rest of the Defendants within named the second time were exacted and appeared not at my County of Y. there holden on Monday c. in the year aforesaid the said I. C. and the rest of the Defendants within named the third time were exacted and appeared not at my County of Y. there held on Monday c. in the year aforesaid the aforesaid I. C. and the rest of the Defendants within named the fourth time were exacted and appeared not At my County of Y. there held on Monday c. in the year aforesaid the aforesaid I. C. and the rest of the Defendants within named the fifth time were exacted and appeared not And therefore I. C. and the rest of the Defendants within named by Judgement of I W. and W. R. Gent. Coroners of the Common-wealth of the County aforesaid according to the Law and Custom of the Common-wealth of England outlawed are and every of them is outlawed I. B. Esquire Sheriff By vertue of this writ to me directed at my County held at Y. in the County of Y. within written on Monday c. in the year within written the said I. R. within named first exacted was and appeared not this Writ so above indorsed to be delivered was by I. B. Esquire late Sheriff of the County within written my next Predecessor in his going out from his office as above upon the back of this writ And at my County c. as before Or thus This Writ so above indorsed together with the Writ of Oliver Lord Protector of c. of Supersedeas to it annexed to me delivered was by I. B. Esquire late Sheriff of the aforesaid County my next Predecessor c. If it be against a woman she cannot be said to be outlawed for the reasons I shewed before but waved so that the latter part of the return must be thus viz. Therefore according to law and custom aforesaid B. D. waved is By vertue c. at my County held on Monday c. the said year c. within written the aforesaid I. C. the fifth time exacted was and appeared not and for defect of N. B. and R C Coroners of the County aforesaid further thereupon to prosecute I could not By vertue c. and at my County c. and that there were not more Counties in the County aforesaid held from the day of the receipt of this writ to the day of the rerurn of the same wherefore nothing done is at present Or thus And therefore in the Execution of this Writ further to be done nothing acted is By vertue c. of my County aforesaid held on Monday c. in the year c. within written the aforesaid C. D. the fourth time exacted was and appeared and brought forth to me the Writ of his Highnesse the Lord Protector of the Commonwealth of c. of Supersedeas which to this Writ annexed is wherefore the execution of this Writ further to be done I have superseded altogether Or thus As in the foresaid Writ of his Highnesse the Lord Protector of c. of Supersedeas to me is commanded Or thus As to exact take outlawed or at all molest the within named I. R. by vertue of this Writ to the Justices c. within written at the day and place within contained I certifie that by vertue of a certain other Writ of his Highnesse c. to me directed to this annexed I have superseded altogether as by that Writ to me is commanded By vertue c. at my
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
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
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
you must know that if one man wilfully kill another or if a man kill or drowne himselfe the first doth forfeit by that fact both his lands and his goods and the other forfeits but Goods and Chattels and no lands And if any homicide happen to be wilfull murther which offence cannot be too severely punished and therefore by the Law the offender hereon ought to lose both life lands and goods And if it be found Manslaughter if the Offender can read then he may in favour of his life by His Highnesse the LORD PROTECTOR's mercy have the benefit of his Clergy and so save his life but he shall forfeit both his Lands and Goods The Goods must be found apprised and valued of such offenders and left in the Town or Village where such offender dwelleth by them safely to be kept until the Offender be acquitted or convicted by due course of Law the interim the Offender must be maintained with his goods so as he may be kept alive to answer his fact and what shall remain when he is convicted those to whom such goods do belong by the Law must have them and not before and thereof discharge the Towne or Village which had the custody of such goods And as for the Offenders Free Land if he have any immediatly after Conviction His Highnesse must have annum diem vastum therein and after the Lord of whom it is holden shall have it as an Escheat Thus having in briefe declared these things incident to my office and to you to enquire of I will conclude therefore stand together and heare your Evidence 2. His Ministeriall power WE now come to his Ministeriall power wherein he hath authority as a Sheriffe c. that is when there is just exception taken to the Sheriffe judiciall processe shall be awarded to the Coroners for the execution of the Kings Writs in which cases he is locum tenens vice comitis and in some special cases the Kings original Writ shall be immediately directed unto him Estrepment judiciall was awarded out of the Court to the Coroners of the County of Westmerland in the action of Waste brought by the Earle of Cumberland against the Countesse Dowager because the Earle was Sheriffe of the same Shire by which Writ the Coroners were commanded to suffer no Waste to be done in the Lands c. And it was then said that the Coroner may provide against waste by taking posse Comitatus Hobert fol. 85. Cumberlands case Of the Coroners Fees THe Statute of 1 H. 8. cap. 7. prohibiteth a Coroner for taking any thing for doing his Office upon pain for every default forty shillings the like penalty where he giveth not his attendance when he is required to make inquisition upon the death of any dead Corpes c. Fitz. tit Coron fo 321. 371. A Coroner hath a fee appertains to his office viz. of every Visne one penny when they appeare before the Justices of Assize which see he receives not to do his Office but as a right due to him though he execute no part of his office By the 3 H. 7. He is to have upon an Indictment found of murther thirteen shillings foure pence of the goods of the Murtherer and if he hath nothing then of the amerciament of the Township for the escape c. Mirror cap. 1. Office of Coron Fleta lib. 1. cap. 18. Stamfords Pleas of the Crowne fol 48. 49. 50. Of Appeals APPEALE hath its Origen or Etimology of the French word Appeller signifying to accuse or appeach it is an accusation or of Appeller to call because appellans vocat reum in judicium he calleth the Defendant into judgement Co. super Lit. l. 2. c. 11. sect 189. l. 3. cap. 8. sect 500. Appeales are triplicate viz. 1. Of wrong to his Ancestor whose heir male he is and that is only of death 2. Of wrong to the Husband and is by the Wise onely of the death of her Husband to be prosecuted whilst she is a Widdow for if a woman who hath title of an Appeale of the death of her Husband takes another Husband he and the Wise shall not have an Appeale for the woman ought to have it sole for the cause of an Appeal is that she is indigent of her Husband and the reason is because the wife wanting a Husband is not so well able to live and therefore when she hath another Husband the Appeal is determined for cessante causa cessat effectus the cause ceasing the effect ceaseth Br. Appeal 109. as where a woman hath a Quarentine and she marries within the forty dayes she loses her Quarentine 1 Mar. 1. Br. Appeale 109. Dower 101. 3. Of wrongs done to the Appellants themselves as robbery rape and mayhem There shall none of the bloud make Appeale but the next Heire of the bloud that should have the Heritage by Law after the death of him that was slain If a man be slaine having no wife his wiâ—e shall be admitted to make appeale within a yeare and a day if he begin the Appeale but two dayes before the yeare be past it is as good as if it had beene at the beginning of the yeare If the wife begin not her Appeale within a yeare and a day after the death of her Husband she shall never afterwards be received to make an Appeale The Heir of a man killed shall have appeale as well of homicide of his Ancestor as of murther 2 E. 6. Br. appeale 122. If he that is attainted of Treason or selony be slaine by one that hath no authority in this case his eldest son can have no appeale for he must bring his appeale as heire which being ex provisione hominis he loseth it by the attainder of his Father but his wife shall have an appeale because she is to have her appeale as wife which she remaineth notwithstanding the attainder because Maris foeminae conjunctio est de jure naturae and therefore is indissoluble An appeale of Mayhme is in manner but a Trespasse for he shall recover but damages yet the Indictment shall say quod felonice mahemavit The Coroner receiveth at the County appeales of robbery and appeales of death whether it be for the wife of him that is dead or for his heire which appeale may be made at any County within a yeare and a day after the fact committed That is within a yeare and a day after the stroke and not the death Stamf. Co. 4. Report Cases of Appeales and Indict If a man make Appeale at the County it behoves him to be at the County in proper person to make his Appeal and he must finde sureties at the same County to pursue his Appeal and he shall have a day to the next County to pursue his Appeale and if the Plaintiff saile at the County of his appearance in proper person the Appeale is abated If a man make an Appeale and be non-suite in his
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
office how derived 279 When first established ibid. His office is duplicate viz. general and special 280 and 281 What person ought to be a Coroner and how qualified 281 282 283 Of the number of Coroners in each County 284 Of the power and jurisdiction of Coroners ibid. What persons are to be of the Coroners Inquest and how qualified 286 287 The Method of keeping the Coroners Court 287 288 289 290 291 292 293 His Ministerial power 294 His Fees ibid. Custome to pull downe houses and cut downe trees not good 368 Constables 327 Crossebows 337 Copiholder may not let longer then a year and a day 355 Copihold granted by a disseisor may be avoided by the disseisee 357 But admittance upon surrenders good ibid. None can passe a larger estate then he hath ibid. Copiholder What person is sufficient to be a Copiholder 358 What interest he hath in his estate ibid. 359 Husband to a woman Copiholder shall not be tenant by the Curtesie without speciall custome 360 The heire of a Copyholder not bound to come to any Court during his non-age ibid. Whether a Copyholder may lop trees ibid. Copyholders for life cannot claim custome to cut down and sell trees 361 No tenant by the Curtesie or Dower shall be of Copyhold lands 361 An estate taile cannot be of Copyhold lands without use ibid. Copyholder may assigne one to essoin for him but not to do his service 362 Copy-hold not extendable by Statute-Staple but it is upon the Statute of Bankrupts not lyable to any charge of the Lord 363 Common Nusance 327 Common Pownds 328 Common Barretors 331 Curriers 336 Court-Baron 349 How Court-Barons were first instituted 352 VVhat parts a Court-Baron doth consist of 338 Court-Baron cannot be separated from a Mannor 337 The difference between Court-Leet and Court-Baron 340 341 Of the time When and the place Where the Court is to be kept 342 The manner of keeping the Court ibid. and 343 344 The charge of the Court 345 D DUces tecum What 14 Declaration What it is 14 15 Modo forma 15 Demurrer what 18 Distress what good and What not 26 27 28 29 30 31 Ditches hedges and high-Wayes kept and scoured 330 Discontinuance one seized in the right of his wife surrenders it and dies no discontinuance to the wife 370 E ESsoin what it is 14 Execution in the County Court and What goods may be taken upon it and what not 32 33 34 Where the under Sheriffe justified the breaking of three doors to do execution 185 Elegit Where it lies 71 174 What it is 176 The Sheriffe may take a moyety of the Lands of the Conusor and all his goods and chattels and the valuation of the goods and lands must be found by inquisition ibid. He must return the extent and that he hath delivered the Lands 177 Term of years delivered in execution upon Elegit good and also rents ibid. The Sheriffe must return the moyety distinctly unlesse they be tenants in common ibid. He cannot deliver a Lease at another value then What the Iury had found it at ibid. Goods cannot be sold by the owner after the Teste of the Elegit ib. An execution valuable Without satisfaction ibid. VVhere a Cap. lies after an Elegit 178 Lands sold after judgement shall be liable to satisfie it ibid. Two Writs of Elegit delivered to the Sheriff at one time how to be executed ibid. Several Elegits may issue into Counties ibid. No Cap. ad sat nor fieri fac doth lie after an Elegit and why 179 An Elegit sued after one is taken for the Protetectors fine he shall go at large 181 Escapes 208 What an Escape is ibid. For felony it is felony in him that suffers the escape ibid. If a prisoner escape yet upon fresh suit and taken he shall be in execution ibid. One in execution cannot go out of the Goale though with the assent of the Sheriffe ibid. The Protector cannot command without Writ to free a man c. ibid. If the Sheriffe die and one breakes the Goale no escape 209 If a woman-Goaler marry a Prisoner adjudged an escape ibid. It is no escape if Prisoners be removed out of the County that they may be removed to another place within the same County but not for their ease for then it is an escape ibid. The Sheriff upon fresh suit may take a prisoner in another County ibid. No felony in the Goaler to kill a prisoner that attempteth to escape ibid. All that come into the Goale ought to be kept close and safe ibid. One taken upon a Cap. by a wrong name c. a Testat issued out against him by his right name and was taken in Execution and suffered him to escape and the Sheriffe was judged answerable for the escape 210 A mans wife taken in execution and suffered to go at large before the debt satisfied adjudged an escape ibid. A reprisall by fresh suit before the action brougt excusable but a reprisall after the action brought no excuse 211 212 213 Exigents and Proclamations to be proclaimed five County dayes 10 Extendi facias what 168 Election of 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 elegible and what not 218 Punishment of Sheriffes for their negligence in elections or returnes 219 Penalties on Counties and places for not electing ibid. Escape voluntary what 326 Escape negligent what ibid. Evesdroppers 338 Estrayes 340 F FEes to the County Clerke 54 To the Attorney in the County Court 55 To the Bayliffe for executing Processe out of the County Court 55 56 Fees of the Sheriff 221 222 223 VVhat fees the Vnder Sheriffe of Middlesex useth to take 223 Fees payd by the Sheriffe in rendring his accompts into the Exchequer 225 226 227 Fees of the Coroner 294 Fees of the Court-Baron 373 374 Fieri facias where it lies 71 174 VVhat it is 183 The Sheriff must be cautious in executing this Writ c. ibid. If he for a debt of twenty pounds takes goods and sells them for forty pounds he may keep the surplusage till the Defendant demand it of him ibid. Sale upon a Fi. fa. shall stand though judgment be after reversed 184 Vpon a judgment against an Executor or Administrator no Cap. ad sat lies but a Fi. fa. c. but if a Devast be returned then a Cap. ad sat or a Fi. fa. de benis propriis c. ibid. After Scire fac no Elegit lies until the tenant be warned but a Fi. fa. doth ibid. Goods taken upon a Fi. fa. and no buyers found an order to levy the goods and lands of the Bayliffe ibid. If no goods be found the Sheriffe may sell a Lease for years c. ibid. A Scire facias issued out against an old Sheriffe after a new one elected for money levied by him c. 185 Bond taken by the Sheriff not within the Stat. ibid. VVhere
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-Court 14 Vpon the Writs of Recordare Pone Writ of false Judgment c. in the common-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
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-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
E. 4. fol. 10. 34 H. 8. Br. Pledg 28. Nor goods distrained for Rent c. may not be taken If the Conusor die in execution the Conusee may have Execution of his lands and goods Co. 5. 86. 87. Fitz. 246. b. Or if the Conusor escape his goods and Lands shall be extended A Non est inventus return'd upon the 1. Certificate a 2. not grantable yet c. 28 E. 3. 91. Execution 93. Several Certificates in divers Courts upon one Statute Execution sued in the one shall not stay that in the other 29 Ass 29. 29 Ass 41. A Statute certified for the Testator shall be certified for the Executor F N B. 132. F N B 244. The Major c. hath power to hold Pleas done in the Staple Non est inventus return'd upon a Cap. in the Common Pleas Capias extendi facias shal not issue out there without shewing the Sta. to the Iustices c. 37 H. 6. 6. 7. Statute must be shewed at the day of the return c. 26 H. 6. Ex. 6. A stranger may have Execution where the recognisee is dead Or a Satute be made to two yet one may have Execution c. 12 E. 4. 10. 11. Execut. 14. Executors must sue out a Scire facias before they can have Execution c. 17 E. 3. 31. 18 E. 3 10. Execution upon the Statute sued into divers Counties upon Nihil returned in one County he shall have Execution of the whole in the other c. 16 E. 3. Exec. 49. 41 E. 3. Statute sued of parcel of the Lands in the name of all shall never extend the rest Three bound to one in a Statute severally Execution may be against one or all Infant bound in a Stat. may avoid it during his Minor c. The like by dures imprisonm Proper Improper Statute-Staple proper what 27 E. 3. c. 9. Statute-Staple improper what Or. 27 H. 8. c. 6 West Symb. 1. L. 2. Sect. 152. 153. 154. 155. Note 27 Eliz. cap. 4. The manner of proceeding upon a Stat. Staple Liberate Note Co. L. 6. 45. C. 2. in Higgons case Pemberton Bartams case Plow 32. El. Rot. 235. The manner of proceeding upon a Recognisance Elegit Levari facias Fieri facias Capias Proceedings against the sureties Execution of all the goods and chattels and a moyty of the Lands Execution of the Land which the Recognisor had at the time of the Recognisance c. Two sued in Execution the money deliver'd to the Attorney of the one and to the other himself good c. The heir charged c. Execution upon Stat. and findes bail doth not appear at the day c. Two sue Execution and one dies before the extent yet the lands shal be extended 11 R. 2. Brief 938. Otherwise upon a Stat. Merch. 3 Bound in a stat joyntly and severally he shall have exec against one or all but not against two c. Note May take a moiety of the lands of the Conusor all his goods and chattels Westm 2. c. 18. Valuation of the goods and lands must be found by inquisition Co. 4. 74. The sheriff must return the Extent and that he hath delivered the lands c. Term of years delivered in execution upon Elegit good and also rents The sheriff must return the moiety distinctly unless they be Tenants in common c. Brownl Rep. fol. 38. The sheriff cannot deliver a Lease at another value then what the Jury had found it at Goods cannot be sold by the owner after the Test of the Elegit An Execution valuable without satisfaction 23 H. 8. cap. 5. Note where a Capias lies after an Elegit Hobert fol. 58. Lands sold after Judgement shall be lyable to satisfie it Two Writs of Elegit delivered to the Sheriffe at one time how to be executed Severall Elegits may issue into severall Counties No Capias nor Fieri fac doth lye after an Elegit and why Mich. 30 E. 3. Cap. 24. Prisoners must be kept in salva arcta custodia Fitz. 93. a. c. Cap. ad satisf where a Cap. lies in the Orig. Nothing but the body can be taken by this Writ Co. 5. 8. A man in the custody of the Sheriff and a second Writ is delivered to him he shall be in his custody upon it although not actually arrested 7 H. 4. 30. Two bound in an Obligation joyntly and severally both may be sued and taken in execution c. No Cap. ad satisf for damages in a Writ of Dower No return required upon a Cap. ad satis Cap. pro Fine Cap. Vilegatum Cap ad valent Cap. pro Fine what it is An Elegit sued after one is taken for the Protectors fine he shall go at large One taken upon a Cap c. in trespasse c. 47 E. 3. Execution 41. Cap. Utlegat what it is Note Cap. utleg inquiras de bonis catallis what it is Cap. ad Valen. what it is Westm 2. c. 18 13 E. 1. The Sheriffe must be cautâ—ous in executing this Writ c. Dalt office of Sheriffs fol. 60. If the Sheriffe for a debt of twenty pounds takes goods and sells them for 40 l. he may keep the surplusage till the Defendant demand it of him Noy's Reports fol. 59. Sale upon a Fi. fa. shall stand though judgmeÌ„t be after reversd Vpon a Iudgement against an Exec. or Administra no Cap. ad sat lies but a Fi. fa. c. But if a Devast be returned then a Cap. ad satis or a Fi. fac de bonis propriis c. After Scire fa. no Elegit lies until the tenant be warned but a Fi. fa. doth Goods taken upon a Fi. fa. and no buyers found an Order to levy the money upon the goods and lands of the Bailiff 5 E. 3. Ex. 101. If no goods be found the Sheriff may sell a Lease for years c. 19 E. 3. Ex 148 A Scire facias issued out against an old Sheriffe after a new one elected for money levyed by him c. 9 E 4. 50. Scire fac 2. Bond taken by the Sheriff not within the Stat. of 23 H. 6. c. 10. 19 H. 6. 43. Co. 10. 99. b. 3. in Beaufages case Where the under Sheriff justified the breaking of three doors c. to do execution c. Crooks second part fol. 555. 556. The Sheriff may sell a Lease for years c. without taking inquisition of them Co. 5. 90. 4. 74. Four Reasons why no return is required upon a Fieri fac Register Origin fol. 298. b. 300. b. Plow 441. Stat. Westm 2. cap. 45. Fitz 266. c. Part of the sum levied a Sicut alias Levari facias may issue out for the residue Fitz. 265. h. Co. 6. 51. F N B. 265. Westm 2. c. 18. Habere facias seisinam what it is and where it lies Habere facias possessionem what it is and where it lies F N B. 220. 221. Co. 5. 91. 1. 6. 51