Selected quad for the lemma: judgement_n
Text snippets containing the quad
|
ID |
Title |
Author |
Corrected Date of Publication (TCP Date of Publication) |
STC |
Words |
Pages |
|
A25540
|
An Answer to a paper entituled The Grievances of His Majesty's subjects residing within the principality of Wales in respect of the Court of the Council in the Marches of Wales : with the particular conveniences of that court.
|
|
1689
(1689)
|
Wing A3332; ESTC R29059
|
10,740
|
17
|
d. which with the Copy of the Bill Dedimus Drawing Answer and Expence of Commissioners c. will amount to forty or fifty Shillings notwithstanding the Debt or Damages in demand is not really 6 d. To avoid which Expence and especially when they are sued and molested by beggarly People the Defendants in such Actions tho' there be no cause of Action against 'em do chuse rather to compound with the Plaintiff than to answer the Action with so great an Expence which gives great encouragement to Cursitors and other litigious poor People to bring and multiply vexatious Actions in the said Court whereby the mean and ignorant sort of People within the same Jurisdiction are very much impoverished IV. Herein also the Author of the said Paper is very disingenuous for that the Defendant hath always a Dedimus to answer of course without paying one Penny to the Plaintiff or his Attorney neither is the Plaintiff or Defendant forced to take out any Copies of the Proceedings in Debts or Trespasses under 〈◊〉 Pounds but each Party by his Clerk or Attorney hath access to the Original Records to peruse them at pleasure without Fee and to take such Notes thereof gratis as he thinks fit nay when the Cause comes to hearing the Parties to avoid charge are admitted in these small Causes to carry the Records themselves to their Counsel for their Instructions But if the Cause be a matter of Title of Land in Equity or Debt or Trespass above Ten Pound value then the Records are to be copied in the Office for which Copy the Party is to pay four Pence a Sheet each Sheet to contain twelve lines and sixteen words in each line which is not above half the Charge of copying in Westminster-Hall and the Great Sessions V. That the Processes for Contempt in the said Court were generally directed not to the Sheriffs but to private persons nominated by the Plaintiff who are not sworn Officers as well as to Pursuivants and Serjeant at Arms by whom several poor People are usually forced from their own habitations being an hundred miles distance to Prison to the Lodge at Ludlow for the non-payment of the unreasonable and great Fees demanded by such Officers V. The first Process is in nature of a Summons and so in effect is the second called a Contempt upon either of which no person is arrested or holden to Sureties as in other Courts but after if the Defendant continues obstinate and will not appear he is arrested upon a Process directed to the Sheriff and other special Bailiffs but never carried to any Prison if with one Surety he will enter into Bond of 10 l. penalty to appear upon the Return of this third Process and if upon this third Process he refuses to give Bond to appear he is never carried out of the County to any Prison unless it be in some very extraordinary Cause of Contempt upon breach of Orders so that if any Prejudice does arise to him in this respect he may thank hinself for the mischief which he might have prevented by two Summons or a Bond for Appearance and if there be any Error in these Proceedings the Court upon Information orders the Plaintiff to lose the Charge he hath been at and to pay Costs to the Defendant If Process were directed to the Sheriffs alone Justice would be delayed in the Execution and retorn of Process especially in the cases of Gentlemen and wealthy Persons who in this Country of Wales are most commonly related to Sheriffs and their Deputies neither are the Fees of the special Bailiffs extravagant the Fee for an Arrest being very small and to be paid by the Plaintiff and not the Party Arrested VI. That where any of his Majesties Courts of Westminster do grant Prohibitions in Causes not properly determinable in the said Court yet if the Party that procures such Prohibition after he is put to a considerable Charge hath no benefit thereof unless he personally serves the other Party therewith who will abscond the Judges of the said Court refusing to obey any such Prohibition or else imprisoning such as serve them therewith VI. The Charge of the Sixth Article is not true for in the first place it is denied that the Court does countenance any Cause wherein they have not Jurisdiction But however if any Prohibition be at any time granted out of Westminster-Hall and the Plaintiff abscond the Service upon his Counsel Attorney or Sollicitor or any of the Judges is sufficient and always obeyed nor can any instance be made of any Person that was imprisoned for serving a Prohibition unless he did it upon the Judges sitting in Court with abusive and insolent words VII That after Actions brought or Tryals had in His Majesty's Court of great Sessions or in His Majesty's Courts at Westminister the Judges of the said Courts of Marches upon a Bill filed in that Court by the Defendant at Law suggested matter of Equity do usually take upon them to grant Injunctions to stay proceedings in the said Courts of Westminster and great Sessions and in case the Plaintiff at Law go on in any such Actions will severely proceed against and imprison such Plaintiffs at Law if to be found within their Jurisdiction VII As to so much of this Article as relates to the Courts of Westminster Hall the Author of these pretended Grievances is desired to give us some particular Instances to prove the Allegation for Persons who have been Practisers in the Marches and Officers there for many years cannot remember any such thing ever done but it is confessed that after an Action brought and before Verdict had in the great Sessions some Judges of the said Court of the Marches in imitation of the High Court of Chancery have of late granted some Injunctions to stay the proceedings there when the Defendant in his Answer hath discovered some equitable Matter for which the Plaintiff was relievable in a Court of Equity But if this be a fault it is a fault contrary to the Instructions and Law of the Court and therefore can be no Reason to destroy the Court but rather to punish the Judges VIII That in case of a Writ of Error of a Judgment in a personal Action in the Grand Sessions in Wales brought in the said Court of the Marches if after Errors assigned the Defendant in the Writ of Error pleads a Release or other matter of Fact thereto the said Court cannot proceed to determine such Error for want of a Jury whereby such Writs of Error will for ever remain undetermined and the Plaintiff in the great Sessions shall never have any fruits of his Judgment which is a failure of Justice which has several times fallen out in the said Court upon Writs of Error there brought besides that the said Court of Marches which is no Court of Record tak◠upon them to correct and determine Errors in the great Sessions which is a Court of Record VIII There is no failure of
Justice in the Case therein alledged for the Statute of 34 35 H. 8. which impowers this Court of the Marches to examine erroneous Judgments given in Personal Actions in the great Sessions of Wales does implicitly and necessarily impower them to Try any Matter of Fact that may be pleaded in such a Case tho' it be not mentioned in express words for it is a Rule in Law Quando aliquid conceditur concedi videtur id sine quo res ipsa esse non potest Therefore in 14 H. 8. f. 1. It is resolved That if one makes a Lease excepting a Close or Wood the Law giveth him a way to it tho' there be no express words concerning the way And therefore in this Court of the Marches there are Presidents that when any such Matter of Fact has been pleaded upon a Writ of Error as is mentioned in this Article which happens but very seldom the same has been Tryed at the great Sessions in some County of Wales upon a feigned Issue directed by this Court of the Marches and besides if there be a failure in this Court of the Marches there is the like failure in the Court of the Exchequer-Chamber erected by the Stat. of 27 Eliz. for redressing Errors in the Kings-Bench for if a Matter of Fact be pleaded there the Statute by express words does not provide how this Fact shall be Tryed but in those cases such Matters of Fact have been Tryed by Nisi prius So that this Court of the Marches is no otherwise defective in this point than the Court of Exchequer-Chamber and if either of them were defective in these points as they are not that is a defect in the Law and sufficient cause for a Parliament to redress it by a new Act but no cause to destroy the Courts And that this Court is a Court of Record in this respect is very evident for the proceedings herein upon Writs of Error are in Latin as in other Courts of Record and the Court takes its Jurisdiction in this particular by an Act of Parliament and awards Execution if the Judgment be affirmed IX If a Sheriff Bayliff or other Officer execute any Process from that Court for the King or Subject and the Defendant bringeth an Action of false Imprisonment such Officer cannot plead Not Guilty and giveth Process in Evidence but must be inforced to plead the Statute at large together with their Instructions which never yet could be drawn by the best Clerk besides that it will cost upwards of ten pounds whereas perhaps the damage in the Original Action did not exceed 12 d. IX Pleas to Actions of False Imprisonments brought against Officers for executing the Process of this Court have been drawn by Council and maintain'd which are yet to be seen upon Record and may be used as a President in the like case at any time for a very inconsiderable Charge and if no such Plea had been yet drawn yet certainly it is not impossible or difficult to be done by any Lawyer except the Author of this Paper X. They usually alter and frequently quiet Possession upon the filing of a Bill there without any Process served upon the Defendant and often-times upon the Oaths of the Prosecutor whereby men often lose their right at least with much charge and difficulty regain the same X. There is no Injunction granted out of this Court to alter or quiet any Possession before a Bill Fil'd in the Court setting forth the Complainant's Title and an Affidavit made that he hath been in quiet and peacable Possession by Vertue of that Title for three years before the exhibiting of the said Bill and then the Injunction is only to quiet the Possession till Eviction by a due course of Law which the Party enjoyned may commence and prosecute with what speed he please and so bring the matter to a Legal determination And if he recovers by Law the Injunction is forthwith dissolved But if this Affidavit be false the Party concerned hath liberty to take Issue thereupon and to prove it so by Witnesses which if he does the Injunction is immediately dissolved and good Costs to him awarded for the vexation And moreover the King's Attorney attending this Court is ordered to Prosecute an Indictment of Perjury against the Offender for this false Oath This proceeding is warranted by a particular Instruction from the King grounded upon the said Statute of 34 and 35 Hen. 8. cap. 26. for the preventing of Blood-shed and Murder which before often happened on such Occasions in Wales and if that Power should be taken away the old turbulent Humour would soon revive to the great disturbance of the tranquillity of that part of the Kingdom and the strongest Man would have possession of the best Estate till he could be evicted by a great Expence which a poor Man out of Possession could never undergo XI Many lewd and dissolute Persons live by serving the Process of the Court and making Affidavit thereof and though they can neither write nor read yet will swear the serving of forty or fifty Processes at one time wherein they cannot but oftentimes forswear themselves and much prejudice the Defendant XI This may be objected against the Court of Chancery and Exchequer-Chamber and divers other Courts where illiterate People are mostly employed to such purposes but particular care is taken in this Court by the Judges strictly to examine them and to caution them well of what they swear and to punish them if they swear false XII That they usually grant Injunctions to stay proceedings in inferiour Courts which hold Plea only of Trespasses and Debts under forty shillings whereas it was never intended the said Court of the Council of the Marches should hold Plea of any Debt under forty shillings XII This Court never grants Injunctions or Certioraries to remove Actions out of Inferiour Courts but upon a Bill filed and Oath made of Partiality in the Inferiour Court either because the Plaintiff below is an Inhabitant in the Inferiour Jurisdiction and the other a Foreigner Or if the Plaintiff is an Alderman of the Corporation or Related to the Steward or Judge there and when the Plaintiff below appears he by Answer sets forth the Nature of his Plaint below and the Plaintiff in the Court of the Marches by Replication sets forth what he hath to Plead in Bar and if the matter of his Plea be not sufficient the Plaintiff below recovers his Debt in this Court with his Costs and this removal must be before the Verdict upon the first Commencement of the Suit below and the Party that removes the Action must first give Security in the Court of the Marches to answer the Duty and Costs in case the Suit goes against him All which warranted by the Instructions of the Court. And besides all this the Author of that Paper is challenged to shew any Law whereby the Court of the Marches is intended to be excluded from holding Plea of Debts under