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
have an action of the case against him that made such return See Co. 5. 90. 11. 40. and 4. 67. In Mich. term 8. Jac. The words of a Return were these viz. By vertue of this Writ to me directed I have taken the body of E. M. whose body I have here ready in Court at the day c. and as for the other two they are not to be found in my Bayliwick And at the end of the return was set down The answer of S. H. c. which S. H. at the time of the return was not then officer to the Court nor to the King and so disabled to make a return and therefore the return insufficient The Writ was directed to the Sheriff and so ought the Return to have been by the Sherif for none can make a returne of a Writ but such a person who at the time of the returne remained an Officer to the Court. If the old Sheriff be removed before the day of the return the new Sheriff is to make the return and to this purpose is the book of 22 E. 4. fol. 33. and 34. in the case of a Writ of Error to reverse a false Judgment given before the Major and Sheriffs in the Court at Coventry and Co. 3. fol. 72. Westbyes Case where it is resolved that after the election of a new Sheriff and before delivery over of the Prisoners to him they do remain in the custody of the old Sheriff and after the delivery of them over to the new Sheriff he at the day of the return ought to return Cepi corpus but in this case the return by the new Sheriff before any delivery over of the Prisoners to him by the old Sheriff is no return at all in Law And the old Sheriff can now make no return he being no Officer at all to the Court but the new Sheriffe is the Officer to the Court and ought to make his answer unto the Kings Writ to him directed and he doth not here return a Cepi corpus but only an indorsment in this manner setting his hand also to the return with this Postscript viz. This Writ as it is above subscribed I the now present Sheriff have received from my Predecessor the old Sheriff going out of his office and this upon the matter is no return at all Here the new Sheriff hath made a Return but the same is not good being but parcel of that which he ought to have returned For as to the other two his return is They are not to be found within my Bayliwick this Return is not good for he ought to have said that those two nor either of them were to be found And it is said that the old Sheriff put his hand to the Writ he was at that time out of his office and so he was no Officer of the Court and so it is in effect as if he had not put his hand at all to the return and and so the return being as no return in Law is meerly void Upon an Elegit the Sheriff returned that to be executed and the extent of the Church of S. Andrews alias S. Edes and it was prayed that the Sheriff might amend it and make it Andrews only for that was the true name and the Court said that the alias dictus is surplusage and will not hurt the return of the Writ Winch. Rep. fol. 27. A Writ of Proclamation upon the Exigent was returned by the Sherif out of office at the time upon which the Outlawry was adjudged void Stat. 6. H. 8. Dyer 103. To return Rescous upon a Latitat is no good return for the Sheriff might have had a Posse Comitatus aswell for the serving the same Processe as an Execution 10 H. 7. 26. 33 H. 6. 1. 10 E. 4. 3. F N B. 102. Dyer 162. If a Writ be directed to a place where there are two Sheriffs as London York c. and one of them doth return the Writ it is insufficient for though one according to custome doth execute it yet it must be returned in both their names 21 Ass 20. Br. Officer 22. If the Sheriff upon a Capias ad satisfaciendum returneth a Cepi corpus and hath not the body at the day c. he is chargeable for an escape Or if upon a Fieri facias he returneth a Fieri feci and hath not the money at the day c. he is chargeable with the money Br. Ret. 107. Yet in all Writs of Execution except an Elegit as upon a Cap. ad satisfac Habere facias seisinam vel posessionem Fieri fac Liberate c. If the Execution be duly done although the Writ never be returned or filed it much matters not if the Plaintiff have his demand for then he hath no cause of further proceeds in it But in case of an Elegit because the Extent is to be made by an Enquest and not by the Sheriff alone that ought to be returned otherwise it is invalid Coo. 4. 67 and 5. 90. But where no Enquest is to be taken but onely Land to be delivered or seisin had or goods to be sold which are but matters in fait these are sufficient although the Writ be not returned Co. 4 67. a. It is no good return for the Sheriff to say that the party will not pay his fee ergo he did not execute the Writ 34 H. 6. Br. Ret. 10. All Sheriffs and Bayliffs who have return of Writs ought to set both their names of Baptisme and sir-names to their returnes Plo. 63. a. so that the Court may know of whom they received such returns if necessity require And this is by force of the Stat. of 12E 2. Cap. 5. Yet by the Stat. 18 Eliz. cap. 13. imperfect or insufficient returns of Sherifs are corrigble Upon a Replevin the Sheriffe returns I have commanded the Bayliff of the Liberty of c who will make no deliverance c. these are no good returns for the Sheriff himselfe ought to have entered the Franchise and to have made deliverance of the Cattle c. Fitz. 68. f. He shall be amerced for the default of his Under-sheriff County Clerk or Bayliff 38 Ass p. 13. Br. 77. 1 R. 3. c. 4. But by the Stat. of 27 H. 8. c. 24. Amerciaments for insufficient returns of Writs made by Bayliffs of Liberties shall be impos'd upon such Baylifs and not upon the Sherifs Every return ought to answer the Writ ad punctum and therefore where the VVrit was That you make known to the heires of the Lands and Tenements which were of A c. And the Sherif returned That he made known to B. Esquire sonne and heire of the said A c. which was not good and assigned for Errour c. because he did not return him heire of any Lands or Tenements as the writ required for his writ was not to summon the heire of the said A but
necessary to be done in for or about the better effecting of the premisses as fully and amply to all intents and purposes as I my selfe might do in person or otherwise and whatsoever my said Attorneyes or either of them shall joyntly or severally do in the premisses according to the true intent and meaning of these presents I do hereby allow of ratifie and confirme In witnesse c. The Grant of a Stewardship TO all to whom these presents shall come A. B. Knight sendeth greeting Know ye that I the said A. B. for divers good causes and considerations me thereunto moving have for me my heires and assignes given and granted and by these presents do give and grant unto John Preston of B. Gent. the Office of chiefe Steward and the place and execution of the Stewardship of my Mannor of Skipton in Craven in the County of York And the holding and keeping of all Courts Court-Leets viewes of Frank-pledge and of all other Courts of what kinde soever the same be to the said Mannor belonging or in any wise appertaining To have hold execute and enjoy the aforesaid Office of chiefe Steward and the place and execution of chiefe Stewardship and the holding and keeping of all manner of Courts usually held and kept within the same together with all manner of fees wages rewards profits advantages and emoluments to the said office of chiefe Steward or Stewardship of the said Mannor or Lordship belonging or appertaining or at any time heretofore accustomed and used to be paid rendered to or received by the chiefe Steward or Stewards there for the time being for or by reason of the said office of chiefe Steward or Stewards there for the time being from henceforth for and during the naturall life of him the said Iohn Preston In witnesse c. THE COURT OF Pypowders The definition of it what it is and why it was instituted together with its jurisdiction THis word Pypowder hath its definition from the French words pied i. pes and puldreux i. pulverulentus or as Skene de verb. significat Pede pulverosus dusty feet a Vagabond Pedder or Scotch Merchant who hath no certaine dwelling place and by whom Fares are usually kept to whom justice should be summarily ministred within three flowings and ebbings of the Sea or as some define it to be curia parvi ponderis and this is to be pedis-pulverizati and so the Lord chiefe Justice Anderson did use to define it for the speed and celerity there used in the present dispatch of businesse This Court of Pypowders is a Court of Record instituted and set up for the speedy and sudden dispatch of matters and differences arising in a Fare or Market and for the speedy doing of Justice and this in case of necessity for the sole benefit of Tradesmen and Merchants and for the present determination of all doubts and questions there then arising and that only upon sales and contracts had in the Fare and Market during the time thereof but not for matters acted and done before or at any time after the Fare or Market held but for matters happening and arising in pleno Mercato or in plenaferia 8 H. 7. fol. 4. b. This Court is of two kindes viz. 1. Either by prescription and this is an absolute jurisdiction 2. To be in a Fare and Market and to this a Court of Pypowders is incident And here two things are requisite viz. 1. This Court to be for matters arising in the Fare or Market 2. The matters to be determined there within and during the continuance of the Fare and Market and this appeares to be so by the Statutes of 17 E. 4. cap. 2. and 1 R. 3. cap. 6. and this is in a Court of Pypowders annexed unto a Fare or Market But in a Court of Pypowders which one hath by Prescription there they may heare and determine matters done before Bolstrod 2. part fol. 21. Goodson against Duffill Cro first part fol. 33. For in case of a Prescription such a Court may well be without a Fare from time to time and from day to day 13 E. 4. fol. 8. b. it was so adjudged in point of a Writ of Error where the error assigned to reverse a judgment given in curia pedis pulverizali there alledged to be held secundum consuetudinem ejusdem civitatis the Error insisted upon was because he shewed not that the matter upon which the action was brought was in pleno Mercato or in plena feria it is there expresly adjudged that this was no Error because the same was layd to be held secundum consuetudinem civitatis so that such a Court may be held without a Fare or Market and that the King may well grant such a Court to be held from day to day and such a Court may well be held by Custome without any Fare or Market and its proper denomination is from the speedy dispatch of businesse there so that the jurisdiction of this Court held by prescription may be extended unto all contracts and bonds to actions of trespasse and actions upon the Case and to this purpose was the case betweene Chambers Plaintiffe against Pert Defendant Hill 33. Eliz. Rot. 124. where an action of trespasse for an assault and battery was brought in a Court of Pypowders for an assault done long before and well maintainable as it was held But this Court held by prescription doth much differ from the ordinary Court of Pypowders and that by many circumstances This Court may be thus used and held viz. 1. Either by way of Grant 2. By way of confirmation And being thus held it differs from the ordinary Court of Pypowders which is incident to every Fare as appeareth by 12 H. 7. fol. 16. b. and 13 H 7. fol. 19. And the same Court is thus incident to a Fare and that of common right as it appears 13 E. 4. fol. 8. b. Old book of Entr. fol. 168. Fit dette en Gailor placito 1 f. 18. Fit account in Execution placito 3. If one will declare upon a matter in this Court in Fare there in such a case of necessity he ought to set forth in pleading that the same was done in pleno ferio or in plena Mercata otherwise not good But it is not so in case where a man hath and holdeth this Court by prescription in which Court they may heare and determine actions upon the case for words but not so in an ordinary Court held during the time of the Fare And by 6 E. 4. fol. 3. b. If a man in his Fare hath this Court here the Steward is Judge and no other for there are no Suitors and for a Judgment given in this Court a Writ of Faux judgment lieth not but a Writ of Error and with this agrees 7 E. 4 fol. 23. And where one claims to hold this Court by prescription and also by Charter if the Charter be not contrary
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
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
and governed himselfe Notwithstanding the said A. B. not ignorant of the premisses out of his meer and wicked malice preconceived indeavouring the name and same of the same W. B. to hurt detract make worse darken and utterly to destroy and also into perturbation vexation and insamy to lead and induce certain salse and scandalous words and lies of the same W. B. the 8. day of April in the yeare of our Lord 1656. at c. and within the liberty and jurisdiction of this Court in the presence and hearing of many faithfull subjects of the said Commonwealth said repeated and spread abroad in these English words following to wit W. B. meaning the same W. B. hath stoln my horse out of my Close which I will prove By pretext of speaking and spreading abroad of which said salse scandalous words the same W. B. not only in his good name and same is hurt but also in performance of his businesse with honest persons with whom the said W. B. in buying selling and lawfull bargaining is much hindred and damnified and also some subjects and people of this Common-wealth for that occasion will draw themselves from the company of the same W. B. and to converse with him or any wayes to intermeddle refused and yet do refuse whereupon c. damages to 39 l. And thereof he bringeth suit c. And the said A. B. by S. D. his Attorney cometh c. And saith that the said W. B. his action aforesaid against him ought not to have because he saith that he is not guilty of the speaking and spreading abroad of the words in the Declaration aforesaid specified nor of any part of them in manner and form as the said W. B. above against him complaineth And this c. Therefore according to the custom it is commanded to the Bailiff of the Weapentake of Ouze and Dar that c. that he cause to come before the Steward of the same Court at the next Court of the County aforesaid such a day 12. c. And that he then have there the same Precept together with the pannel of the names of the Jurors aforesaid the same day c. At which County Court held at the Castle of Y. aforesaid according to the custom before the Steward there upon Monday the 2. day of April came as well the same W. B. by his Attorney aforesaid as the same A. B. by his Attorney aforesaid c. and the same Bailiff of the Weapentake aforesaid returned the precept to him directed in all things served together with a Pannel of the names of the Jurors Annexed to the precept to wit in the same pannel are named L. M. N. R. c. to make a Jury between the parties aforesaid in the plea aforesaid who to speak the truth of the premisses being elected tried sworn say upon their oath that the said A. B. is guilty of the speaking spreading abroad of the said words in the said Declaration specified and they assessed the damages of the said W. B. by occasion of the speaking of the same words besides his costs and expences by him about his suit in this behalf laid out to 4 l. 5 s. for those costs expences to 8 d. Therefore at the same Court that the said W. B. should recover against the said A. B. his said damages by the Jury aforesaid in form aforesaid assessed and also 3 s. 8 d. for his costs and expences which said damages in the whole do amount unto 5 l. 17 s. 4 d. In witness whereof the seal of the Steward of the Court aforesaid is put Dated at the Castle of Y. the 12. day of March in the year of our Lord 1657. And hereupon the same VV. B. prayeth that the same A. B. may shew to the Court here and assign the defects wherein false Judgment is made in the said plaint if any be done to him whereupon the same A. B. saith that the same Record is vitious and much defective to wit in that it doth not appear by the Record before whom the first Court was held and in this that the said VV. B. by his Declaration did complain himself to be damnified and made worse to the value of 40 l. whereas by the law of the land that Court cannot hold plea of 40 s. In this also that the same Court held the 12. of March was held before the Steward whereas it ought to be held before the Suitors of the same Court and the Sheriff of the County for the time being so that the same Judgment was given Coram non Iudice Also in this that by the same Record it appeareth that the same VV. B. appeared by P. P. his Attorney and the same A. B. appeared by S. D. his Attorney but in the Record is not mentioned any Warrant of Attorney for the same VV. B. or for the same A. B. in the said plaint And to the same A. B. saith that divers manner of ways in the County Court aforesaid false Judgment is made to him in the said plaint And hereupon prayeth that the said Judgment for the said defects and others being in the same Record as false and erroneous may be adnulled and altogether taken for nothing And the same A. B. to the said 5 l. 17 s. 4 d. which the said A. B. by vertue of the same Judgment for his damages by occasion of the premisses recovered against him and unto all things which he by occasion of the same Judgment lost may be restored c. And the same W. B. saith that in the Record aforesaid there is no errour nor to the same A. B. in the same County Court held at the Castle of Y. aforesaid false Judgment is made in the same plaint and prayeth that the Justices here proceed to the examination of the same Record and to resorm and correct the false Judgment if any be found therein proved or can be made appear And because the Justices here will advise themselves of and upon the premises before they further proceed therein day is given c in Oct. pur to hear thereof what the Court hereof and upon the premises shall consider because the Justices hear thereof not as yet c. At which day here came aswell the said A. B. as the said W. B. by their Attorneys aforesaid And because the Justices here further will advise themselves of and upon the premisses aforesaid before they proceed further therein further day is given c. in Mens Pas to hear thereof what the Court hereof and upon the premisses aforesaid shall consider for that the Justices hear thereof not as yet c. If any errors and defects be found in the proceedings then will the Judgement be reversed and a Writ of Restitution awarded It was commanded the Sheriff if A. B. and C. D. should secure the same Sheriff of prosecuting their complaint then in his full County he should make to be recorded the plaint which was in
answer for the same A. B. and C. C. his Clyents to the same E. F. in the said Plaint And the said Attorny for his said Clyents saith nothing in Bar as in others by which the said E. F. his damages against the said A. B. C. D. by occasion of the taking and unjust detaining of his Cattle aforesaid ought to recover but because it is unknown to the Court here what damages the said E. F. sustained by occasion of the premisses It is commanded to the said I. S. then Bayliff of the Wapentake of W. aforesaid one of the Ministers of the County Court aforesaid that he cause to come before the said Sheriffe at the next county Court of the County aforesaid to wit the 15th day of May in the yeare abovesaid at the Castle of Y. aforesaid then next following to be held twelve honest and lawfull men of the neighbourhood of S. to be suspected by neither party to enquire upon their Oath what damages the said E. F. sustained aswell by the occasion of the taking and unjust detaining of the cattle aforesaid as for his costs and charges by him about his suit in this behalf laid out and the same day was given to the said E. F. here c. At which said next County Court the same 15. day of May in the yeare abovesaid before the same Sheriff of the County aforesaid held came the said E. F. by his Attorney aforesaid And the same I. S. Bayliffe of the Wapentake aforesaid sent not his precept thereof Therefore as before it is commanded to the said I. S. Bayliff c. that he cause to come here at the next County Court before the same Sheriff of the County aforesaid to wit the 12 day of A. in the yeare abovesaid at the castle of Y. aforesaid to be held the 12th c. to enquire c to inform aforesaid c. At which day to wit the 12th day of April aforesaid before the same Sheriffe of the County aforesaid came the same E. F. by his Attorney aforesaid And the said I. S. Bayliffe c. and one of the Ministers of the same Court returned before the same Sheriffe the said precept de venire fac in all things served and executed And thereupon the Jury being thereof impannelled and called came and to enquire in forme as aforesaid sworn and charged say upon their oath that the said E. F. sustained damages by reason of the taking and unjust detaining of the Cattle aforesaid besides his costs and charges by him about his suit in this behalfe laid out 30 s. and for these costs and charges to 12 d. Therefore it is considered by the Court here that the said E. F. recover against the said A. B. and C. D. his said damages by the Jury aforesaid in form aforesaid assessed and also 26 s. to the same E. F. by the Court here for his said costs charges of his assent of increase adjudged which said damages in the whole amount unto 57 s And the same A. B. and C. D. in mercy c. Whereupon it was commanded to the same I. S. Bayliff of the Wapentake of W. aforesaid that of the goods and Chattels of the same A. B. and C. D. in his Bayliwick he should levy the damages aforesaid and that he have the money before the said Sheriffe at the next County Court at the castle of Y. to be held to wit the tenth day of March in the yeare abovesaid to render to the said E. F. for his damages aforesaid Whereupon the same E. F. prayeth that the said A. B. and C. D. would assigne and declare to the Court herein what or wherein false judgement is made to him in the said Plaint if any thing can be found proved or made appear c. And hereupon the same A. B. and C. D. say that the said Record is vitious and very much defective in this to wit that by the same Record it appeareth that the same cattle were taken the 15. day of January in the yeare abovesaid and that the complaint thereupon was levyed at the County Court of the Sheriff the 19th day of December in the yeare abovesaid so that the complaint was levied before the taking of the cattle afore made c. Also in this that by the Record it appeareth that the County Court aforesaid was held before the said Sheriffe of the County aforesaid whereas the same Court ought to be held before the same Sheriffe and suitors of the same Court so that the same Plaint was levied Coram non judice And the processe thereupon adjudged without any warrant in Law And so the same A. B. and C. D. say that in the County aforesaid false judgement was done to them in the said Plaint And pray that the said judgement for those errours and others in the same record and proceedings being may be revoked adnulled and altogether taken for nothing And that they unto all things which they by occasion of the judgement aforesaid have lost may be restored c. It was commanded the Sheriffe that if A. B. should secure the same Sheriffe to prosecute his complaint that then taking with him four discreet and lawfull Knights of the County aforesaid in his proper person he come to the Court of the Honour of P. and in full Court cause to be recorded that Plaint which was in the same Court of his Highnesse the Lord Protector between C. D. and the same A. B. in a certain Action upon the Case to the same C. D. by the same A. B. done as it is said Whereupon the same A. B. complaineth false judgement to be made to him in the said Court and that he should have here the Record at this day to wit Octab. Hill under his seal and by four lawfull men of the same County of those who shall be present at the Record and that he summon by good summoners the said C. D. that he should be here to hear that Record And that he have then here the names of the foure Knights and that Writ c. And now here at this day to wit Octab. Hill came as well the same A. B. by S. D. his Attorney as the same C. D. by P. P. his Attorney And the Sheriffe to wit G. M. Esq now returneth that the same A. B. found to the same Sheriff pledges to prosecute Io. Doo Ric. Roo And that the same C. D. was summoned to be here at this day by Io Den and Ric. Fen and that he by vertue of the same Writ to him directed took along with him I. S. W. P. I. H. and W. VV. four discreet and lawfull Knights of the County aforesaid and in his proper person came to the said Court held at P. in the County aforesaid the 15th day of October in the yeare of our Lord 1657. and in full Court made to be recorded the said Plaint whereof in the same Writ mention is made which said Record here at
same A. B. saith that the said Record is vicious and much defective and that false judgment is done to him in the said plaint in this that in the Record no mention is made whole that Court of the Honour of P. is and in this that no mention is made who is Lord of the said Court nor who are Suitors of the same and also in this that the Jury have not found that the said A. B. converted the same peece of Cloth to his proper use and so the same A. B. saith that divers ways in the said Court false Judgment is done to him in the said plaint And prayeth that the said Judgement for those divers errors and others being in the Record as false and erroneous may be revoked and taken for nothing And that he unto all which he by reason of the said false judgement lost may be restored And that the Justices here proceed to the examination of the premisses And because the Justices here c. SOME SELECT PRESIDENTS OF DECLARATIONS AND PLEADINGS Incident and belonging to this COURT Debt Executor against an Executor upon a Bill E. F. Executor of the last Will and Testament of I. F. deceased by vertue of a Writ of Iusticies to the Sheriff of the County aforesaid directed by I. S. his Attorney complains of M. VV. Executor of the last Will and Testament of R. VV. late of T. in the County Y. husbandman deceased otherwise called R. VV. late of T. of Y. Husbandman deceased of a Plea that he render unto him 7 l. of c. which he unjustly detains from him c. for that whereas the said R. VV. in his life time that is to say the 20. day of c. year c. at the Castle of Y. in the County of Y. and within the liberty and jurisdiction of this Court by his bill obligatory sealed with his Seal and here in Court produced bearing date the day and year abovesaid acknowledged himself to be indebted to the said I. F in his life time the whole and just sum of 7 l. of c. to be paid to the said I. F. his heirs executors administrators or assigns upon the third day of May next ensning the date of the said Bill and for the payment thereof the said R. VV. then and there bound himselfe his executors administrators and assigns Neverthelesse the said R. VV. in his life time though often thereunto required the said 7 l. to the said 1. F. whilest he was living hath not paid neither hath the said M VV. Executor of the last Will and Testament of the said R. VV. after his death paid the same to the said E. F. Executor of the last Will and Testament of the said I. F. to which said M. VV.'s hands came all and singular the goods and chattels which were the said R. VV.'s in his life time sufficient to satisfie all the debts which the said R VV. at the time of his death owed to any person or persons whatsoever as also to satisfie the said E. F.'s debt but the said R. W. whilst he lived refused to pay the same to the said I. F. in his life time and the same M. W. likewise after the said R. W.'s death refused to pay the same to the said E. F. after the death of the said I. F. and still refuseth so to do and unjustly detains the same by reason whereof the said E. F. saith he is damnified 10 l. and thereupon produceth this suit c. And the said E. F. produceth here in Court the said letters testamentary by which it appears the said E. F. to be Executor of the last Will and Testament of the said I. E. deceased c. Vpon a Bill to be paid at the day of marriage and issue upon it T. N and E. his wife Administratrix of the goods and chattels which were of I. B. deceased complains by S. D. his Attorney of I. H. of C. in the said County Gent of a Plea that he render unto them 5 l. which he unjustly detains c. for that whereas the said I. H. such a day year and place by his certain bill obligatory with his seal sealed and here in Court produced the date whereof is the same day and year For and in consideration of one Gold-ring with a certain Stone called a Diamond in the same Ring fixed of the aforesaid T. B. in his life time received the day of the making of the aforesaid bill did acknowledge and grant to and with the aforesaid T. B. in his life time that he the said I. H. his executors or assignes would pay or cause to be paid to the aforesaid T. B. his Executors or assignes for the same Ring at such a day and time as he the said I. H. should be wedded or married or at any other time after his marriage whensoever he should be required by the aforesaid T. B. his Executors or assignes or by him that should bring the said bill the said sum of 5 l. to his or their use the aforesaid time to be paid and the same T. N. and E. in fact say that the aforesaid I. H. after the making of the said bill to wit such a day year and place within the Parish Church of H. did take to wise one I. D. by which the action did accrew unto the said T. R. in his life and to the said E. after the death of the said T. B. whilst she was sole and to the said T. N. and E. after espousals between them celebrated to require and have of the aforesaid I. H. the same 5 l. Yet the aforesaid I. H. although often required the aforesaid 5 l. to the aforesaid T. B. in his life time or to the aforesaid E. whilst she was sole to whom the administration of all the goods and chattels which were of the aforesaid T. B. the time of his death such a day year and place was committed to the aforesaid T. N. and E. after espousals between them celebrated hath not rendred but the same to render to them hath denied and the same to them the said T. N. and E. as yet to render doth deny and unjustly detain whereupon they say they are damnified and have damage to the value of 10 l. and thereupon they bring their action c. And they bring into Court here the letters of administration c. The Defendant pleads that he was within age at the time of the making of the Bill AND the aforesaid I. F. by R. B. his Attorney comes and defends the force and injury when c. and sayes that the aforesaid N. and E. ought not to have their action aforesaid against him because he saith that he at the time of the making of the Bill aforesaid was within the age of one and twenty years and this he is ready to aver whereupon he demands Judgment whether the aforesaid T. N. and E. ought to have their action aforesaid against him c.
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
quod sit ita justus quod ob vindictam vel cupiditatem non quaerat versus tenentes Domini vel aliquos sibi subditos occasiones injustas per quas destrui debeant seu graviter amerciari The difference betwixt Court-Leet and Court Baron HAving travelled thus far in this pen-beaten way we will now inquire the difference between Court-Leet and Court-Baron and here these Courts differ from Court-Leets in divers respects and first in this that Court-Barons by the Law may be kept once every three weeks or as some thinke as often as it shall please the Lord of the Mannor though for the better ease both of Lords and tenants they are kept but very seldome but a Court-Leet by the Statute of Magna Charta cap. 35. 31 E. 3. cap. 15. is to be kept but twice every year one time within the Month after Easter and another time within a Month after Michaelmas 2. Secondly in this that Court-Barons may be kept in any place within the Mannor but a Court-Leet by the said Statute of Magna Charta is to be kept in certo loco ac determinato within the precinct 3. Thirdly in this that originally Court-Barons belonged unto inferior Lords of Mannors but Court-Leets belonged unto the King only 4. Fourthly in this that Court-Barons are inseperably incident to every Mannor so that every Lord of a Mannor may keep a Court-Baron but few have Leets for inferior Lords of Mannors cannot keep Court Leets without speciall prescription or some speciall patent from the King 5. Fifthly in this that in Court-Barons the Suitors are Judges but in Court-Leets the Steward is Judge 6. Sixthly in this that in Court-Barons the Jury consisteth oftentimes of lesse then twelve in Court-Leets never because none are impannelled upon the Jury but Freeholders in Court-Barons of the same Mannor but in Court-Leets strangers are oftentimes impannelled 7. Seventhly in this that Court-Barons cannot subsist without two Suitors ad minimum but Court-Leets can well subsist without any Suitors 8. Eighthly in this that Court-Barons enquire of no offences committed against the Protector but Court-Leets enquire of all offences under High-Treason committed against the State and dignity of the Protector 9. In many other respects they differ as that a Writ of error lieth upon a Judgement given in a Court-Leet but not in a Court-Baron 10. So in a Court-Leet a capias lieth but in a Court-Baron instead of a capias is used an Attachment by goods 11. So in a Court-Baron an action of Debt lieth for the Lord himselfe becanse the Suitors are Judges but in a Court-Leet the Lord cannot maintain any action sor himselfe because the Steward is judge Of the time when and place where this Court is to be kept THE usual and accustomed time is to keep it once every three weeks and although no Court hath time out of minde been holden within the Mannor yet it is not thereby extinct and lost for it is incident to a Mannor of Common right Coo. l. 4. 26. and 6. 27. a. And to the place where it is to be kept it may be kept and holden in any place within the Mannor as the County Court in any place within the County and Hundred-Court in any place within the Hundred for as to every Mannor a Court is requisite and incident to it so is it transitory throughout the whole Mannor and every part of the Demesnes of the Mannor is capable of a Court to be holden there But if it be holden out of the Mannor it is void unlesse a Lord being seized of two or three Mannors and hath usually time out of minde holden at one of his Mannors Courts for all his said Mannors there by custome such Courts are sufficient in Law though they be not holden within the severall Mannors The manner and Method of keeping the Court. THE Court-Baron of A. B. Esquire of his Court-Baron aforesaid held the 18. day of October in the year of our Lord 1658. before C. D. Steward there After you have entered the Stile of the Court command the Bayliffe to make Proclamation O yes c. and say All manner of Persons that have been summoned to appear here this day or have any thing to do at this Court draw near and give your attendance Or if any will be Essoyned or enter any plaints let them come forth and they shall be heard Which Essoyn is thus entred viz. A. B. is Essoyned for suit of Court by C. D. And Plaints are entred in this manner A. B. complains against C. D. of a plea of Trespasse debt or as the case requires And the proceeds upon plaints are the very same as in the County Court Call the Freeholders and those that make default let them be amerced in this manner viz. A. B. Esquire and C. D. Yeoman are Free-holders of this Court and have made default therefore each of them is amerced as may appeare upon their heads Then enter over their heads thus Amerced two pence Then command the Bayliffe to call the Jurors I. D. Jur. C. D. Jur. B. A. Jur. R. R. H. I. D. C. S. T. K. L. F. E. V. W. M. N. R. P. Then call the Foreman to the Booke and swear him after this manner You shall swear that you as Foreman of this Homage with the rest of your fellowes shall duly inquire and true presentment make of all such articles and things as shall be given you in charge and therein you shall spare no man for love favour or affection nor present any man for malice hatred or envy but according as things here presentable shall or may come to your knowledge by information or otherwise So shall you make there true presentment without concealment So help you God c. The Foreman being sworne call the rest by their names and sweare them by soure at a time in this manner The same oath that I. D. your Foreman hath taken before you on his part you and every one of you shall observe and keepe of your parts So helpe you God c. After the Inquest thus impannelled and sworn make another O yes and say You good men that are impannelled draw near and you and all other keep silence during the Charge An Exhortation to the Jury MY MASTERS YOU that be sworne before I give you your Charge I think it necessary to declare by what authority you are commanded hither and for what cause Chiefely you are appointed to be and appeare here being that you are the Lords Tenants and are obliged by reason thereof to appeare at the Lords Court-Baron when it snall be holden according to the Law and Custome of this Mannor that is to say at every three weekes end being warned and being by the same authority there to end and determine injuries trespasses debts and other actions where the debt or damage is under forty shillings And also that nothing be acted within the
de hoc ponit se super patriam Et hoc petit quod inquiratur per patriam 21 E. 4. f. 11. 63. 20. Ass 11. 2 H. 4. fo 16. 4 E. 4. fo 1. 2 H. 4. fo 14. 13 H. 4. fo 14. 22. B. 2. Car. 177. 8 E. 3. fo 69. 3 H. 6. fo 24. 9 E. 4. fo 49. Brit fo 134. 11 H. 4. fo 40. 33 H. 6. fo 55. 18 H. 8. fo 2. 8 H. 6. fo 60 Pasch 31. Eliz. 21 E 4. 74. 11 H. 4. c. 9. 23 Ass 11. Mirror cap 3. Nota. Co. Lit. fo 6. Plow 8. 12. Y. ss The stile of the Court. Proclamation Proclamation Proclamation Plaint Declaration Answer Venire facias The oath of the Jury The oath of the Witnesses Nota 17 E. 3. 47. 18 E. 3 48. 22 E. 3. 2. 18 E. 3. 56. 15 E. 3. Judg. 58 c. Hil. 25. Eliz. Mic. 28 39 Eliz. inter Gommersall and Gomersall c. Adjournment Broo. 146. Finches Ley 135. Coo. Sup. Litt. 97. 3 H 6. 54. 7 E. 4. Br. Iust 3. Nota. The Condition Yo. ss Fieri facias against an Executor De bonis propriis Yo. ss Fieri facias upon a Non-suit for costs Yo. ss Fieri facias upon a Verdict for the Defendant Fieri facias after a Scire facicias against an Administrator upon a Verdict had against the intestate Venditioni exponas Y. ss Y. ss Yo. ss Yo. ss Yo. ss Yo. ss Y. ss County Court ss Y. ss Nota. Recordare facias loquelam The Return The Shcedule Y. ss The Plea Or thus The Schedule Nota. The Return The Schedule The Plea by Writ Nota. Nota. The Return The Schedule Writ of Justicies Warrant upon the writ Essoin De male vener Yo. ss Declaration Emparlance Non sum informatus Iury to inquire of damages Precept upon an Accedeas ad curiam The Return The Plaint Record to be delivered in Court Betwixt two Sheriffs Against a woman Defect of the Coroner Defect of the County Supersedeas Where one renders himselfe and the rest appear not Rendred himselfe Dead Waved Languid Nota. Nisi prius Nota. Cap. ad sasis Fi. Fa. Elegit Nota. Record upon a writ of false Judgment County Court ss Errors assigned Vpon a Replevin Yo. ss Distresse awarded Error assigned A Record upon an Acced ad Cnriam upon false judgment Errors assigned County Court ss Yo. ss Yo. ss Y. ss Yo. ss County Court ss Yo. ss Yo. ss County Court ss Yo. ss Yo. ss Yo. ss County Court ss County Court ss York ss Y. ss Yo. ss Yo. ss Yo. ss Yo. ss County Court ss Y. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss 14 E. 4. fol. 6. 15 E. 4. fo 32. 17 E. 4. fo 5. County Court ss Co. Report q. part Aldreds Case Yo. ss County Court ss Yo. ss Yo. ss County Court ss County Court ss Y. ss Yo. ss Yo. ss County Court ss County Court ss Yo. ss York ss Yo. ss County Court ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss County Court ss County Court ss Yo. ss York ss Yo. ss Yo. ss Yo. ss Y. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss County Court ss Yo. ss Yo. ss 1 Pact non sol 2 Morat in lege Yo. ss Yo. ss Yo. ss York ss Son assault de mesn Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Y. ss Yo. ss County Court ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss Yo. ss York ss Custos vitae Reipub His judicial ministerial authority Judicial power Fitz. N. B. 8. d. 82. Term. del Ley tit visc 44 E. 3. F. Barr. 202. 5 H. 7. 6. 3 H. 7. 1. St. 3 Iac. c. 4. Br. Fines 37. Offic. Coron 3 E. 1. Suspected persons Armed persons 2 E. 3. c. 3. Cromp. 203. He may beate such as resist him and may set them in the stocks 2 E. 4 f. 6. 21 H. 7. 39. Br. Tresp 218. 296. To enquire of waste or to execute a Writ of Redisseisin He may commit a disseisor to prison c. Co. 6. fo 12. Dalton office of Sher. fol. 18. His Ministerial power Custos vita justitiae Crom. 203. Co. 4. 72. A. Co. 3. 72. Westbies Case The indorsment of such writs as are turnd over to the new Sheriff by the old Sheriff Stat. 12 E. 4. c. 1. 17 E. 4. 6. The new Sheriff is to take notice who are in execution Co. 3. 72. b. Westbies Case He is to preserve the Protectors right c. 21 H. 7 7 a. Stamf. Perk 5. 6. Suit Royal what Suit service what He must levy his Highness debts c. 52 H. 3. c. 15. Fitz. 173. Br. Dist 35. 32. 40. 72. Stat. 51 H. 3. Issues Dalt office of Sher. fo 25. 〈◊〉 Amerciaments Mag. char 14. Westm 1. c. 18. Recognisance Fines Amerciaments c. 33 H. 8. cap. 39. He is to seize no goods of Felons c. till they be lawfully forfeited 1 R. 3 cap. 3. But take sureties he may that the goods shal not be imbezelled c. Br. tit forfeit 44. Plow 68. He that flies for felony forfeits his goods chattels and the profits of his Lands c. Coo. 5. 109. Plo. 262. Fitz. Forf 92. c. Coron 296. 344. Felo de se Vtlawes goods for felony Co. 5. 110. b. Must receive all Writs and execute them c. 2 E. 3. cap 5. Cromp. 203. He may command his Bayliff to execute them either by word or precept c. Lamb. 91. 21 H. 7. 23. a. He must not dispute the authority of the Iudges c. that send Writs to him but must execute them Co. 6. 54. 9. 68. 10 70. Dr. St. 150. Co 10. 57. a. b. A Bayliffe need not shew his precept when he executes it But a special Bailiffe must shew the warrant c. Co. 9. 69. 21 H. 7. 23. 37. An arrest by an old Sheriff after his discharge tortious If process may be executed upon the Sabbath day Coo. 9. 66. He may break open a doore to execute processe concerning his Highnesse but not in case of a common person Co. l. 5. 92. b. in Seymans Case Co. 11 82. a. Lewes Bowles case Proclamation to be made 4 times a yeare Stat. Winchester Statute against unlawfull games 3 Custos vitae legis 22 Ass 47. Fleta l. 2. c. 64 c. How to sue out an Execution upon a Statute Merchant Certiorare Capias Extendi facias what Note All the fee-simple lands of the Conusor at the time of the Stat. acknowledged c. shal be liable to the said Statute Stat. de Mercator 13 E. 1. 27. c. 9. 23 H. 8. Co. 3. 12. Copyhold Lands not lyable Nor Lease for term of life But lease for term of yeares c. shal be extended c. Goods demised pawned or pledged may not be taken 22