voluntary will make to the said A. the said writing and not by force and hardnesse of imprisonment as the said B. above hath alledged And this he prayeth may be inquired of by the Countrey And the said B. likewise c. The Assault made by the Plaintiff c. ANd c. when c. And as to the Trespasse and Assault aforesaid above supposed to be done the said I. R. saith that the said R. W. his action aforesaid against him ought not to have because he saith that the aforesaid R. VV. the day year c. aforesaid upon him the said I. R. at the Castle c. did make an Assault and him would have beaten wounded and evil intreated by which the said I. R. himselfe against the aforesaid R. VV. did then and there defend And saith that if any evil to the said R. VV. then and there happened was of the proper assault of him the said R. VV. And in defence of him the said I. R. And this he is ready to verifie whereupon he prayeth Judgement if the aforesaid R. VV. his action aforesaid against him ought to have c. Replication ANd the foresaid R. VV saith that he by any thing before alledged from having his action aforesaid ought not to be debarred because he saith that the foresaid I. R. the day yeare c. abovesaid at c. in his Declaration aforesaid above specified of his own proper injury and without such cause by the said R. VV. above alledged upon him the said R. VV. did make an assault and him did beat wound and evil intreat so that of his life he did despair against the peace of the Lord Protector that now is as the said R. VV. above against him hath complained And this he prayeth may be inquired of by the Countrey And the said I. R. likewise Therefore c. The Defendant pleadeth the Plaintiff within age to bring his action and should have brought it by Guardian and not by Attorney ANd c. when c. And sayes that the foresaid I. R. ought not to have his action aforesaid against him because he sayes that the foresaid I. R. the day and year in the Declaration specified to wit the day year c. the day of the issuing forth of the Writ of Justicies of him the said I. R. that is to say the day year c. was within the age of one and twenty years And that the foresaid I. R. declared against him the said P. C. in the Plaint aforesaid by his Attorney whereas by the due form of Law he ought to have declared by his Guardian And this he is ready to aver whereupon he prayes Judgement whether the aforesaid I. R. ought to have his action aforesaid against him c. To a Trespasse in Walking Not guilty and as to the residue of Trespasse tender of amends ANd c. when c. and saith that as to the breaking of the close aforesaid as also to the treading down and consuming of the Corn and grasse aforesaid with his seet in walking in the same four acres of land aforesaid of new assigned above supposed to be done saith that he is in no wise thereof guilty c. and of this he putteth himself upon the Countrey and the Plaintiff likewise And as to the residue of the trespasse aforesaid in the same four acres of Land of new assigned above supposed to be done the same A. saith that the same B. his action aforesaid ought not to have because he saith that the residue of the trespass aforesaid in the same four acres of Land of new assigned above supposed to be done was done with the cattle aforesaid by negligence and against the will of the same A. and that the same A. afterwards and before the day of commencing of this action of the same B. to wit the 16 day of May in the year c. at the same parish of R. in the said County of Y. offered to the same B. 20 s. of lawfull money of England for and in satisfaction for the residue of the trespasse aforesaid so as aforesaid done which said 20 s. were sufficient amends for the same residue of the trespasse aforesaid in the same four acres of Land with the appurtenances of new assigned as beforesaid done and that the same B. the said 20 s. as aforesaid offered to receive of the same A. then and there altogether refused and as yet doth refuse and this he is ready to verifie And c. Replication ANd the same B. as to the same plea of the said A. as to the said residue of the trespasse aforesaid in the same four acres of land with the appurtenances of new assigned done saith that he by any thing in the same plea before alledged ought not to be barred from having his action aforesaid against him c. because he protesteth that the aforesaid residue of the trespasse aforesaid in the same four acres of land with the appurtenances of new assigned was not done with the cattel aforesaid by the negligence and against the will of the same A. protesting also that the said 20 s. in satisfaction for the trespasse aforesaid were not offered before the same day of commencing the suit of the said B. as the same A. hath above alledged for plea the same B. saith that the same 20 s. were offered by the same A. to the said B. for a certain trespasse by the same A. with his cattle aforesaid to the same B. in a certain other Close of land with the appurtenances called the S. of the same B. in the Parish of R. aforesaid in the County aforesaid done without that that the same A. offered to the same B. the said 20 s. for and in the satisfaction of the foresaid residue of the trespass aforesaid in the same 4 acres of land of new assigned done as the same A. hath above alledged and this he is ready to verifie whereupon for that the same A. the said residue of the trespass aforesaid in the same four acres of Land with the appurtenances aforesaid of new assigned done above acknowledgeth the same B. prayeth judgment and his damages by occasion of the residue of the trespass aforesaid to him to be adjudged c. Rejoynder ANd the same A. as before saith that he offered to the same B. the said 20 s. for and in satisfaction of the said residue of the trespasse aforesaid in the same four acres of Land with the appurtenances of new assigned done as he hath above alledged And of this he putteth himselfe upon the Countrey and the same B. likewise Therefore c. Misnomer in Baptism pleaded in Abatement of the Writ of Justicies ANd the said A. by Simon Don his Attorney comes and prayes Judgement of the Writ of Justicies aforesaid because he saith that the name of Baptism of the said Agnes in the Writ aforesaid named is Anna and not Agnes as the said B. hath above
Statute doth extend only to Obligations of such as are within their guard and custody and not otherwise Trespasse brought for breaking his house and breaking three doores and breaking and carrying away three locks of those doores The Defendant justifies the entry into the house by vertue of a Fieri facias awarded against the Plaintiffe directed to the Sheriffe of and he being under Sheriffe and the other Defendants his Bailiffs two of the Defendants entred into the house and the door being open took the goods and the Plaintiff shut the doors upon the Bailiffs and imprisoned them for two hours wherefore he brake open the doors and the locks to rescue his Bailiffs Quae est eadem transgressio and it was thereupon demurred and all the Court held that although a Sheriff cannot break open an house being to take Execution by a Fieri fac yet when the door is open that he enters and be disturbed in his execution by the parties who are within the house he may break the house to rescue his Bailiffs and to take execution so it was adjudged for the Defendants And in regard this restraining of the Execution and detaining of the Bailiffs was confessed by the Demurrer an Attachment for the good behaviour was awarded against the Plaintiffe Crookes second part fol 555. and 556. If the Sheriff take Leases for years or other chattels real upon an Execution he may seize and sell them without taking Inquest by a Jury of them and the sale will be good Co 5. 90. 4. 74. And no return is required upon a Fieri facias if Execution be done which is grounded upon four strenous and solid reasons by Coo. in his 5. Report in Hoes Case 1. Because the levying of the debt is lawfull and well done and the party Defendant cannot resist the Sheriff to levy money 2. The effect of the authority the Sheriff hath by force of the Fieri facias is executed 3. The great prejudice that the Defendant whose goods are sold by the Writ and processe of Law for the satisfaction of the debt should have if the Sheriffs not returnig of the Writ should cause a new Execution to be sued forth against him and leave the Defendant to his action against the Sheriff 4. if the sale of the goods by force of the Writ shall be for not returning the writ wrongfully then the Sheriff will not finde Buyers of the Defendants goods by force of any Writ of Execution which would be very inconvenient and great delay of Executions which are the fruit and life of every suit and where the words of the Writ of Fieri facias are Ita quod habeas denarios c they are but words of command to the Sheriffe to make returne which if he do not he shall be amerced but the Execution shall stand in force Levari Facias what it is WE come to the seventh which is a Levari facias and it is onely to be levied upon the profits of the Lands and Tenements and upon the goods of him that hath forfeited a Recognisance c. Register Orig. fol. 298. b. 300. b. but he cannot seize the Land and deliver that to the party by this Writ Plow 441. and this ought to be sued within the year after the day of payment to be made by the Recognisance or after the Judgment for after the year the Conusee or Plaintiff is now by the Statute of Westm 2. cap. 45. to have a Scire facias whereby the Sheriff is commanded that he give knowledge to the Defendant that he appear at a day certain in the Chancery there to shew what he can say why he should not pay the debt or damages and if he come not at the day or do come and can say nothing why Execution ought not to be done then the Sheriff shall be commanded to do execution Fitz. 266. c. And if the Sheriffe upon this Writ returne that he hath levied part of the summ viz. sixteen pounds part thereof which he hath delivered to the party now upon this return the party which ought to have the money may have a Sicut alias Levari facias directed to the Sheriff to levy the Residue of the summ Fitz. 265. h. Of Habere facias seisinam and Habere facias possessionem THere are other Writs of Execution which are necessary to be treated of viz. 1. Habere facias seisinam and 2. Habere facias possessionem Which Executions are for recovery of Land in a real action as Cap. ad sat fieri fac and Elegit are for Recovery of debt or damages in a personall action Co. 6. 51. F N B. 265. West 2. cap. 18. And first of the Habere facias seisinan which is a judicial Writ and lieth where one hath recovered certain lands in the Kings Court directed to the Sherif commanding him to put him in actual seisin of that Land which is done by delivering a bough of a tree or by a clod of the same land in the name of seisin c. and if the recovery be of a house then the Sherif may put him in seisin by delivering unto him the ring of a door or otherwise he may open the door saying to him Enter into the house and take seisin thereof by vertue and force of the recovery Perk. Sect. 206. 207. 208. F N. B. 220. 2. It is a Writ judicial and lieth where one was evicted from his farm and hath recovered it by Ejectione firmae or quare ejecit infra terminum it is directed to the Sheriff to command him to put the Plaintiffe in actual possession of the term again The Sheriff in executing both these two Writs may break the house and deliver seisin and possession thereof to the Plaintif But he cannot justifie the breaking a mans house to execute a Cap. ad satisfac or Fieri fac But where the Protector is a party there the Sheriff may justifie the breaking of the house to execute his Processe if they cannot be executed otherwise yet he must first request the opening of the door and withall signifie the cause of his comming F N B. 220. 221. Co. 5. 91. 6. 51. Dyer 278. Some select Cases which have not been yet published in any Treatise of this nature c. concerning Returnes of Writs where valid and good and where insufficient THis word Return hath a triple acceptation First as it is applied to the case of a Replevin and here it is called Returno habendo Secondly it is applied to the dayes of appearance in every term And thirdly it is applied to Sherifs and Bailifs and it is that which we are determined to handle And it is a Certificate made by the Sherif or Bailif to the Court from whence the Writ issued They ought to be very diligent in making true certain and perfect returns subscribing their names to them for if they make a false returne the party endamaged thereby may
Action brought For it was alleaged although a reprisall by fresh suit if it had been before the action brought would peradventure have excused him yet being after the Action brought so as the Plaintif at the time of the Action brought had good cause to have the Action the Reprisall after shall not excuse him and compared it to waste brought for Reparations which is amended pendant the Writ it shall not excuse him So here And in proof thereof were cited Coo. 3. fol. 52. Ridgeleyes case 23 E. 4. 8. 13 Edw. 3. tit Barr. 253. But against this it was argued That this reprisall being alleaged to be by fresh suite and before the plea pleaded is good for the time and he shall take advantage thereof to excuse the Escape For it is upon the matter no escape when shee was re-taken by fresh suit for that is a continuall pursuit and the Law shall adjuge her in prison always And it is not like the case of Waste For there nothing was done after the Waste committed before the Action and the Reparation hath not any relation nor is the continuance of any former Act but this Reprisall hath relation and makes it no escape ab initio As a Distresse taken for Rent and rescued and driven into another Mannor which is pursued and re-taken the party shall make his Avowry of the taking in the first place So here And it would otherwise be a great mischiese if an Escape should be against the wills of Sheriffs or keepers of Prisons by breach of prison or rescuing themselves before they be brought to prison or in their going thither and the prisoners be reprised within two or three dayes That an Action should be brought in the Interim against the Gaoler and that this Reprisall when he hath the prisoner before the plea should not be an excuse especially to the Marshall who hath multitude of prisoners and every day is to bring them unto the Hall by Habeas Corpus or Rules of Court If peradventure a Prisoner escapes and an Action be brought against the Marshall the same day before he can have any time to retake him If he should not be excused by the re-taking hee would be charged with a multitude of suits and could not have any remedy to excuse him And therefore it was compared to the pleading of a Fine levyed before the VVrit of Formedon and Proclamations incurred pendant the VVrit before the plea pleaded he well may take advantage thereof by pleading it although when the Writ was brought it was not compleat nor could be pleaded Vide 6 H. 7. 12. Secondly it was moved admitting this to be no plea yet the Action lyes not here because the Escape is of a Feme Covert where her Baron is subject to the Execution So the Plaintiffe hath not lost his debt for by intendment she might not have payd it if shee had layne in prison For shee had nothing but what was her Husbands and the Execution remaines yet against him Therefore Action of Debt lyes not because he is not totally deprived of his Debt but an Action upon the Case in respect of the damage And therefore it was said If one have Execution of a Statute of the Lands Goods and Body c. and the prisoner escapes Yet because the Lands remaine in Execution debt lyes not for the Escape but an Action upon the Case For at the Common Law an Action of Debt was not maintainable for an Escape but it is given by the Statute of 1 Richard 2. where the Debtor escapes But here the sole and principall Debtor did not escape for the Baron is the Principall and remained subject to the Execution vide 33 H. 6. 47. N. Br. 93. Regist fo 98. 4 H. 6. 6. Wherefore c. But the Court held that it was not any plea because the Action is brought and implyes a voluntary permission ire ad largum which is neither denyed or traversed And if the Sheriffe voluntarily lets a prisoner at large he cannot re-take him And so this Reprisall as is alleaged being after the Action brought is to no purpose nor is any plea. And for the Action of Debt they held that it well enough lyes or an Action upon the Case at his pleasure Because the Feme was onely committed to prison and not the Baron And shee is the sole Debtor who is imprisoned wherefore it was adjudged for the Plaintiff But note in as much as Escapes are so penall to Sheriffes Bayliffs of Liberties and Gaolers the reverend Judges of the Law have alwayes made a favourable construction as much as the Law will permit in favour of the Sheriffes Bayliffs of Liberties and Gaolers who are Officers and Ministers of Justice Co. 3. 44. Of Bayle what it is And where the Sheriffe may take Bayle and where not BAILE or Ballium is a safe keeping or protection and thereupon we say when a man upon surety is delivered out of prison traditur in ballium hee is delivered into bayle viz. Into their safe keeping or protection from prison before that he hath satisfied the Law it hath its originall or derivation from the French word Bailler and that also cometh from the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they both signifie to deliver into hand For he that is bayled is taken out of a Prison and delivered into the hands of his Friends who are his Sureties for his appearance at a certaine day to answer and be justified by the Law Sheriffs Under-sheriffs or other persons making any warrant for the summons arresting or attaching any person to appeare in any Court not having the originall Processe or Writ to warrant it upon examination and proofe thereof before the Judges of Assize or Judges of the Court c. such offender and their procurers shall be committed to the Goale there to remaine without baile untill they have paid amongst them 10 l. to the party grieved and his costs and damages as also 20 l. to the Protector 43 Eliz. c. 6. Such persons as are in Execution upon any Statute or Recognisance or upon judgement given in the Kings Court at the suit of any person they shall not be bailed until they have agreed with the Plaintiff 1 R. 2. c. 12. 23 H. 6. c. 10. F. N. B. 9. 121. a. Persons condemned in any of the Kings Courts and by vertue thereof committed to prison they shall not be bailed untill they have agreed with the Plaintiff 1 R. 2. c. 12. 2 H. 5. cap. 2. F. N. B. 121. a. If the Sheriffe doe let to baile any persons prohibited by the Stat. of Westm 1. cap. 15. to be bailed he shall be punished by the Justices of Goal-delivery according to the forme of the same Statute or the Justices may fine them as for an escape punishable at the Common Law 25 E. 3. 39. The Sheriff might at the Common Law have bailed a suspect of felony
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
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
kept and saved harmlesse and indempnified although this to do the same C L. afterwards to wit such a day yeare and place aforesaid by the said R R. was required by which and for that that the aforesaid 12 l. and 12 s. to the said G. VV upon the aforesaid first day of May according to the forme and effect of the Condition aforesaid were unpaid the aforesaid G W. afterwards to wit in such a term and yeare in the Court of c. before c. did implead him the said R R of and upon the aforesaid writing obligatory of the aforesaid 24 l. and that plea insomuch did prosecute that the same R R. not onely pounds of and upon the writing obligatory aforesaid to the said G W. was forced and compelled to pay but also divers sums of money about the defence of the suit aforesaid was forced to expend and lay out whereupon he saith that he is damnified c. Trover and Conversion J. B. by Writ c. complains of J. C. in an action of Trespasse upon the Case For that whereas the said I B. the day yeare c. at the Castle of c. was possessed of one gray Mare of the price of ten pounds as of his own and being thereof so possessed the said I B. the day yeare c. aforesaid the said Mare out of his hands and possession was casually lost which said Mare afterwards that is to say the day year c. at the Castle c. came to the hands and possession of the said I C. sufficiently knowing the said Mare to be the Mare of the said I B. and to him of right to belong and devising to deceive the said I B. of the said Mare though often thereto required the said Mare to the said I B. hath not restored but the said I C. afterwards that is to say the day year c. the said Mare to his owne use and profit converted and disposed to the great losse of the said I B. By reason whereof he saith he is damnified 20 l. And therefore commenceth this suit c. Detinue T. V. by vertue of a Writ c. by E B. his Attorney complains of R M. upon a plea that he render unto him goods and chattels to the value of 20 l. of c. which he unjustly detaineth from him c. For that whereas the said T V. the day year c. at the Castle c. did deliver to the said R. M. one Cow colour black of the value of 5 l. one gray Nag of the value of 10 l. and 14 yards of French green broad Cloath of the value of 5 l. to be safely kept and to the said T V. where he the said R M. should be thereunto requested to be delivered Yet notwithstanding the said R M. although thereunto requested the goods and chattels aforesaid to the said T V. as yet hath not redelivered but the same to redeliver hitherto hath contradicted and as yet doth contradict and unjustly detains whereupon the said T V. saith he is worse and hath damage to the value of 30 l. And thereupon produceth suit c. Trespasse For breaking downe the Plaintiffs Stall being set up in the Market A. O. complains of VV. C. of a Plea of Trespasse That the aforesaid W. C. the day year c. at S. in the County aforesaid and within the liberty and jurisdiction of this Court made an assault upon him the said A. O. and his close and house that is to say one stall there in the Market set up broke and entered and his wares that is to say drest leather to the value of 5 l. put upon his stall aforesaid displaced cut downe and spoyled and other enormious things to him did to the great damage of the said A O. whereupon he saith that he is the worse and hath damage to the value of ten pounds And thereupon he brings his suit c. For breaking the Plaintiffs Close c. I. A. complains of T. S. of a plea of Trespasse c. For that the said T. S. the day yeare c. a Close of the said I. A. called C. at S. in the County c. broke and entred and the grasse of the said I. A. then and there being of the value of ten shillings with certain goods and chattels that is to say with Kine Oxen Steers Horses Nags Mares Hogs and Sheep did depasture eate up tread under foot consume and spoyl continuing the said Trespass from the said day yeare c. aforesaid during the time of one whole moneth then next following at diverse dayes and times and other harmes to him did to the great losse of the said I. A. by reason whereof he saith he is damnified 39 s. And therefore commenceth this suit c. For a Dog biting of a Mare so that shee dyed H. S. complains of W. P. in an action of Trespasse for that whereas the said W. P. the day year c. at c. one Mare of the said H S. of the price of 10 l then and there being found did beat wound and chase and also with a Dog did bite so that by reason of the beating chasing wounding bruising and biting of the said Mare the said Mare then and there dyed And other harms to him did to the great damage of c. For chasing of Hogs with Dogs c. A. B. complains of C. D. of a plea of Trespasse wherefore he did chase two hogs of him thesaid A. B. at M. sound with certain Dogs insomuch by setting on those Dogs to bite the Hogs aforesaid That by that chasing and biting of the Dogs aforesaid the aforesaid Hogs of the price of 40 s. dyed And other enormities c. For pasturing sheep in a rotten pasture by reason whereof they dyed A. B. complains of C D. of a plea of trespass Wherefore the Close of him the said A B. at L. did break and his 260. sheep of the price of 40 l. there lately found did take and did chase them into a certain corrupt pasture within the Village aforesaid out of malice detaining those sheep so long upon the pasture aforesaid that those sheep by corruptnesse of that pasture becoming rotten and infected dyed and other enormities c. For digging and plowing the Plaintiffs ground and taking away his Corne. T. S. complains of G G. in an action of trespass For that whereas the said G G. the day year c. at c. the Close of the said T S. being one acre of arable land lying in B. broke and entred and the soyl of the said close with his plow did dig and rip up And afterwards that is to say the day year c. aforesaid at B. aforesaid and within the Jurisdiction aforesaid for that the said G G. the aforesaid Close of the said T S. broke and entred and his corne that is to say two wain loads of Oates there lately cut down
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
aforesaid in their Demesne as ofsee Between which said Closes there is a certain hedge separating each from other the aforesaid Closes which said hedge the aforesaid D. and all they whose estate the same D. hath in the Close aforesaid from time out of minde were accustomed to make repaire and sustain and say that that hedge for want of reparation and sustaining of the same was at the time of the Trespasse aforesaid supposed to be made broken down and laid prostrate to the ground and that the Cattel of the said A. and B. in their Close aforesaid put to depasture into the said Close of the aforesaid D. by the breach and decay of the said hedge did enter against the will of them the said A. and B. and the grasse aforesaid did eat up tread down and consume the same A. and B. their Cattle aforesaid freshly pursuing into the said Close of the said D. by the breach and decay aforesaid did enter to drive backe their Cattle into the said Close of them the said A. and B. and into that Close speedily drove them as it was lawfull for them to do which is the same trespasse and breach of close and feeding treading downe and consuming the grasse aforesaid whereof the said D. above against them complaineth And this they are ready to averre c. whereupon c. The Defendant upon a Replevin avoweth the taking of the Cattle doing Damage Feasant ANd the said A. by c. cometh and defendeth the sorce and injury when c. and doth well avow the taking of the said Cowes in the said place in which c. and justly c. because he saith that he is seized and at the time of the said taking was seized in one Messuage and 12 acres of Meadow with the Appurtenances in the said Towne of S. whereof the place in which c. the said Cowes were taken as parcell in his Demesne as of Fee And for that he at the time of the said taking found the said Cows doing damage in the said place in which c. the said A. those Cowes in his ground and free-hold so doing damage took as to him it was lawfull And this he is ready to prove whereupon he prayeth judgement and the returne of the said Cattle c. Misnomer in the Writ of Justicies ANd hereupon comes Alvered Pease by W O. his Attorney and saith that he being by vertue of the said Writ of Iusticies summoned by the name of Abraham Pease neither is nor can be understood the same person against whom the said E. W. hath brought his Writ by the name of Abraham Pease For he saith that he is named called Alvered Pease and by the same name and sirname from the time of his nativity always known and called without that that he is named or called Abraham Pease or by the same name and sir-name was ever known or called as by the said Writ is supposed And this the said Alvered is ready to aver and prove whereupon he demandeth Judgement of the said Writ and that the same may be quashed c. Non cepit to a Replevin ANd the said B. by S. H. his Attorney cometh and defendeth the force and wrong when c. And saith that he did not take the Cattle aforesaid as the said A. above against him complaineth And of this he putteth himselfe upon the Countrey And the said A. likewise c. Property ANd the said B. by S. H. his Attorney cometh c. and saith that the property of the Cattle aforesaid at the supposed time of their taking was in the said B. and not in the said A. And this he is ready to prove whereupon he prayeth Judgement c. Demurrer to a Declaration ANd the said B. by C. D. his Attorney comes and desends the force and injury when c. And saith that the Declaration of the said P. and the matter therein contained are not sufficient in Law for the said P. to maintain his action aforesaid against him the said B. to be had And that he to that Declaration in manner and forme aforesaid made hath no need nor by the Law of the Land is bound to answer And for causes of Demurrer in Law in this behalse the said B. according to the forme of the Statute in this behalf provided doth shew to the Court these causes following That is to say that the said Declaration doth contain double and insufficient matter and wants forme and this he is ready to aver whence for default of a sufficient Declaration in this behalse the same B. prayeth Judgement and that the said P. may be barred of having his action against him c. Joyning in Demurrer ANd the said P. saith for that he above declaring hath in his said Declaration alleadged sufficient matter in Law to maintain his said Action to be had against the said B. which he is ready to aver which matter the said B. doth not gainsay nor thereunto at all answer but wholly refuseth to admit that averment prayes Judgement and his debt aforesaid together with damages by reason of the detaining of the said debt to him to be adjudged c. If it be in Trespasse then thus PRayes Judgement and his damages by reason of the sayd Trespasse or Trespasse and Assault or Trespass Assault and Imprisonment as the case is to him to be adjudged c. If in an Action upon the Case PRayes Judgement and his damages by the occasion before specified to him to be adjudged c. OF THE JUDICIAL AND MINISTERIAL POWER OF SHERIFS TO treat of the Originall or first Institution of Sheriffs in this Common-wealth is not here necessary being already done in the tract of the County Court or first part of this our subject matter Therefore we will initiate with the office of Sheriff in which office he hath triplicem custodiam a three-fold custody viz. 1 Custos vitae Reipublicae The Conservator of the life or peace of the Common-wealth 2 Custos vitae Iustitiae The preserver of the life of Justice for no Suit doth commence and no Processe is executed but by him 3 Custos vitae legis The Guardian or Tutor of the life of the Law for after tedious and long spun suits he is to make due execution which is the very life and spirit of the Law Now as he is Custos vitae Reipub. or Principalis conservator pacis within the County he hath a Judicial authority in the other two a Ministeral 1. And first to discover his Judiciall power And as he is a preserver of the peace he may ex officio upon request command and cause another to finde sureties of the Peace and may take the same sureties by Recognizance for all Obligations that he takes to that end are as Recognizances in Law And if he see one man assault another or if an assault be made upon himselfe he may compel them to finde sureties of the
or Appraisors upon the Extendi facias over-value the Lands or goods in favour to the Debtor the Conusee hath no remedy but by motion in that Court where the Writ is returnable at the Return day or at least the same term wherein the Writ is returnable to desire that the Appraisors may take the Lands or goods at the rate they have valued them in the same manner as the Conusee is to have them But if the Conusee accept of the Lands and goods from the Sheriff or suffer the term to passe wherein the Writ is returnable he is too late and hath no remedy at all And if the Appraisors do under-value the Lands or goods in savour to the Debtee it seems the Conusor hath no remedy at all for he may at any time pay all or the residue of the debt and damages unlevied and have his Lands again if he please Yet neverthelesse the body of the Debtor shall remain in prison until the Debt be paid And if there be Sureties they shall receive no damage so long as the Debt may be fully levied of the goods of the Debtor Note that upon the Statute-Merchant or Staple all the Fee-simple lands which the Conusor had at the time of the said Statute acknowledged or at any time after shal be liable to the said Statute to whom soever they be afterwards sold by alienation Feofment or otherwise Stat. de Mercator 13 E. 1. 27. c. 9. 23 H. 8. Co. 3. 12. But if the Debtor die the body of his heir shall not be taken but his Lands in Fee that descend to him by the Conusor shall be taken as aforesaid if he be of full age or when he shall attain full age until the said debt be levied Stat. ibid. Copyhold Lands are not liable nor shall be extended Nor lease for term of life But Lease for term of years and all other goods and chattels of the Conusor or Debtor are liable and shall be extended which the Conusor hath in his own possession and to his use at the time of the Execution sued or awarded But goods demised pawned or pledged may not be taken in Execution for his debt that demised or pledged them during the time or term that they were demised or pledged 22 E. 4. fo 10. 34 H. 8. Br. Pledg 28. also goods distrained for rent amerciament damage feasant c. and are impounded in custodia legis during the time that they are so may not be taken in Execution See Br. Pledg 28. If the Conusor of a Statute-Merchant or Staple c be taken and die in Execution yet the Conusee shall have execution of his lands and goods Co. 5. 86 87. Fitz. 246 b. or if the Conusor be taken in Execution and escape yet his goods and lands shall be taken and extended upon by the said Statute for the escape and the action that the Plaintiff had against the Sheriff for the escape is no satisfaction of the debt Certificate of a Statute-merchant was sued forth and Execution sued in the same County the Sheriff returned Non est inventus for which the Plaintif sued another Certificate to the Major by reason of which the party was taken it was holden that the second Certificate was not grantable yet the party taken would not be set at liberty by 28 E. 3. 91. Execution 93. Where there are several Certificates in divers Courts upon one Statute Execution sued in the one shall not stay that in the other because they are intended severall Statutes but it seems he may sue to the Major to certifie if there be another Statute or not and so be helped 29. Ass 29. and because where a Certificate is sued in the Common Pleas and the same Plaintiff sues another in the Vpper Bench and the Iustices were certified by the Major that all was but one Statute the parties caused the Record to come out of the Common Pleas into the Vpper Bench and then a Capias shall issue out against the Conusor and yet one Conusor was taken before in the Common Pleas but it appeared that he afterward escaped 29 Ass 41. A Statute which was certified for the Testator shall by a speciall Writ be certified for the Executor F N B. 132. so where it is not sufficiently certified before so where the party keeps it in his hands so where the first Certificate is lost and if the Major will not certifie it a Certiorari shall be directed unto him F N B. 244. The Major of the Staple hath power to hold plea of things done in the Staple and upon a Statute acknowledged before him execution may be sued or in the Chancery at the pleasure of the party 9 H. 6. Iurisdiction 6. Upon a Statute Merchant a Capias issued out of the Chancery returnable in the Common Pleas the Sheriff did return Non est inventus Now Capias extendi facias shall not issue out of the Common Pleas without shewing the Statute to the Justices although he had shewed the same in the Chancery before and if the Sheriff hath returned Cepi corpus and hath the body here if he do not shew the Statute the party shall be discharged although it be lost but upon a Statute Staple he must shew the same upon the Capias awarded but not afterwards because in the same place 37 H. 6. 6 7. It was holden that if a Statute be certified the Plantiff shall have Execution without shewing of it but if he doth not shew it at the day of the return the other shall be at large although he have Execution of the body of one or of all the Defendants 26H 6. Execution 6. See the Stat. of 5 H. 4 cap. 12. Vavasor said that he saw where the Recognisee died and a stranger came in his own name and shewed the Statute and had Execution although the other came not in proper person and upon a Statute made to two if one come with it he shall have Execution in both their names and it is a common course that every stranger who comes with the Statute shall have Execution upon it in the name of the Recognisee 12 E. 4. 10. 11. Execution 14. And upon Non est inventus returned upon the Certificate where the Plaintiff died his Executors shewed the Statute and had Execution of it 17 E. 3. 31. But see 18 E. 3. 10. he shall not have it without a Scire facias vide Eliz Dyer c. Conusee of a Statute Merchant had it certified in the Chancery and thereupon had a Capias upon it and died upon the shewing of the Statute his Executors had a Scire facias The opinion was that if a man sue Execution of a Statute Merchant in divers Counties and in each for the portion viz. 20 l. in the one and 20 l. in the other County yet upon Nihil returned in one County he shall have Execution of the whole in the other
extended then it is otherwise and yet Quaere if the debt be forty pounds and nothing extended but a Lease for three yeares at five pounds a yeare or the like for then to that which remaineth the Elegit failes Hobert Rep. fo 58. If a Judgement be obtained against a man who thereupon sells his Land in whose hands soever the Land is it shall be lyable to satisfie that Judgement and to that end shall issue out a Scire Facias against the Terr-tenants If two Writs of Elegit be delivered to the Sheriffe hoth at one time the Sheriffe is to exend the moiety of all the Lands and shall give the moiety to the more ancient debt and then he ought to extend a moity of the other moiety and deliver it to the other for he cannot deliver a moiety of all the lands to one and the other moiety to the other See Attorneys Academy 109. Severall Elegits may issue into severall Counties where the Land lies If a man doth pray to have an Elegit to have the moiety of the Defendants Lands in Execution and the Sheriffe returned that he had no Lands whereupon he prayed a Capias to arrest the party but the Court would not grant it but if the Conusee c. would tarry till Lands did come to the Defendant or goods then c. But now he could not have a Capias nor a Fieri Facias And the causes that the entery in the Roll is that he hath chosen his Execution of the moiety of his Lands the which he must stand to because it is an Execution in the superlative Mich. 30 E. 3. 24. Capias ad Satisfaciendum what it is IT is a Writ by the Statute after Judgement lying where a man recovereth in an Action personall as Debt or Damages or Detinue and he against whom the Debt is recovered and hath no Lands or Tenements nor sufficient goods whereof the debt may be levyed In this case he that recovereth shall have this Writ to the Sheriffe commanding him that he take the body of him against whom the debt is recovered and he shall be imprisoned untill satisfaction be made to the recoverer And the Sheriffe must keepe him in salva et arcta custodia unlesse he intend to pay the debt himselfe For if a Prisoner be taken upon an Execution and shall afterwards let him goe at liberty before the Debt be satisfied c. The Creditor may have either an Action of Debt or an Action upon the Case against the Sheriffe and so recover his debt Fitz. 93. a. c. A man shall not have a Capias ad satisfaciend but where Capias lyeth in the Originall 11 H. 9. 18. vide Co 3. part Sir William Herbets Case 8 H. 6. 9. 22 Ed. 4. 22. Upon this Writ the Sheriffe can take nothing but the body of the Defendant for the Writ is to do no more but to take his body and to detaine him in prison till he hath satisfied the debt Co. 5. 8. When a man is in the custody of the Sheriffe by processe of Law and afterwards another Writ is delivered to him to arrest him who is in his custody presently he is in his custody by force of the second Writ by judgement of Law although he doe not actually arrest him for to what purpose shall he arrest him who is and was before in his custody Et lex non praecipit inutilia quia inutilis labor stultus And the words of the Capias ad satisfac are not onely quod capiat c. but quod salvo custodiat c. Ita quod habcat corpus c. So that although he cannot take him who he hath in his keeping yet he may safely keep him and therewith agreeeth 7 H. 4. 30. If two men be bound joyntly and severally in an Obligation the one is sued condemned and taken in Execution yet the other may not goe scot-free for hee may be likewise sued and taken in Execution untill the Plaintiffe be satisfied of his entire debt Coo. 5. 86. But if the Creditor be satisfied by the first that was in Execution the other may plead this satisfaction and be discharged 29 H. 8. tit Execut. b. 132. A woman recovering damages in a Writ of Dower she cannot have Execution of these damages recovered by a Capias ad satisfaciendum because the Capias was not in the Originall 11 H. 7. fol. 5. 2 H. 7. fol. 7. If a man be condemned in an Action of Debt and the Sheriffe hath him in Execution by a Capias ad satisfac by arresting him although the Sheriff do not return the Writ an Action of false Imprisonment is not to be brought against the Sheriffe for not making return of the Writ for the writ of Capias ad satisfca is not as other Capias that is So that you have his body before c. For in every Capias ad satisfoc the Judgement is given before and it is but to take Execution of the partie in which no answer nor return availeth Pasch 21 H. 7. fo 13. If one be in Execution by his body and the party doth release unto him all actions suits and debts he shall not have an Elegit nor a Capias because the duty is extinct 26 H. 6. Execution 7. Capias pro Fine Capias Vtlegatum Capias ad Valentiam THere are other three Writs of Capias after Judgement viz. 1 Capias pro Fine 2 Capias Vtlegatum 3 Capias ad Valentiam 1. The Capias pro Fine is where one being fined by Judgement unto the Protector upon some offence committed against a Statute doth not discharge it according to the Judgement by this is his body taken and imprisoned till he pay the Fine F. N. B. 76. Coo. 11. 42. 8. 60. If the Plaintiffe sue an Elegit after the Defendant is taken for the Protectors Fine he shall goe at large for such Execution doth discharge the body 7 H 6. 6. and 7. So if he sue by Fieri facias 18 E. 3. Execution 54. Yet upon Nihil returned he may have a Capias c. If the Defendant be taken upon a Capias pro Fine in Trespass and the Plaintiff prays that he may remain in prison for his Execution the Plaintiff not satisfied shall have an Execution afterwards So if one pray an Elegit of Lands and nothing is returned but a Rent he shall have an Elegit of the same 47 E. 3. Execution 41. See F. N. B. 246. Stat. 32 Hen. 8. Cap. 5. 2 Cap. Vtleg is a writ of Exec. after judgment of the Coroner of the county into which the Exigent Promation issued which lyeth against him that is outlawed by the which the Sheriffe upon the receipt thereof apprehendeth the party outlawed for not appearing upon the Exigent and keepeth him in salva custodia viz. in safe custody If a Capias utlegatum issueth
said C. D. his Executors Administrators and Assignes and the moneys thereof and thereby recovered to have take and detaine to his and their owne use and uses without any account thereof to yield or make to the said A. B. his Heires Executors Administrators or Assigns all which said Bonds and Covenants except before excepted he the said A. B. doth for himselfe his Heires Executors Administrators and Assignes covenant promise grant and agree to and with the said C. D. his Executors and Administrators by these presents that neither he the said A. B. nor his Heirs Executors or Administrators or any of them shall release acquit nor discharge the said Bonds or Covenants nor any action plaint or suite thereupon to be brought or any judgement or execution thereupon to be had without the assent of the said C D. his Executors Administrators or Assignes unlesse he the said A. B. his Heires Executors or Administrators shall be enjoyned thereunto by order or course of Law or equity And the said C. D. doth for himselfe his Heires Executors and Administrators covenant promise and grant to and with the said A. B. his Heires Executors and Administrators by these presents that he the said C. D. his Executors and Administrators shall and will from time to time and at all times hereafter save defend and keep harmlesse the said A. B. his Heires Executors and Administrators and his and their lands tenements goods and chattels of and from all costs charges and damages which may arise and happen by reason of any bill in equity or of any Non-suit or judgment obtained by any person or persons of or upon any of the said Covenants Obligations or Bonds to be taken for appearance as aforesaid or by reason or meanes of removing any action or suit in the name of the said A. B. his Heires Executors or Administrators against any person or persons upon the same Covenants Obligations or any of them And whereas it is agreed by and between the said parties to these presents that the said C. D. shall become bound by obligation to the said A. B. in the penal summ of 500 l. conditioned for the true performance of the Covenants articles and agreements in these presents contained on the part and behalfe of him the said C. D. his heires executors and administrators to be performed and shall also procure five sufficient Sureties before the thirtieth day of Ianuary next ensuing the date hereof to become bound unto the said A. B. in the several penal summs of 100 l. a piece with the like conditions as aforesaid Now the said A. B. is contented and pleased doth by these presents for himselfe his heirs executors administrators and assigns covenant promise and grant to and with the said C. D. his heirs executors administrators and assigns by these presents that he the said A B. his heirs executors or administrators or some or one of them shall and will within the space of one year next after the said C. D. his heirs executors or administrators shall deliver or cause to be delivered unto the said A. B. his heirs executors administrators or assignes the said Quietus est before in these presents mentioned the said A. B. his heirs executors and administrators being first sufficiently and reasonably discharged and saved harmlesse of and from all the payments penalties fines amerciaments damages dangers and other demands before in these presents mentioned upon the reasonable request of the said C. D. his heirs executors or administrators shall deliver or cause to be delivered up the said Obligations so to be made by the Sureties of the said C. D. as aforesaid to such Suretie or Sureties respectively and to their respective heirs executors or administrators to be cancelled In witnesse whereof c. The form of the Condition THE CONDITION c. That whereas His Highnesse the Lord PROTECTOR c. by his Letters Patents bearing date the c. in the year of our Lord c. did apoint nominate and make the within named A. B. High Sheriffe of the County of York which said A. B. afterwards by his Indenture bearing date c. did ordaine depute constitute and make the within bounden C. D. his Deputy and Under Sheriffe of the said County of Y. as by the same Indenture more plainly at large doth and may appear If the said C. D. his heirs c. and every of them do at all times hereafter and from time to time for ever clearly acquit exonerate and discharge or otherwise sufficiently save and keep harmlesse the said A. B. his heires executors and administrators and every of them and his and their goods chattels lands tenements possessions and hereditaments and every of them and of and from all and every of the summ and summs of money wherewith the said A. B shall be charged by reason of the said office of Sheriffwick and shall fall out not to be answered upon the accompts and of and from all action and actions plaint or plaints or debt or debts that shall be commenced against the said A. B. his heires c. by reason of any escape or escapes committed of any prisoner or prisoners arrested and not committed to the common Goale of the said County or afterwards by the act or negligence of the said C. D. or any the Bailiffe or Bailiffes or any his servants or Deputies and of and from all actions suits costs losses damages hinderances and demands whatsoever which shall or may at any time or times hereafter come grow or be to or against the said A. B his c. on his or their goods chattels lands tenements possessions and hereditaments and every or any of them for or by reason of the premisses or any of them That then this present Obligation c. Or thus THE CONDITION c. That whereas the above named A. B. Sheriffe of the County of Y. hath assigned and deputed the above named C. D. his Under-Sheriff If therefore the said C. D. the above bound E. F. and H I. their heires executors and administrators and every of them do at all time and times hereafter save and keep harmlesse and indempnified as well the said A. B. his heires executors administrators and assignes and every of them as also the lands tenements hereditaments goods and chattels of the said A. B. of for touching and concerning the returns and executions of all such Processe Writs and Warrants of what nature soeverr they be as are or shall be hereafter directed to the Sheriffe of the said County of Y. and shall be brought and delivered or offered to be delivered to the said C. D. during the time that the said A. B. shall be Sheriffe of the said County And of and from all issues fines and amerciaments which shall happen to be imposed or taxed upon the said A. B. for and concerning the not executing wrongfull executing or detaining in his hands any Writs Processe or Warrants and of for and concerning all escapes
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
been used for the Statute De donis conditionalibus shall not enure to such customary Lands but to Lands which are at Common Law and therefore an estate tayle cannot be of these customary Lands but in case where it hath beene used time out of minde Popham fol. 34. And it was holden afterwards that an estate tayle is wrought out of Copyhold Land by the equity of the Statute De donis conditionalibus for otherwise it cannot be that there can be any estate taile of Copy-hold land for by usage it cannot be maintained because that no estate tayle was known in Law before this Statute but all were Fee-simple and after this Statute it cannot be by usage because this is within the time of limitation after which an usage cannot make a prescription as appeareth 22 and 23 Eliz. in Dyer And by 8 Eliz. a custome cannot be made after Westminst 2d And what estates are of Copyhold land appeareth expresly by Littleton in his Chap. of Tenant by Copyhold c. And in Brook tit Tenant by Copyhold c. 15 H. 8. In both which it appears that a Plaint lyeth in Copyhold land in the nature of a Formedon in the Discender at the Common Law and this could not be before the Statute De donis conditionalibus for such land because that before that Statute there was not any Formedon in the Discender at Common Law and therefore the Statute helps them for their remedy for intayled Land which is but customary by equity And if the Action shall be given by equity for thy land why shall not the Statute by the same equity worke to make an estate in tayle also of this nature of the land Poph. ibidem And Copyholds are now become by usage by such estates that Law allows them to be good against the Lords themselves they performing their customes and services and therefore are guided by the guides and rules of the Common Law Dyer Trin. 12 Eliz. And to say that estates of Copyhold land are not warranted but by custome and every custome lyes in usage and without usage a custome cannot be is true but in the usage of the greater the lesser is alwayes implyed Omne majus in se continet minus As by usage three lives have been granted by Copy of Court Roll but never within memory two or one alone yet the grant of one or two lives onely is warrantable by this custome for the use of the greater number of lives warrants the lesser number but not è converso If the Copyholder by his letter of Attorney appoint the son of his Farmer his Attorney to do the services for him due for his Copyhold Such a person so constituted and appointed may Essoyne for the Copyholder but not do the services for him for none can do the same but the Tenant himself Leonard first part fo 139. Copyhold land is not extendable upon a Statute-Staple but upon the Statute of Bankrupts it is extendable Brownlows first part 34. As long as a Copyhold of Inheritance is in the Tenants hands it is not lyable to any estate or charge of the Lord as Dower Curtesie Elegit Statute c. But when it is in the Lords hands it is liable Co. 4. 22. But a custome in this case may make it chargeable Calthr 88 89. 92 93. We will now declare something of Surrenders Of Surrenders what are good and what not LOrd and Tenant Copyholder by Surrender or by nomination by force of a Custome precedent desires his Lord at his Court to admit him to the Copyhold estate and offers him his Fine the Lord refuses he cannot take the profits before admittance here is damnum injuria whether for refuall he may have an action of the Case or not And it was resolved Pasch 13 Jac. P. R. That an Action of the Case lies not against the Lord for his refusall to admit him without a speciall custome or prescription for the same Omnis innovatio plus novitate perturbat quam utilitate prodest for if upon every such refusall an Action shall be brought this will introduce many inconveniencies C. 4. 22. in Brownes case But note that in all cases of Ministeriall offices if they refuse to do their offices Actions upon the case shall well lye against them as against the Clarke of the Inrollments if he refuseth to inroll a Deed an Action upon the case lyeth against him for this but it shall not be so in cases of trusts Bolstrod second part fol. 337 338. Foords case Hill 12 Jac. If a Surrender be to the Lord generally without saying to whose use it is good enough Kitch 81. If the Copyholder surrender to the use of another and the Lord grant it to the Cestuy que use not naming the surrender this is good enough by Calthr fo 99. In a surrender it matters not if the party to whom it is be precisely expressed if by any circumstance he may be known And therefore to surrender to the Major of Yorke next of his kin or next of his blood his Brother Sister or his sonne may be good and it may be made certaine by averment So if it be to a mans Wife without warning of her or the High Sheriffe of Yorkeshire But a surrender to the use of ones Cousin or Friend is voyd for incertainty so it is if it be to the use of A. B. or C. Coo. 4. 29. of Copy-hold 96. If a surrender be made to the Lord in generall without expressing to what use it shall be taken to the Lords use Kitch 81. If a Copyhold be surrendred to the use of A. B. and his heires till he marry C. D. and then to the use of them two in speciall tayle this is valid and shall enure accordingly Calth fo 22. If a Copyholder surrender to the use of a Stranger in consideration that the stranger shall marry his daughter before such a day In this case if the marriage succeeds not the stranger shall take nothing by the surrender But if the consideration be that the stranger shall pay such a summe of money at such a day although the money be not paid yet the surrender is valid Calth fo 37. If the Copyholder surrender his land to the use of A. B. so that A. B. pay 20 l. at such a day if he please this is an absolute not a conditionall surrender Calth fol. 39. If a Copyholder surrender his Coyphold of Inheritance into the hands of the Lord to the use of I. S. paying one hundred pounds to his Executors within such a time after his death he to whose use this surrender is made takes by force of this presently Bolstr 2d part fo 275. Mich. Jac. 12. If a Copyholder surrender to the use of one for life who is admitted and dyeth he in the Reversion may enter without a new admittance Leonard first part Rep. 144. If a Copyholder bargain and sell his
whatsoever which they ever had now have or hereafter may have or they or either of them may have according to the custome of the same Mannor of in or to seven Acres of land with one Messuage parcel of the tenement called S. and of in and to two acres of Copy-hold land of the Tenement of W. c. which said premises the said S. lately had and took up and now holdeth to him and his heires after Surrender thereof made by I. W. as at the Court there holden on Wednesday the 21. day of March in the year c. more at large appeareth to the behoof and use of the aforesaid S. N and of his heirs so that is to say that neither the aforesaid I. W. and R. nor either of them nor their heirs nor the heirs of either of them from henceforth may require claim or challenge any estate Right title Dower and demand thereof to be had from henceforth shall be altogether barred and excluded and either of them is barred and excluded by this present surrender release and quit claim and for this surrender remise and release the said S. doth give a Fine to the Lord c. A Surrender of Copyhold in Court with the admission of the tenant accordingly TO this Court came A B. gent. Copyhold Tenant of this Mannor and present here in Court did surrender into the hands of the Lord of the same Mannor two acres and a half of land lying in two pieces in C. be it more or less whereof the first peece doth lye between c. and the other peece is accounted for half an acre and lyeth c. which said two acres and a half the said A. B. late in the Court did take up to him his heires and assignes after surrender made thereof by I W. as at the Court here holden on Friday the sixteenth day of May in the year c. more plainly appeareth to the behoofe and use of I. W. and R. his wife and the heires of the said I. W. which said I W. and R. present here in Court do desire of the grace of the Lord to be admitted to the aforesaid two acres half of land according to the form and effect of the Surrender aforesaid and they are thereunto admitted tenants to whom seisin thereof is delivered to hold to the said I. W and R. and to the heires of the said I W. of the Lord of the Mannor aforesaid by the Rod of the will of the Lord according to the custome of the Monnor aforesaid by the services c. and the rent of 2 s by the year saving the Right c. and he doth give to the Lord a Fine and the said I W. hath done Featly to the Lord c. A surrender and Lease made in Court with the examination of the Wife AND afterwards at this Court came the aforesaid I. S. and M. his Wife and present here in Court and the said M. being solely and secretly examined by the Steward of the same Court and consenting did surrender remise and release into the hands of the Lord of the Mannor aforesaid all their right state title possession Dower and demand of them the said I. S. and M. of in and to all and singular the premisses aforesaid with the appurtenances to the behoose and use of the said R. K. and his heires and assignes for ever in his full and peaceable possession of the premisses now being so that is to say that neither the said I. S. and M. or either of them from henceforth shall require claime or challenge any right title Dower or demand of in or to the premisses or any part or parcel thereof but of and from all action right title Dower or demand thereof to be had for ever hereafter shall be barred and excluded by this inrollment And the said I. S. for the said remise and release doth give to the Lord a fine c. A 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 AND immidiatly after the same Court the aforesaid N. B. present here in Court did surrender into the hands of the Lord aforesaid by the hands of his Steward of the same Mannor one piece of Land containing by estimation two acres of arable Land lying between the Lands of the Mannor of R. late of N. B. of the West part and the lands c. together with the wayes and pathes to the same belonging and used which said piece of Land R. B. the Father of the said F. whose heire he is late had to him his heires and assignes amongst other things after the Surrender thereof made by W. B. and E. his Wife as at a generall Court with a Leet there holden on Thursday next after c. in the yeare c. appeareth to the behoofe and use of F. D. one of the daughters of N. D. Gent. and of the heirs and assignes of the said F. under this forme and condition that if the said N. B. his heirs executors or administrators or any of them shall pay or cause to be payd to the said F. D. her heires executors administrators or assignes at the mansion house of the said R. B. in H. in the County of York Gent. the summe of twenty pounds of good c. in or upon the twenty eighth day of October next following after the title of this Court that then the said surrender shall be void and of none effect or vertue and that then also it shall be lawfull for the said N. B. his heires and assignes to re-enter into the said piece of Land and the same as in his former estate to have againe repossesse and re-enjoy the said surrender or any thing to the contrary notwithstanding and upon this the said F. by C. W. her Attorney in this behalfe is admitted thereto tenant and Seisin is delivered to the said F. her heires and assignes under the condition aforesaid and in manner and forme aforesaid by the Rod at the Will of the Lord according to the custome of the Mannor aforesaid by the services c. saving the right c. And he doth give the Lord for a fine c. and Fealty is respited untill c. A Surrender of Lands made presently in Court ANd afterwards sitting in the same Court the aforesaid F. W. present in Court did surrender into the hands of the Lord of the same Mannor in the aforesaid Close containing by estimation five acres called L. to the behoofe and use of C. W. his Brother and to the heires and assignes of the said C. to which said C. seisin thereof is delivered to hold to him his heires and assignes by the Rod at the will of the Lord according to the Custome of the same Mannor by the services c. saving the right c. And he doth give to the Lord for a fine c. And doth therefore Fealty to the Lord
admittance may be ibid. T TYthing men 327 Tanners 335 Tracing of hares 338 Treasure trove 339 Tenants by Copy of Court-Roll are obliged to appear at every three weeks end at the Lords Court-Baron 345 Tenant at will and Copyholder 359 Tenant may have an action of Trespasse against the Lord 360 No tenant by the Curtesie or Dower shall be of Copyhold lands 361 V VErdict ambiguous and incertain no judgment ought to be given upon it 25 Part of the issue found and nothing for the residue insufficient ibid. Under-Sheriff what he is 210 He hath power to execute all the ordinary offices of the Sheriff that may be transferred by the Law c. ibid. The Sheriff must take good security of him c. ibid. Victuallers 334 Vnlawfull gains 336 W WItnesses who are suficient to give evidence and who are not 22 Withernam what with the proceedings upon it 35 Weights and Measures false 335 Watch and ward 339 Waifes 340 353 Wast what it is and how it is committed 350 A TABLE OF ALL THE PRESIDENTS Contained in this BOOK A ARticles betwixt the high Sheriff and a Bayliff of a Weapentake or Hundred 266 Appeale of Murther by the wife of him that is slain 297 Appeale by the heir of the person murthered 298 Appeale of Mayhme 299 Appeal of wounds ibid. Admission of the younger son to lands according to the custome 389 B BArgain and sale of Goods made by the Sheriff by vertue of his Office 277 Bond upon a Replevin vide Obligation Bond for the appearance in the County Court vide Obligation Bond to the Sheriff for ones appearance in the Common-Bench and another in the Vpper-Bench vide Obligation C CAse for not delivering of a pawn upon tender of the money borrowed 102 Against a Carrier for losse of goods delivered to him 103 For Coals promising to pay so much as they should reasonably be worth 104 For a horse sold warranted to be sound 105 For a horse lent promising to deliver him ibid. For adgysting of beasts 106 For curing a wound 107 For laborious hire 108 In consideration that the Plaintiffe would deliver unto one E. L. certain mercery wares if he did not pay for them the Defendant would 109 Slander for calling the Plaintiffe Thiefe c. 110 Same for calling the Plaintiff Bankrupt 111 In consideration that the Plaintiff would marry E. R. the Defendant promised to make him worth 200 l. 113 For stopping up of anothers light 114 For teaching the Defendants childe the Latine tongue 115 For Dyet and time given for payment of the debt 116 Vpon an Assumpsit to save one harmlesse upon an Obligation 117 For keeping a dog accustomed to bite sheep 118 Another ibid. Against an Inn-keeper for a horse lost ibid. Vpon a horse-race 119 Another upon a horse-race 122 For keeping a child and finding it meat drink and apparrel 123 For breach of Articles ibid. Vpon a promise for the loan of a Mare which was killed in riding 125 Vpon a promise to save harmlesse a Surety against a Bond 126 Detinue 128 Condition the form of it for the performance of the Indentures between the high-Sheriff and under-Sheriff 258 Another 259 and 260 Condition for executong of a Goalership 263 Another 265 Condition that the Sheriff executing a writ may detain out of the goods and lands extended so much money c. 276 D DIstringas or County warrant 37 Duces tecum 38 Decem tales 50 Deputation for a Bayliffe of a Hundred 53 Discharge to the Sheriff for a Prisoner from him to whom the Prisoner is indebted 275 Another ibid. Declarations in debt 88 Executor against an Executor ibid. Vpon a Bill to be paid at the day of Marriage and issue upon it 89 90 91 Vpon retainder for sheoing of horses 91 Vpon an Accompt 92 Money lent by joynt partners for a certain time and to be paid to the survivor ibid. For rent in arrear 93 For servants wages 94 For not setting forth of Tithes ibid. Vpon an award 95 For Attorneys Fees 96 Vpon a Lease for Tithes 97 Vpon a Bond where one is bound to two and one dies before the commencement of the Suite 98 Another upon the same ibid. Vpon a Bond for an Executor against Sisters as Co heirs one of them being married 99 Vpon a Bond against an Administrator during the minority of the Executor of an Executor 100 F FIeri facias against an Executor 44 Vpon a non suit for costs ibid. Vpon a Verdict for the Defendant 45 After a Scire facias against an Administrator upon a Verdict had against the intestate ibid. Fine in Court-Baron desired for respite of suit to be done 382 G GRant of a Bayliwick 348 Grant of a Stewardship 341 I INdorsement of such writs as are turned over to the new Sheriffe by the old Sheriffe 160 Indenture by a high-Sheriff deputing one to be his under-Sheriff 237 Another 246 Indenture for the setting over of Prisoners and Writs between two Sheriffs 261 Indenture for the Knights of the Parliament 262 Indenture upon choosing a Burgesse to serve in Parliament 263 Indenture of Covenants to a Sheriff to save him harmlesse for returning of a Devastavit against an Executor 272 Inquisition in man-slaughter 299 Inquisition in manslaughter where one was starved and perished for want of sustenance 301 Inquisition where one is slain by misfortune by a Cart loaden with hay 303 Inquisition where one by misfortune is slain by the fall of a scaffold 304 Inquisition where one drowns himselfe 305 Inquisition where one hangs himselfe ibid. L LIberate To deliver goods taken upon original or mean processe 50 Lease and Surrender made in Court with the examination of the Wife 385 Lease made by the Lord of parcel of his Lands 388 Licence by a Lord of a Manner to a Copyholder to pull down houses standing upon Copyhold lands 390 Letter of Attorney to surrender a Copyhold ibid. O OAth of the Jury in the County-Court and of the witnesses 24 Oath of the Coroner 51 Oath of an Attorney in the County Court 52 Oath of the Sheriff 235 Oath of the Foreman of a Coroners Inquest 289 Oath of witnesses before the Coroner 291 Oath of the Foreman of the Inquest in a Court-Leet 318 Oath of a Steward in a Leet 344 Oath of the Bayliffe in a Leet ibid. Oath of a Constable in a Leet 345 Oath of the Affeerer in a Leet 346 Oath of the Aletaster c. ibid. Oath of the Hayward Beadle or Greve 347 Oath of the Foreman of the Inquest in a Court-Baron 343 Oath of the Bayliffe of a Mannor 374 Obligation upon a Replevin 41 42 Obligation for an appearance in the County Court 52 53 Obligation entred to a Sheriff for ones appearance in the Common Bench 271 Another in the Vpper-Bench ibid. Order of the Judges of Assize at York concerning essoins illegally returned into the County Court 56 P PLeas He owes nothing 133 He made no such promise and Replication ibid. He made
summon witnesses 50 Sale of Goods to the Plaintiffe levied upon a Fieri facias by the Sheriffes Baliffe 53 Sale of Goods made by the Sheriffe by vertue of his Office 277 Surrender and remise of Lands made in Court before the Steward and the examination of the Wife 383 Surrender of Copyhold in Court with the admission of the tenant accordingly 384 Surrender and Lease made in Court with the examination of the wife 385 Surrender of Lands made in Mortgage upon condition for the payment of money with the admission of the Mortgagee by her Attorney and the Fealty respited ibid. Surrender of Lands made presently in Court 387 T TOit 42 Trover and Conversion 127 Trespasse for breaking down the Plaintiffs stall being set up in the Market 129 For breaking the Plaintiffs close ibid. For a Dog biting a Mare so that she dyed 130 For chasing of hogs with dogs ibid. For pasturing sheep in a rotten pasture by reason whereof they died ibid. For digging and plowing the Plaintiffs ground and taking away his corn 131 For taking away a post ibid. For eating the grasse cutting the hedges and assaulting the Plaintiff ibid. Trespass and assault 132 Assault upon one at under age ibid. V VEnditioni exponas 45 46 Venire facias Jurator 49 W WArrant upon a Writ of Justicies 39 Warrant upon a Proclamation 51 Warrant of Attorney for an appearance in the County Court 52 Warrant upon Accedeas ad Curiam 64 Warrant of a Coroner for the impannelling of a Jury 288 Warrant to summon a Leet 316 Withernam 40 Alias capias in Withernam 41 FINIS Courteous Reader These Books following are Printed for John Place and are to be sold at his Shop at Furnivals inne Gate in Holborn Books in Folio 1. THe History of the World by Sir Walter Raleigh Knight 2. Observations on Caesars Commentaries by Sir Clement Edmunds Knight 3. Sheppards Epitomy of the Law 4. The Reports of the learned Judge Popham sometime Lord chiese Justice of England 5. The Reports of the Learned Judge Owen chiefe Iustice of the Common Pleas 6. Londinopolis or a History of the Cities of London and Westminster by James Howell 7. The History of Swedes Goths and Vandals by Olaus Magnus Bishop of Vpsall 8. The Reports of the learned Sarjeant Bridgeman 9. Cowells Interpreter of hard words in the Law c. 10. Maximes of Reason or the Reason of the Common Law by Edward Wingate Esquire late one of the Benchers of Grays-Inne 11. The History of Edward the Fourth of the Wars between the Houses of York and Lancaster by W. H. Esquire 12. The Minister of State wherein is shewed the true use of Policy by Monsieur de Siton Secretary to Cardinal Richlew Englished by Sir Henry Herbert Knight Books in Quarto 1. The Compleat Clerk or Scriveners Guide containing the Draughts of all manner of Presidents of Assurances and Instruments now in use as they were penned by the most eminent Lawyers 2. Commentaries on the Original Writs in Natura brevium 3. An exact Abridgment of the Common-Law with the Cases thereof drawn out of the old and new Books of the Law both by William Hughes of Grays-Inne Esquire 4. An exact Abridgment of the Acts Ordinances of Parl. begining at the fourth year of King Charls to the year 1656. 5. Declarations and Pleadings c. in the Upper-Bench by Will. Small of Furnivals Inne late one of the Clerks in the Upper-Bench 6. Declarations Counts and Pleadings in the Common Pleas by Ric. Brownlow Esq late Prothonotary The second part 7. Regni argumenta Consilii or a collection of Authentick Arguments in Parliament humbly presented to the view and use of this present Session 8. The floating Island by Dr. Strowd acted at Oxford 9. The Tragedy of the fair I ene the Greek by Gilbert Sumhoe Esq Books in Octavo 1. The Iurisdiction of Courts by John Kitchin of Barnards Inne 2. Books of Entries of all manner of Judgments in the Upper-Bench and Common-Pleas 3. The Grounds and Maxims of the Law by Michael Haulk of the Middle Temple 4. A perfect Guide for a studious young Lawyer by Thomas Fidell of Furnivals Inne Gent 5. The Arraignment of the Anabaptists in a Dispute at Abergavenny in Monmouthshire by Iohn Cragge M. A. 6. A Cabinet of Jewels wherein Gods Mercy Mans misery c. is set forth in S Sermons with an Appendix of the nature of Tithes and expedience of Marriage by a lawful Minister by Iohn Cragge M. A. 1. The Abridgment of the Lord Dyers Reports by Sir Tho. Ireland 2 Observations on the Office of a Lord Chancellor by the Lord Elsemore late Lord Chancellor 3. The Laymans Lawyer or the second part of the Practick part of the Law by Tho. Foster Gent. 1. The Laws of Corporations Fraternities and Guilds by W. Sheppard Sarjeant at Law 2. Transactions of the High Court of Chancery by W. Tochel 3. Brooks Cases in English by I. Marsh of Grayes Inn Barrester 4. Poems by Matthew Stevenson 5. Perkins of the Lawes of England 6. An exact Abridgment of Doctor and Student 7. Invisible World and the Mystery of Godlinesse 8. Imposition of Hands both by Ioseph Hall Bishop of Norwich 9. Clarastella by R. Heath Esquire 10. Doctor Prestons Saints Infirmities 11. A Catechism containing the Principles of Christian Religion written by Moses Wall 12 The whole Survey of a Justice of Peace his Office by W. S. Sarjeant at Law FINIS Lambert arch This Court no Court of Record * Hengham f. 8. cap. 2. placita vero de furtis melletis hutesio plagis verberibus transgressionibus ubi non agitur de pace domini Regis fracta ad Vicecomites pertinent audienda determinanda See Seldens Notes upon it f 135 136 137 138 139 140. Likewise Sir Henry Spelmans Glossarie fol. 18. 438. LL. Edovar Confess cap. 12. Chimini vero minores de Civitate ad Civitatem ducentes de burgis ad burgos per quos mercata vehuntur caetera negotia fiunt sub lege Comitatus sunt c. Why instituted The time when it is to be holden Co. Inst 4. cap. 55. Where to be kept St. anno 2 E. 6. cap. 25. Stat. 15 H. 7. cap. 24. 33 H. 8. c. 26. No Fine Amercement What actions will not lye in this Court Exigents and Proclamations to be proclaimed five County dayes F. N. B. 163. idem 395. Bract. l 3. f. 98. Fleta l. 1. cap. 15. 31 Eliz. cap. 5. Appearance Essoyn Duc. tec. Declaration Modo forma Nota. Modo forma 27 H. 8. fo 29. Count. Non-suit Empartance Continuance Rule Answer Replication Rejoynder Sur-rejoynder 〈…〉 rrer C◠Inst 1. fo 7. b. Nota. Not informed Nil dicit Generall issues Pleas specially to be pleaded Obligation Debt Against Executors or Administrators Non-age Woman covert Arbitrament Trespasse Damage feasant Rent Detinue Slander Warranty Debt Demise Trespass Nota. Liberum tenementum or Freehold Nota. Et hoc paratus est verificare Et
no such promise within six yeares ibid. Never Executor 134 Fully administred and Replication ibid. Not guilty 135 Bar by which in age ibid. Payment upon a Bill and a Release produced ibid. Free-hold 136 No action to cause one to render an accompt will lie in this Court ibid. In arrest of Judgment ibid. Conditions performed and Replication 137 138 Rejoynder ibid. Detain he doth not ibid. Bar by a generall acquittance and replication ibid. Justification of scandalous words 139 Tender of amends in Replevin ibid. Part of the debt paid the residue tendered before suit and refused and Replication 140 141 Not his Deed 141 By threats and Replication ibid. and 142 By hardnesse of imprisonment and Replication ibid. The assault made by the Plaintiff and Replication 143 The Defendant pleadeth the Plaintiff within age to bring his Action and should have brought it by Guardian and not by Attorney 144 To a trespasse in walking not guilty and as to the residue of the trespas tender of amends and Replication and Rejoynder 144 145 Misnomer in Baptism pleaded in abatement of the writ of Justicies 146 Plea in abatement for that the Plaintiff hath one name in the writ and another in the Declaration ibid. The Defendant justifies for horse meat not satisfied in answer to a Declaration in trover for the same horse 147 The Defendant plead leaves and liberty granted to him by the Plaintiff to enter and feed his cattle 148 The Defendant justifies in replevin the taking of the cattle for rent in arrear 149 The Defendant saith that the goods were taken as a pawn or pledge for money lent 150 Replication that he took them injuria sua propria without such a cause 151 Concord in assault and battery ibid. Replication No such concord or agreement made 152 The Defendant saith that as to the taking of the Oxe that he tooke it by the name of an Herriot ibid. Justification in trespasse for want of reparation of the hedges by the Plaintiffe 153 The Defendant justifies upon a Replevin the taking of the Cattel doing damage-feasant 154 Misnomer in the writ of Justicies ibid. Non cepit to a Replevin 155 Poverty ibid. Demurrer ibid. Joyning in Demurrer 156 Presentment in a Leet of petty Treason 342 Presentment of felony for burning a house 343 Presentment of a Felon ibid. Presentment of an Accessary ibid. Presentments in Court-Baron 375 The finding of the death of a Tenant and of a Surrender made to the use of his will with an admission of the Tenant according to the will ibid. The finding of the death of a Tenant 376 Pains found and set upon tenants for want of suit of Court ibid. 377 The presentment of a Surrender made out of Court into tenants hands with the admission of the tenant accordingly 377 The finding of a Surrender made into tenants hands to the use of a mans will 378 The finding of the death of a tenant and of the lands and that the youngest son is next heir according to the custom c. with his admission ibid. The finding of a sale made of Freehold lands with a distresse to the Bayliffe to distrain for want of taking it up 379 The acknowledgement in the Court of a Legacy paid ibid. A presentment of a Surrender made out of Court with the admission of the tenant 380 A presentment made in Court of an agreement made between the Son and his mother touching her Dower and the mothers release of her Dower 381 A pain set for an incroachment ibid. A pain set for the amending of the same ibid. A presentment for an offence done and a charge to the Jury to enquire and further day given for giving their Verdict 382 R REplevin 39 132 alias Repl. 40 Plures Repl. ibid. Return of a Tolt 43 Return of a Recordare fac Lo. 58 59 of a Pone 59 60 of a writ of False judgment 61 62 63 of an Accedeas ad curiam 65 66 of a Writ for the Election of a Coroner after the death of another 66 of an Exigent 66 67 68 of a Proclamation 69 of a Non est inventus 197 of a Cepi corpus in the Common Pleas ibid. of a Cepi corpus in the Vpper-Bench ibid. of a Cepi corpus and Non est inventus ibid. of a Cepi corpus and Languidus in prisona 198 of a Mandavi Ballivo libertatatis where the Bayliff makes no returne of the Sheriffs warrant or where he makes an insufficient return 198 and also where he returneth to the Sheriffe he hath taken the body and the like in case the Bayliffe returneth a Languidus in prisona or as he shall certified the Sheriff by his returne ibid. of a Scire facias where a Scire facias is returned ibid. of a Nihil to a Scire facias ibid. of Scire facias for one and Nihil for the other 199 of an Attachment and Proclamation in Chancery ibid. A Nihil returned of a Venire facias upon an Indictment presentment or information and summons returned of the like ibid. The Return of a Distringas nuper vic or Balliv ibid. of a Venire facias jur 200 of a Distringas or Hab. corp Jur. ibid. of an Exigent where one bringeth a Supersed one rendereth himselfe the other appeareth not ibid. of a Proclamation 201 of an Allocat ibid. of a Tarde ibid. of a Hab. corp where the Defendant was taken by a former Sheriff 202 of a Pone ibid. of a Scire fac for the release of Prisoners ibid. of Nihil to a Scire fac against the heir and ter-tenants ibid. of a Summons in Dower ibid. of a Cap. in manus in Dower 203 of a Summons upon an originall against an heir ibid. of a Habere facias possessionem Cap. where judgement is signed with costs ibid. of a Liberate out of Chancery 204 of an Acced ad cur ibid. of a Re. fa. lo. ibid. averia elongat and Cepi corp for damages 205 of a Rescous ibid. of a Devastavit 228 of a Nulla bona Devastavit by inquisition ibid. of a Fieri fac 229 of a Fieri fac where part of the debt is levied and for the residue a Nulla bona 230 another of a Fi. fa. ibid. of a writ where the Sheriffe dieth after execution thereof and so returned prout indorsat by the present Sheriffe ibid. of an Elegit where lands are in the Kings hands 231 of an Extent in the Exchequer 232 of a Scire fac against the heir and ter-tenants where notice is given 234 of a summons in Dower 235 Records upon a writ of False judgement and Accedeas ad curiam 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 Recognizance of a Coroner to binde witnesse to appear at the next assizes 290 Release of Lands made in a Court Baron 388 S SCire facias post diem annum 47 against an Executor after Judgement against the Testator ibid. after marriage 48 Subpoena or a Warrant to