the former Pannel and commanded to retorn eight more unto him and so proceed to Trial again in all points as formerly hath been said of first Trial. Now a Receipt spoken of a little before is where one is admitted to appear upon the Pettite Cap. where a Quod ei deforceat or a Writ of Dower is brought against Husband and Wife for Lands wherein the Wife hath some title or interest if the Husband makes default after the appearance of full Jury and suffer a Pettite Cape to go out against him the Wife if she please upon calling of the Pettite Cape shall be admitted to appear if she please upon the very calling of the Writ either in proper person or by Attorney having had out a Commission whereby her Warrant was taken to make that Attorney as it is in all Cases of Common Recovery wherein any Tenant or Vouchee appears not in person but by an Attorney and if she also have her Plea ready or forth-coming to be put into the Court and so save her and her Husbands default and she may also so do in case her Husband alone were sued for some Lands wherein after the death of her Husband she hath an Estate for life and save her Husbands default by stopping and preventing the issuing out of a Writ of Seizin against him so that her Plea be issuable and put in manner aforesaid and then the Demandant will be forced to proceed to Issue and Trial against her de novo And if a real Action be brought against a Tenant for life and he maketh default ut supra he in the remainder shall in the like sort be admitted and received having his Plea ready as aforesaid shewing his Estate in remainder but the Tenant in Receipt is after bound in Recognizance with pledges to answer the mean Profits before it be received in case the matter pass against him if it be required of him but very many have been and still are admitted without requiring any such tyes These proceedings which indeed are very good and which the Law as I conceive hath provided to save the right of a Stranger to the Action if he comes in are very often used for meer delayes to the Demandant in my judgement some of these Receipts upon what experience I found might be abrogated in some Cases as when a Tenant for life is sued after he appears and comes to plead he may pray in him that hath the Estate in remainder and thereupon a Writ of Summons ad auxiliandum will be issued out against him in the remainder whereupon he may come in and appear and plead his Title and at the Trial give it in Evidence which is as much as he can do when he appears upon the Pettite Cap. and if the Law be so to save that trouble to the Demandant of going round about upon the Receipt when the Jury are gone together and have deliberated and considered of their Evidence and to come to yield and deliver up their Verdict after they are asked whether they are agreed on their Verdict or no or who shall speak for them the Plaintiff is called to know whether he stand to his Writ or Plaint and if his Attorney appears the Verdict is taken and entred if he does not appear the Defendants Councel prays that a non-Suit be entred or recorded which accordingly is done and upon every such non-Suit the Defendant shall have Execution for his Costs if the Law give Costs to the Plaintiff had he recovered in that Action and there falls sometimes in some Cases a special Verdict as well as a general Verdict a general Verdict is when a Jury finds in general the matter in Issue either for the Plaintiffs side or Defendants side no points or matter in Law opposing it but a special Verdict is when upon the Evidence the whole matter of Fact on both sides is apparent to the Jury save that a point or question in Law falls out to appear upon the whole Evidence which the Jury cannot resolve wherefore the Court assents and Councel on both sides agree that a special Verdict be drawn in that case And thereupon the Councel on both sides agree and consider forthwith at the Bar upon the main material points or heads to be agreed and delivered up by the Jury which is afterwards drawn at large in form and that Verdict will be that the Jury find all matters of Fact material to make the Case on both sides and make a doubt in some points in Law which fall to be in the whole case and matter and conclude that if the Law in such points be thus and thus they find for the Plaintiff and cess him Damage and Costs or otherwise as the Action requires but if the Law in that point be thus and thus or otherwise they find for the Defendant and after this Verdict is drawn and perfected and both Parties Councel assent to the truth thereof it is entred and Copies thereof made for the Judges and a time appointed to argue it for the Court is to Judge and determine all points and questions doubtful in Law to the Jury though the Jury be to determine and accordingly to deliver up their Verdict on all matters of Fact as be given them in Evidence and leave the doubt in Law to the Judges determination and judgement and at the time appointed Councel on both sides argue the Case that falls out to be the point of Law in the Verdict by citing as many Cases as they can produce to make the stronger for the Law in the Case to be on their Clients behalf and by enlarging with their own Reasons and Expositions upon the same Cases and then or perhaps another time the Judge make each of them an Argument upon what Cases as were cited and on all as had been said on both sides and then or what other time they are disposed deliver their opinion in the point in Law either for the Plaintiff or for the Defendant and accordingly Judgement shall be entred And for every Sessions from the time of giving up the Verdict by the Jury till Judgment be given there is an Entry of Curia advisare vult which is in the nature of a continuance It falls out sometimes but indeed very seldom that a Jury after they are Sworn and hear their Evidence are discharged without delivering any Verdict at all and none of them wihdrawn as is before spoken of when Causes are referred after Evidence heard but an absolute discharge entred by the Court wherein yet there is always mentioned ex assensu partium and this falls out to be when Councel of the one side demurs on the Evidence given on the other side and the Councel from whom the Evidence is given joyns in demurrer whereupon the Evidence that was given to be drawn up with the demurrer to it and then the Jury as aforesaid discharged and the points that falls out were in Law upon the Evidence left to the Judgement and
Defendant die or against the Son and Heir of the Defendant or against the ter-Tenant of the Lands which the Defendant held at the time of the Judgement And also when a single Woman marries after she recovers she must have a Scire fac in her and her Husbands name or where there are two Plaintiffs and one died after Judgement and before satisfaction there the Survivor must have a Scire fac and it is very fit a Scire fac be where two are such joyntly and one of them died after Judgement and before satisfaction that a Scire fac be had against thâ— Survivor Defendant that the future Execution be only against the surviving person for otherwise it muâ—â— be issued out against him that is dead as well as against him that is living for otherwise no Record will warrant the issuing of any Execution foâ— or against them who before that Scire facias were therein never mentioned in all which Scire facias theâ—â— must be a mention or suggestion 〈◊〉 the Cause thereof In a Scire facias against one Executor or Administrator for a Debt recovered against the Testator or Inteâ—state he may plead as he might to as Action commenced for the same thing against him Ne unques Exec. c. oâ— Administratio nunquam Commissa fuit but his safest course will be Plene administravit but if there were anâ— Judgement against the Testator 〈◊〉 Intestator that must be pleaded iâ— special or otherwise he shall have 〈◊〉 benefit thereof when he comes 〈◊〉 discharge the Assets that shall be charged upon him upon his general Plene Administravit The Scire facias against the Heir is where any Heir hath any Lands fallen upon him from Father or Kinsman without any conveyance formerly made to him thereof or against the ter-Tenant is where any one doth occupie and hath purchased Lands that were the Lands of him against whom any Recovery was had at the time of the Judgement given for all such Lands are lyable to the Judgement and in these Cases the Defendants in the Scire fac are to appear and defend themselves if they can the ter-Tenant by pleading some Conveyance made of the Lands before Judgement or something else as his Case requires and the Heir defendeth himself most commonly by pleading Riens per discent which is sometimes generally and some other times specially pleaded now to plead it specially is to say he hath nothing by discent praeter c. to wit save ten acres of Lands or such a quantity in such and such Townships for if the Heir be sure the Plaintiff cannot fasten that he hath any Lands by discent he may safely plead the general Riens per discent but if he hath not from his Father or Ancestors some thousand acres and but one acre or two by discent and all the rest being a thousand or two thousand are not so he must except the two acres in his Plea without which the Plaintiff upon the general Issue pleaded if he prove the Defendant hath one or two acres by discent shall have a Writ not only to extend that but all the rest of the Land that he holds as were the late Lands of him against whom the Judgement was though he held them by conveyance and came not by discent whereof he must be seized in Fee-simple at the time of the Writ brought against him or else he is not lyable and upon Judgement had against Heir and ter-ter-Tenants the Plaintiff is to have Execution to extend the whole Lands thereto lyable till the whole money recovered be thence levied If Judgement in any Action or on a Scire fac against an Executor or Administrator the first Execution is a â—ieri facias de bonis testatoris for the â—rincipal Debt and bonis propriis for â—he Damage thereon if the Sheriff â—o return that the Executor or Administrator hath no Goods unadâ—inistred then the Plaintiff is without remedy against the Party but is â—y an Action upon the Case to take is remedy against the Sheriff for â—â—e return is not held sufficient or â—ny good return in Law but if the â—heriff returns a Devastavit c. then Fieri facias de bonis propriis goes out â—o leavy the whole as well the Debt â—â—s the Damage out of the Executor or Administrators own Goods which return also proves sometimes very dangerous to the Sheriff for â—n returning of a Devastavit against â—ome Executor or other wherein â—evera it lies not that Executor may â—â—ring his Action against the Sheriff â—nd recover very great Damage against him therefore the Sheriff is â—n a strict case and he should do nothing rashly but all things warily â—nd advisedly and so he cannot do amiss And upon that Fieri facias bonis propriis if the Sheriff return nibâ—habet c. then the Party Plaintiâ—â— shall have a Capias ad satisfaciend against the body of the Executor oâ— Administrator There are many other things which are requisite for an Attorneys knowledge as the knowledge in the solicitation of quashing or traversing of Indictments or Presentments aâ—â— in levying of Fines and suffering common Recoveries for better assuring of Lands and some other things which would prove too tedious to insist upon for I confess have been in some things before oveâ— tedious already therefore I shaâ—â— leave them to learn and to seek oâ—â— by their own industry the knowledge of them if they conceive the pleasure in them or the gain gottâ—â— thereby will countervail their painâ— And indeed I rather omit to speak any thing touching the quashing and traversing of Indictments for it matters not much what such Person 〈◊〉 gives occasion to be presented oâ— indicted may suffer for defect oâ— knowledge that way in his Attorney for Councel if well paid as such Person to avoid their conviction and consequently their penalties and punishments will or at least should do will sufficiently direct them And for the knowledge in suffering of common Recoveries and levying of Fines it belongs altogether to Councel to be managed and directed without an Attorney be in something able to ease the Councel as by Drawing Titlings and Concords which an Attorney who that way obtained good experience may do otherwise I hold him not fit to meddle therein or to be instructed least trusting to his Instructions without further knowledge he may spoil his Clyents Conveyances and thereby do him therein more harm perhaps then by his negligence or ignorance in dealing for his Clyent in several petty Causes It is very behoovefull for an Attorney to know at least the forms if not the nature of all Writs and the Retorns of them especially of such Originals second Writs Jury Writs and Writs of Execution as be most used and expedient for his practice And to know well the Fees of the Prothonotory and the rest of the Officers of the Court for without some knowledge in these Writs and Retorns his Clyents Cause may be delayed and perhaps sometimes overmuch
relation to his practice yet I durst not presume to proceed to enlarge thereon lest I should be justly rebuked In some Cases there will be no Plea put in or Issue joyned the first Sessions but the Defendant upon some occasions must move for an Imparlance which is called Licentia interloquendi for brevity Li. Lo. being a granting of time to imparle between that and the next Sessions or to plead by the first day of the next Sessions or some day in the Vacation as the Court shall think fit to appoint or both parties agree to be entred tunc pro nunc for there is a general and special Imparlance and sometimes the Plaintiff will have cause to imparle as well as the Defendant when after the Defendant hath answered or pleaded he is not ready to reply for in all or most Actions begun at a Sessions there must be Recovery by Default or after appearance and Declaration either an Issue Imparlance or a Nihil dicit if the Plaintiff do as he may call for proceedings without both parties will be at a stay by consent wherein commonly a Nihil inde is for that time entred on the Writ or Declaration in which Cause the Plaintiff if he please may proceed the next Sessions after as formerly he might And in such Actions wherein Issue the first Sessions is not joyned if the Plaintiff will proceed the next Sessions he must then look the Docket to know how the matter stood the Sessions before and continue the same unto the Book of Imparlance according to the words of the Docket which may also be done the second Sessions but paying the Prothonotory for the continuance If Causes have slept after appearance and before Declaration be put in and the Plaintiff will not appear to proceed the Defendant if he desires to go on must move the Court to appoint the Plaintiff a time to declare or reply c. as the Case requires and in default thereof that a non-Suit may be entred which the Court of course will grant and the same Rule being entred and not performed then the non-Suit will be entred and if it be after the Plaintiff hath declared the Defendant will have his Costs and an Execution for it if it be not in such Actions wherein Costs do not lye for seldome or never any Costs is had by the Defendant if the Plaintiff become non-Suit before he declares for I knew never any had or granted I should towards the end of the foregoing leaf where I mentioned view lay not in a Writ of Entry Sur Disseizin declared that it did lie in the other Writs as of Dower Writ of Right and Formedon wherein after Declaration is put in and a Rule given to the Tenant to Answer the Tenant may demand view of the Lands which must be done in Court or Office before the Rule be quite out which view so demanded is granted which excuseth the Tenant of making any Answer till the Demandant sues out the Writ of View whereunto as well the Tenant must appear as the Demandant declare de novo by a Similis Narratio and the Tenant must be careful to observe his time to demand the view for it is not grantable after a general imparlance and if the Tenant slips the time he shall not come to it again and he must be more careful to appear or essoin for an essoin will lie at the calling of the Writ of View else the Demandant will then recover seizin of the Lands and have a Writ of seizin and if the Defendant essoins he will gain a day longer to appear and then must appear whereupon the Demandant declares by Similis Narratio mutat mutandis as is aforesaid There are at the great Sessions sometimes other Actions as of Replevin Detinue Accompt Rationabili parte bonorum Partition Waste Actions upon Penal Statutes Curia Claudenda de muliere abducta cum bonis viri Audita Querela and others which have but ordinary proceedings as hath been treated in some other Actions before spoken of whereupon I will only speak a word or two of the nature of each of them Replevins most commonly are brought in inferiour Courts and afterwards removed to the Sessions wherein the Plaintiff declares and the Defendant avows as his Case requires and afterwards the Plaintiff is to put in his bar which is called a Replication in another Action And in this Action both Parties are Plaintiffs and may recover for the Defendant if he makes good his Avowry is to recover his Rent or what else he distrained for with his Costs and Damages at the Trial but if the Plaintiff be non-suited the Defendant is to have a Returno habendo to restore the Cattle distrained by him to his custody as they were before replevied whereby to satisfie his demands But then the Plaintiff if he will may have a second Deliverance and go on again to Trial but if the Defendant recovers in this he is to have a Returno habendo unrepleviable but if the Plaintiff recovers he is to have only Damages for the wrongful distraining of his Beasts and in case the Goods cannot be replevied a Withernam may be had to take the Parties own Goods that did distrain in value c. there is also a homine repligiando for releasing a man detained by another person except for some offences which are mentioned in the Writs and there is sometimes a Capias in Withernam that issues out it is too tedious to express all things concerning them and therefore I leave the Reader if he be ignorant to take pains to learn them out of better Authors as I did In detinue the Plaintiff is to recover the things detained and in default thereof the value of the same in money which the Jury usually finds The same Process is in Partition and in Waste and Accompt which is Summons and Distress but in Partition and Waste the Demandant will recover by default upon the third Writ if the Tenant appears not as in some other former Actions treated of appears And in these two Actions of Partition and Waste there lies no Costs but treble Damages and the place Wasted is recovered in a Writ of Waste And in Partition there be two Judgements one after the Verdict which is no more then siat inter eos partitio and the other upon Return of the Writ awarded to the Sheriff to make the Partition which must be upon motion and is quod partitio praedicta firma stabilis teneatur imperpetuum And in a Writ of Waste the Demandant may depending the Action move for a Writ of Estrepement and is ordinarily granted being a Writ to the Sheriff to restrain and prevent the making or committing any further waste upon the Land Whilt the Action is depending Actions upon penal Statutes are usually brought by way of Information wherein a Distringas is the next Process and the Issue Verdict and Judgement therein if found by the Prosecutor are as the several
Practica WALLIÆ OR THE PROCEEDINGS IN THE Great Sessions OF WALES Containing the Method and Practice of an ATTORNEY there from an ORIGINAL to the EXECUTION Whereunto is added The Old Statute of Wales at large And an Abridgement of all the Statutes uniting Wales to England with Tables of the Fees and the Matters therein contained By Rice Vaughan late of Grays-Inne Esquire LONDON Printed for Henry Twyford John Streater and Eliz. Flesher Assignes of Richard Atkins and Edward Atkins Esquires 1672 Cum Gratia Privilegio Regiae Majestatis Academiae Ganwbrigiensis Liber To the Honourable Sr. JOB CHARLETON Chief Justice of Chester ROBERT MILWARD Esq One of the Commissioners of the Privy Seal Sir THOMAS JONES Serjeant at Law KENRICK EATON Esq Honoured Sirs THIS Tract how little soever yet contains within its Circuit the Interest and Concerns of many worthy and Honourable Persons to whom the late Author was in hopes it would be no less acceptable then beneficial especially if admitted into your protections who for the greatest Reason understand the management of all Affairs therein discoursed You cannot but know the many alterations that happeneth in those Counties upon the uniting thereof unto the Crown of England for the better understanding of the then settlements there upon which the proceedings of these Courts are grounded there is now added the effects of all the Statutes yet remaining in force So that in this short view you see the basis and superstructure of the Law as it stands setled by Statutes and the usual and ordinary proceedings thereupon with the just Fees all reduced to our modern Scale which in the dead Author's behalf I offer to your Honours desiring to approve my self in all things Your Honours devoted Servant T. M. THE TABLE A. ACtion how to commence it in the great Sessions of Wales page 2. Actions real proceedings therein speedy p. 6 7. Attorney must take care to understand his Clyents business rightly p. 7 8. 36 37. 70 71. Alias dictus where necessary è contra p. 9. Account proceedings therein p. 26. Actions upon Penal Statutes how to be brought ibid. Audita Querela where it lyes and for what p. 28 29. Accedas ad Curiam where it lyes and the nature of it p. 29 30. B. Bill and Queritur how they differ p. 2 3. The return thereof speedy and the reason and effect of it p. 3 4. Bayl who appears upon Bayl must be discharged upon Bayl. p. 16. 35. C. Charges in a Suit in Wales where the Debt exceeds not 40 d. p. 6. Concessit solvere the nature thereof and Plea therein p. 13 14. Cape Petit when to be awarded and when the grand Cape p. 16 17. 51. Costs where it shall be paid p. 17. 22. 26. Curia claudenda the nature thereof proceedings therein p. 27. Certiorari the proceedings therein p. 32 33. Challenge where it lyes and why p. 38 39. 40 45. D. Defendant not prejudiced but by his own Laches and why p 5. Declaration when it must be b ought in and filed p. 11. Damages a Writ of Enquiry of Damages where it lyes p. 15 16. Distringas Alias Pluries and Plus Pluries Distringas where to be sued out ibid. Dower the proceedings therein p. 16. Where a Writ to assign it shall be granted p. 17. Detinue the nature of the Action and the proceedings therein p. 25. E. Execution how attainable p. 5 6. 60. ad 71. Essoyn without Warranty the ground of an Iterum Summoneas p. 9. Error Writs of Error where they lye and for what p. 29. Proceedings therein p. 30 31. Executions several sorts thereof p. 60. ad 70. F. Formedon the Tenant may vouch therein p. 19 20. False Judgement Writ of false Judgement where it lyes p 29. Proceedings therein p 31 32. Fees of the Prothonotary of North Wales in Causes real and mixed p. 83 84. Fees in Personal Actions p. 85 86 87. Other Fees rated and setled p. 93. ad 100 H. Homine Replegiando where it lyes p. 25. I. Judgements by default how obtained p 4 5. 9 10 11. Iterum Summoneas where grantable p. 9. Judicium si what it is ibid. Issues where to be returned p. 14 15. Imparlance where grantable which in Latin is called Li. Lo. p. 20. Special and general their difference p. 21. Jury their duty p. 49. ad 60. M. De Muliere abducta cum bonis viris the nature of it and proceedings therein p. 27. N. Non-suit where it shall be entred p. 17 22. Nihil inde when and where to be entred p. 21. Ne recipiatur where it may be entred p. 33. O. Original in what cases necessary p. 10 11. Oyer where it may be demanded p. 12. P. Plaintiff what he must do to obtain excution p 5 6 9 10. Pleas dilatory seldome admitted in the Courts of Wales p. 6. Pleadings usual in an Action of Debt p. 11 12. Pleas in other cases p. 12. Proceedings at the second Sessions when Issue is not joyned at the first p. 21. Partition the proceedings therein p. 25 26. Proceedings general in all causes p. 38. Q. Queritur the words thereof in divers cases p. 14. Quod ei deforceat the Writ and proceedings therein p. 16 17. R. Rule general and peremptory p. 11. Right Writ of right is conclusive and the Tenant may vouch therein p. 19 20. Replevin the nature of the Action and the proceedings therein p. 24 25. Returno habendo where and when to be granted p. 24 25. Rationabili parte bonorum the nature of it and proceedings therein p. 27 28. Recordare where and for what it lies p. 30. Rules setled for businesses at the great Sessions p 75 76 77 78. Rules in the Chancery there p. 79 80 81 82. Recovery common Fees therein p. 88 89 90. S. Sessions great Sessions in Wales the time of the summoning thereof p. 1 2. The proceedings therein p. 2. They have a Chancery in themselves p. 7. Summon◠and pledges to be returned p. 9. Summons only in some cases p. 11. Sequatur sub suo periculo a Writ where it is grantable p. 19. Summons ad sequendum simul cum where necessary p. 19 20. Summons and severance where necessary p. 20. Similis Narratio what it is p. 23. Statuta Walliae temp E. l. p. 101 ad 149. Statutes for uniting Wales to England p. 150 ad finem T. Titlixg of Actions truly very material to the Cause p. 8 9. V. Variance where pleadable and why p. 8. View of Lands where demandable p. 23. W. Wager of Law where admitted p. 11 12. Withernam the Writ where and why grantable p. 25. Waste the proceedings therein p. 26. Wales Statutes of Wales in the time of Ed. I. p. 101 ad 149. Wales united to England by several Statutes and the Abridgement thereof p. 150 ad finem The Manner of the Proceedings in the Courts of the Great Sessions in the Counties of Montgomery Denbigh and Flint within North-Wales as it now is ABOUT three
in Actions upon the Case for Debt where the proof must be punctual with the Declaration In all Actions of Trespass Trespass upon the Case Trespass and Ejectment the words of the Writ or Queritur to the Sheriff are Quod ponet per vadios salvos plegios and on every Writ where these words are the Sheriff is to retorn Issues which must be more or less as the nature greatness or condition of the Cause requires which if he doth not the Court upon motion will command to heighten or encrease the Issues thereby to compell the Defendant to appear and to expedite the Plaintiffs Cause to Trial because it is well known that in all these Actions the Plaintiff cannot recover by default for want of appearance but after appearance if the Defendant pleads not the plaintiff may have a Writ to enquire of Damages as hereafter appeareth If the Defendant appears not the Plaintiff must sue forth a Distringas an alias a pluries and a plus pluries Distringas and so in infinitum till appearance be had and upon every Distringas the Sheriff is to encrease the Issues or rather at least to double them but if the retorning of Issues will not compell the Defendant to appear then the Sheriff may be compelled to retorn a Nihil habet in Balliva mea per quod distringi possit c. and upon that Retorn a Capias may be had to apprehend and attach the body of the Defendant to answer c. And if thereupon the Sheriff retorns a Cepi Corpus c. the Defendant being brought to the Bar shall upon motion be ordered to remain in the Sheriffs Custody till he find Bayl or Pledges to answer such Recovery as shall be had against him for it is an observed Rule he who comes in or appears upon Bayl must go out or be discharged upon Bayl. If the Defendant after appearance plead not then the Plaintiff is to move in all the last mentioned Actions for a Writ to enquire of Damages and then the awarding of it must be entred which in some respects is in nature of a Judgement and upon the return of it and of the Juries Inquisition Judgement for the Dammages and Costs is to be entred but not used without a special motion to have it granted for the Defendant may object many things against the Inquisition and thereby prevent the filing of it and so perhaps put the Plaintiff to take out a new Writ In Writs of Dower quod ei deforceat the second Writs are Summons and the third is a grand Cape upon which if the Defendant appears not the Demandant is to recover by default and to have a Writ of Seizin of the Lands but the Tenant may appear upon the grand Cape and save or excuse his default which is very seldom and not so easily done if the Demandants Councel will urge all that is just and requisite by Law for his Client to demand and require before the Tenant be admitted to appear If after Appearance and Declaration put in and three Rules past the Tenant pleads not a petty Cape is to be awarded against him and thereupon Judgement shall be entred of course and execution awarded When the Plaintiff or Demandant after Declaration put in do not proceed the Defendant or Tenant may call him to proceed and if he makes default a non-suit will be entred and the Defendant or Tenant shall then have Costs in all Actions wherein the Plaintiff or Demandant ought to have had them if he had recovered In a Writ of Dower where the Husband died not seized there is no Costs for Demandant or Tenant but where the Husband died seized the Demandant recovers as well Dower as Costs and Damages which the Jury always finds viz. the value of the Profits of the third part of the late Husbands Lands since his death as the Jury shall have Evidence to find the worth or value but where the Recovery happens to be by Default and so without Jury then there is a Writ to be directed to the Sheriff as well to assign Dower to the Demandant as to enquire by a Jury whether the Husband died seized or not and if he did to enquire of the value of the Lands and upon retorn of that Writ if the dying seized be found the Demandant shall have a Writ of execution for the third part of the Profits according to the Verdict and for her Costs of course The common and ordinary Writ of Dower sayes in the close thereof Vnde nihil habet but in a Writ of right of Dower as where one received part of her Dower and sues for the rest in the same Township these words of Vnde nihil habet must be left out which difference is to be usually read and seen in several Books which an Attorney should necessarily learn that he may know which Writ to take out when his Clyent tells his Case to him lest his Councel may undervalue him for his ignorance in common and ordinary things Upon every Writ of Quod ei deforceat the Demandant after appearance may declare either in the nature of a Writ of Entry sur disseizin or in the nature of a Writ of Right or in the nature of a Formedon which are of divers sorts If the Demandant recover in a Writ of Entry he recovers also Costs and Damages and so shall the Tenant if the matter pass with him but in the two other last mentioned Writs there are no Costs to be had on either side and on the Writ of Entry there lyes no view but in the rest it doth as hereafter shall be more fully declared A Writ of Right is a concluding Action because it is of the highest nature and in it and in a Formedon the Tenant may vouch and then a Writ of Summons goes to the Sheriff to summon the Vouchee whereon if he retorns Nihil habet c. there goes out an alias and a pluries and then a Sequatur sub sue periculo And in some Cases in these Quod ei deforceats and in other Actions where the Actions cannot be well laid or commenced but in the name of several persons whereof some of them will have no mind to bring or prosecute the same it will be requisite to take out Writs of Summons ad sequendum simul cum and Summons and Severance which Councel must direct and in all Cases of that high nature there is indeed nothing to be done without his directions which the Attorney will be the better able to observe and prosecute if he understands them as in some measure he should And in some cases the Demandant may vouch and become Defendant when he shall defend his Estate against such Recovery as shall be pleaded against him so that there are divers other thing wherein there is a great deal of learning in those Formedons and Vouchers worth any mans knowledge towards the Law and though fit and requisite for an Attorney to know as much as is in
Statutes do direct or else a not guilty The Action of Curia Claudenda and do muliere abducta cum bonis viri are in some respects especially that of de muliere abducta c. in the nature of an Action of Trespass the Curia Claudenda being an Action brought by one against another for not securing or enclosing the Fence or Hedge lying between both their Grounds and time out of mind as urged by the Plaintiff usually made up and fenced by the Defendant and all other Owners of his Lands the other de muliere abducta c. is for taking away the Plaintiffs Wife with some part of the Plaintiffs Goods without alledging of which Goods and that also in particular the Action will not be well laid In all my time of Practice I saw but one Action of each of these that is one of Curia Claudenda in Flint-shire about 30. years ago and one de muliere abducta c. in Denbigh-shire 24. years ago wherein 200. l. Damages were recovered The Rationabili parte bonorum is when a Widow upon the custome of North-Wales sues the Executor of her Husband for the moyety of her Husbands personal Estate or when a Brother or Sister upon the same custome sues for a share as may more at large appear in Law Books in which Action all is recovered in Damages being what the Plaintiffs Witnesses can make appear the Moiety to the Wife or the share of the Brother or Sister to be really worth through all the personal Estate Audita Querela lyes when one is apprehended and imprisoned for Debt and Damages recovered against him and against another person who was principally Bayl or Surety with him for the same Debt and when that other person had formerly been apprehended for the self same Debt and Damages and hath satisfied the same for it will not lye without real payment or satisfaction was made by the other person that was formerly taken in Execution though he never lay so long in Goal and came out some way or other without satisfying the party Plaintiff or it will lye for one as became Bayl or entred into Recognizance though the Debt or Recognizance be not really paid and satisfied but the Audita Querela â—n that Case must be brought before the parties attain to the full years if the Audita Querela be made good but a discharge out of the Goal and from the Recovery Recognizance or Execution there are original Writs at the Sessions not spoken of before videlic t a Writ of of Error a Writ of false Judgement a Certiorari or Recordari The Writs of Error is to move the Record of any Recovery had in any inferiour Court which is a real Court and so a Court of Record into the great Sessions so that the Errors therein if any be may be there heard and examined A Writ of false Judgement or sometimes called Accedâ—s ad Curiam is to remove the Record of any Recovery in a mean or base Court which is a Court that hath not power to hold Pleas but under forty shillings to the Sessions A Certiorari for removing any Action depending before it be tryed by Jury in any real Court or Court of Record which hath power to hold Plea above forty shillings which are Courts held by Charter in Corporations or Lordships and in some Lordships Marchers by prescription unto the Cost of the great Sessions there to be proceeded upon and go to Issue and Trial if the Plaintiff when it is removed will prosecute and follow it A Recordaâ—e is to remove any Action begun and not tried in the said base Court under 40 s. to be proceeded on as is aforesaid touching the Certior at the Sessions Now for proceedings in the said Writs of Errours false Judgement Certiorari and Recordari thus much which followeth The Writ of Error after it is granted must be delivered to the Steward or Judge of the Court where the recovery was had and he must certifie the Record to the next Sessions or an Attachment lies against him And when it is there entred he that put in the Record must assign Errours by his Councel and sue forth a Scire facias ad audiendum Errours directed to the Sheriff at the return whereof if a Scire fcci be returned the Defendant in the Writ of Error must appear and plead to the Assignment of Errours which is In nullo est erraetum in Common Pleas and if he doth not appear and plead the Court may proceed by default to hear or rather to examine the Errors and in both cases there must be a day appointed for reading the Record and then after part thereof is read the Errors are opened by Councel and if the Cause be argued on both sides thereupon the Court will either reverse or affirm the Judgement and if Judgement be reversed the Plaintiff in the Writ of Error shall have his Costs but there are no Costs upon reversal of a false Judgement as shall be said hereafter And if Judgement be affirmed the Party shall have Execution as well upon his former Judgement as for what Costs and Damages shall be awarded by the Court to him for that delay A Writ of false Judgement is directed as well for Judgement given in other mean Courts as in his own County Court for such as are Judges in those Courts have not the return of Writs but in this Writ there is a far shorter proceeding when the Record is put in then in the Writ of Error for here needs nothing after it is put in but Councel to move to have it read which being done Judgement is either reversed or affirmed If reversed the Defendant in the Court below who is the Plaintiff in the Writ of false Judgement is to have a Writ to be only restored to what he hath lost that is to what he hath paid upon the former Judgement if any to have no Costs but the bare sum he was driven to pay upon the former recovery in the Court below If affirmed as seldom or never it is then the Plaintiff in the inferiour Court is to have Execution out of the Sessions for what he formerly recovered without Costs A Certiorari is to remove an Action above 40 s. as is aforesaid out of a real Court or Court of Record before any Judgement or Trial be had therein in that Court. And in that and in the Recordari such as sue them forth are to deliver them into the Sessions by their Attornies having first called them from such as are to return them to wit the Steward or Judge of the Court of Record for the Certiorari as in the Writ of Error before and to call to the Sheriff for the return of the Recordari to whom the same as before is said 〈◊〉 false Judgement is directed and are to be proceeded upon as in all other Actions of the nature they be from the beginning only that Writ serves for an Original or a Q 〈◊〉
Determination of the Court which sometimes after Argument is given and entred for Plaintiff or Defendant as is before spoken where a special Verdict is given and therefore I will not enlarge further thereon having stood somewhat longer on manner of arguing and determination of a special Verdict then altogether concerned my purpose being to direct an Attorney how far he was to act in that and in this It is the Councels part to manage all things Again when a Jury after they heard their Evidence and deliberate thereon comes to deliver their Verdict if the Plaintiff when he is then called becomes non-suit it is requisite that the Defendants Attorney have care which I omitted to speak of when I formerly spake of a non-suit where it had been more proper that is to say a special Entry made of that non-suit that it was after Evidence whereby the Record may be as several Presidents are for it drawn up accordingly for there is a very great difference and strong one when occasion is to be urged between a common ordinary Non-suit before Evidence and a Non-suit after full Evidence on both sides given for it is near as good as a Verdict for the Defendant And in so doing the Attorney may perhaps benefit his Client far more then what he had formerly done for him in this Cause if the Plaintiff should afterwards stir therein and bring his Cause about again to another Trial. After Recovery or non-Suit there may be several Writs of Execution had by the party that recovers though but one at a time for to attain the fruits of his Recovery which Writs in Debt and all other personal actions are either a Capias ad satisfaciend a Ficri facias or an Elegit the one being to take the body the other to seize on the party goods and chattels the third to find the moiety of his Lands that he had at the time of the Judgement given and all his Cattel except the Cattel of his Plow If an Elegit be taken out the party can resort to no other Writ â—till the time expires that he must sue forth a Sci. fac for to renew his Judgement if a Capias be taken out he cannot resort to a Sci. fac but after a Fi. fac there may be a Cap. had upon retorn of Nihil habet in Balliva mea c. After an enquiry is made upon an Elegit and Lands found the party that sued it out if he conceives that what is done upon it it may satisfie his Recovery is to retorn it and have it filed in the Prothonotary Office or else keep it with him and accept a time to take out another Elegit or another Writ if it be to be obtained for if he files his Elegit he is thereby concluded and barred from having any further Execution though by that which he filed he could never attain to the third part of his Recovery If a Sheriff upon a Capias retorns Non est inventus the party may have an alias if he please or an Exigent which is to the Sheriff to proclaim the Defendant at the fourth or next County Court and at the fourth County he is to be outlawed by the Coronors Judgement and when the Exigent is retorned then will issue out a Capias ut legatuâ— which is either general or special the general is to take the body only and the special is as well to take the body as to find or to seize on the party his Lands and Goods to the Kings use till the party clears himself of the Outlary But I never understood in all the time of my experience and upon all my enquiry how or in what manner legally a man upon an Outlary had out of the Sessions and Lands found thereon may come to reap the benefit thereof by satisfying his Recovery though it is ordinarily done in England for no Inquisition upon an Outlary was ever retorned to our Welch Exchequer which is an Office belonging to the Sessions for making of Original Writs there and how it may be transmitted or Cognizance taken of them at the Exchequer above forth I leave them to signifie that have reason to be more knowing then my self therein for there was no such proceedings in all my time and never before for ought I heard There are also in Actions of Dower and on other real Actions a Habere facias seisinam as an Execution to be taken out to obtain possession of the Lands recovered and in it sometimes a Writ to enquire of Damage as in Dower which is recovered by default or where it appeared not what the Damages were and a Capias or Fieri fac for the Costs wherein Costs lyes which Writ when executed is to be retorned and filed and in Ejectione firmae an Habere facias possessionem is the Execution for to put into possession with a Cap. or Fieri fac as is aforesaid included or by it self for the Costs and Damages which likewise are to be retorned and filed after they are executed If Execution be not taken out till a year be expired since the last Execution upon any Judgement was sued forth then the Plaintiff should have no Execution though Prothonotories use to do it by continuing the Cause before he takes out a Scire fac to the Sheriff to sum non the party Defendant to shew cause wherefore the Plaintiff should not have Execution and if the Sheriff retorns thereupon a Scire feci as there is a Rule given by the Court to shew cause c. but in some Courts there be two or in some three Rules to appear and the like to plead which in Summe seems to be too favourable to the Defendant and in great delay to the Plaintiff which may tend to his prejudice but in default of appearing and pleading something to it Judgement is entred which is Quod fiat Executio and then Execution awarded the Defendant may plead thereunto what the Law admits and as his Case stands Nul tiel record and several other things But some hold that that Plea holds not in the same Court where the Judgement was obtained others I found of opinion it would but when it is admitted as soon as the Record of the Judgement is produced and read there is an end of it and Execution is presently awarded if the Sheriff retorn upon the Fieri facias Nihil habet per quod c. the party Plaintiff must take out another Scire fac and if the Sheriff retorns the same Retorn on that then those two Nichils amount to a Scire feci and the party shall have Execution as if a Scire feci had been at first retorned in case the Defendant appears not or afterwards plead not There be several Causes wherein a Scire fac is requisite after Judgement before Execution be made or taken out as if the Plaintiff or Defendant died after Judgement there must be a Scire fac for the Plaintiffs Executor or Administrator of the Defendant if the
ij s. Res inde ij s. Narr vers Vouch. ij s. Li lo. j s. Jud. vers tenant ij s. vj d. Jud. vers Vonch ij s. vj d. Hab. fac seisinam ij s. vj d. Entry Return ij s. Exemplific vj s. viij d. j l. v s. ij d. li With double Voucher Narr vers tent ij s. Res inde ij s. Narr vers vouch ij s. Res inde ij s. Narr vers 2. vouch ij s. Res inde ij s. Li. lo. 1 s. Sum. ad Warr. ij s. Jud. vers tent ij s. 6 d. Jud. vers vouch ij s. 6 d. Jud. vers 2. vouch ij s. 6 d. Habere fa. seisinam ij s. 6 d. Entry retorn ij s. 6 d. Exemplification 6 s. 8 d. 1 l. 14 s. 2 d. For receiving and recording every Fine vj s. The Goal Fees For every Prisoner that appears upon Bail for recording of appearance ij s. For every Commitment per Court ij s. For every non Cul. pleaded ij s. For every Acquittance by Procl or otherwise i s. v d. For every Bail over ij s. For every Writ De Pace ij s. De bono gestu ij s. Hab. corp prisonarii ij s. Deliberes co prisonarii ij s. Restitution ij s. Scire fac ij s. Excommunicat cap. ij s. Excommun deliband and other speciall Writs ij s. For recording every Mittimus and Signific iiij s. For certifying every Record for every sheet viij d. Every Attachment xij d. For enrowling every Pardon according to the length xx d. a sheet xx d. For certifying of every Recognizance ij s. For every Travers to an Indictment ij s. For every Recognizance to prosecute in Travers ij s. For every Ve. fa. thereupon xiiij d. q. For every Hab. cor or distr xx d q. For every Non cul thereupon by Jury ij s. For every person indicted upon Trespass that submits himself â—o the Fine upon the Ve. fa. i s. vi d. Upon the Cap. ij s. vi d. Upon the Al. Cap. iij s. v d. Upon the Plur. Cap. iij s. v d. Upon the Exigent vi s. v d. Other Fees there are which experience will best inform Fees upon a Writ of Error For certifying the Record 1 l. Prothonotory for entring upon Record vi s. viii d. Copia Record xiij s. iiij d. Consil x s. Pro quolibet Error ij s. a piece Feod Attorney ij s. 2. 14. 0. Sessio secunda Councel x s. Writ of Restitution iij s. vij d. Continuance 1 s. Feod Attorn ij s. 16 s. 7 d. Kings Silver post fines xl s. pay vi s. viij d. iij l. x s. iiij l. xv s. v marks xiij s. iv d. v l. xx s. For filing a Writ of Habere facias possessionem vi s. viij d. Quinto die Aprilis Anno Regni Domini Jacobi Dei gratia Angliae Scotiae Franciae Hiberniae Regis Fidei Defensor c. Angliae Franciae Hiberniae sexto Scotiae quadragessimo primo A Rate of all and every the Fees and Duties to be received by the Prothonotary and Clerk of the Crown of the Counties of Denbigh and Mountgomery and his Clerks as belonging to his said place and Office assessed rated and appointed according to the Statute in that behalf made and provided 1. FOr every Queritur 4 d. 2. For every Writ upon a Queritur under 40 s. 4. d. 3. For every Writ upon a Queriâ—â—r and second Writ for 40 s. and â—â—ove 6 d. 4. For every Writ upon a Queriâ—â—r in Actions upon the Case 12. d. 5. For every second or third Writ in plea of Land Ejectione firme Trespass on the Case and such like 12 d. 6. For every Writ of View Sum. ad Warran Sum. ad anxiliand are such like 12 d. 7. For every Venire facias under 40 s. 12 d. 8. For every Venire facias for 40 s and above 14 d. 9. For every Venire facias in pleâ— of Land Ejectione firme Trespass oâ— the Case Appeals and the like 2 s. 4â— 10. For every Hab. corpora Distringas Alias distringas under 40 s with a Tales 1 s. 4 d. 11. For every like in plea oâ— Land Ejectione firme Trespass on the Case Appeals and such like 2. s. 8 d 12. For every Petty Cape and Grand Cape 2 s. 13. For every Tales de Circumstaâ—tibus 2 s. 14. For entring every Challenge 2 s. 15. For joyning every Issue tâ— the Challenge 2 s. 16. For entring every not Suit 2 s. 17. For entring every Verdict in Debt 1 s. 18. For entring every Judgement in Debt 1 s. 19. For every the like Entrees under 40 s. 6 d. 20. For every the like Entrees in plea of Land Ejectione firme Appleals Trespass on the Case and such like 2. s. 21. For Adjournment of a Jury after appearance 2. s. 22. For every Execution under 40 s. 4 d. 23. For every Execution of 40 s. and above 6 d. 24. For every Writ of Seisin 2 s. 25. For entring of Seisin 6 s. 8. d. 26. For every Elegit 2 s. 27. For every Sc. fac Excommuniâ—ato Capiend Exigent Capias Vtlegat Writs for certifying of Matrimony or Bastardy Supersedeas Writs of Restitution Procedendoes and such like for every of these 2 s. 28. For entring every Declaration under 40 s. 4 d. 29. For the like of 40 s. and above Trespass Detinue and the like 8 d. 30. For entring every Declaration in plea of Land Ejections firme Trespass on the Case and Appeals and such like not exceeding two sheets 2 s. 31. For entring every Plea under 40 s. 4 d. 32. For entring every Plea for 40 s. and above not exceeding two sheets of Paper 1 s. 33. For entring every such like Plea in plea of Land Ejectione firme and Trespass on the Case and such like 2 s. 34. For entring filing and enrolling in parchment of all Writs Declarations Answers and every other Plea if the Copy thereof be above two sheets of paper as Copies are usually written in his Majesties Court of Common Pleas or Kings Bench then for such sheet of paper 12 d. and after that rate 1 s. 35. For entring the Tenants demand of View ij s. 36. For every Habear corpora Dlstringas and alias Distringas for 40 s. and above with a Tales i s. viij d. 37. For joyning every Issue in Debt under 40 s. iv d. 38. For joyning every Issue in plea of Debt of 40 s. and above Trespass Detinue and such like i s. 39. For joyning every Issue in plea of Land Ejectione firme Trespass on the Case Appeals and such like ij s. 40. For every Scriptum de Dom. ij s. iv d. 41. For entring every Warrant of Attorney iv d. 42. For entring every Essoin iv d. 43. For entring every Adjournment unto an Essoin ij d. 44. For every Rule iv d. 45. For search for every Sessions iv d. 46. For every continuance before Issue joyned iv d. 47. For every continuance in Debt after Issue joyned for entring the same upon the plea