Of the originall of Shires, Shiriffs, and the institution of this Court.

BEfore I anotomise the practise of this Court, I thought it conve­n [...]ent to produce it from its originall or prototype, quia origô rerum attendenda. And first, what the word Shire signifies.

Shire, is a Saxon word seyra, and cometh of shiran (id est) partiri [Page 2] to divide, as sayth Master Lambert in his explication of Saxon words, verb. centur. And Master Cambden in his Britania reporteth, that Al­fred (a Saxon) King of England, was the first that divided this Common­wealth into Shires, those Shires in­to Ridings, and those again into Wapentacks or Hundreds, &c.

The Republique being thus dis­united or dissected into Shires, every Shire is entirely governed by one Of­ficer called a Sheriff, or Shireeve, Vice-comes; being compounded of these two Saxon words, scyr, viz. Satrapia, a Shire, & reue, viz. Prae­fectus a Governour of the Shire. Ma­ster Cambden thus describes his Of­fice: Singulis vero annis, nobilis a­liquis ex incolis proficitur, quem vi­ce-comitem quasi vicarium comitis & nostra lingua Shireffe, viz. co­mitatus praepositum vocamus.

Vicount unde.And he is called Vicount, a Vice-comite, which cometh from our Con­querours the Normans, as Sheriff from our Ancestors the Saxons.

The aforesaid King, at the division [Page 3] of the Kingdom into Shires or Coun­ties,County Court when in­stituted. instituted this Court called the County Court, and established Ju­risdiction in it;Lambert. granting power and authority to the Sheriff to hear and decide such matters as by just cause of appelation (either for Law or E­quity) should be brought unto him. This Court of the whole Shire (then called Scirezmove, that is to say, the assembly of the Shire, was then (as also now) holden once every month, upon a day certain, the month be­ing computed according to 28. dayes in the month, and not according to the Calendar. Of its antiquitie and jurisdiction, you may read more re­corded in the Statute of Magna Charta. cap. 35. Likewise, it may be searched further in the Laws of Ed­gar, the Saxon King,Lam. arch. viz. Let no man seek to the King in matter of variance, unless he cannot find right at home: But if it be too heavy for him, then let him seek to the King to have it lightned. The very like whereof in effect is to be seen in the Laws of Canutus the Dane, sometimes [Page 4] King of this Realm; out of which Laws may be gathered four things: First, that every man had means, and was authorized to sue in this Court, in their own Shire or County; that no man ought to sue out of the Coun­ty, or to draw his Plea from thence without good cause: both which things do plainly appear in the Let­ter of this Law. Thirdly, that the King himself had a high Court of Justice, wherein it seemeth that he sate in person: as these words do demonstrate, Let him not seek to the King, &c. And lastly, that the same Court of the Kings did judge, not onely according to meer right, and Law, but also after equitie and good conscience. And after this order, and in these two Courts, was all Justice administred. This Court continuing (untill the time of William the Con­queror, and ever since during the times and raigns of the antient Kings) and doth yet continue (in manner) the same forme, and substance that it then was, (and will do in despite of those sycophants, that have had [Page 5] their primum mobile from it, and now endeavour its subversion, that vipo­rous brood of Birds, that have so much defiled their own Nest, that the whole Country laughs at their folly, and that the Pleas ought no more to be taken from it, now in our dayes (without cause) than they ought then to have been; which may evidently be proved by those antient Writs of Pone, Recordare, Writ of false judgement, & accedeas ad curiam, which are yet in use to this day, and to this onely end to remove suits (upon cause) out of this Court into Superior Courts. But be­cause this requireth great search of Records to make any further progres­sion (whereunto I have no access) I must leave it to such whose abi­lities are more able, and can better travail in that so intricate a path.

This Court is no Court of Record,This Court no Court of Record. but onely a Court Baron, therefore Pleas holden in this Court by Plaint, nor Pleas holden by Writ of Justices, are not taken as matters of Record, for those Pleas are holden by rea­son [Page 6] of the Court, which the Sheriff holdeth by reason of his Office.

Why in­stituted.This Court (as Dalton reporteth in his Office of Sheriffs) was ordai­ned for the Sheriff to hold Plea, there for particular or private matters (un­der fortie shillings) between partie and partie.

Coo. inst. 3. par. cap. 5 5.It holdeth no Plea of Debt or damages to the value of fortie shil­lings or above, because a Fine is due thereby to the Lord Protector, yet if the Debt be fortie shillings or a­bove, and the Plaintiff will acknow­ledge in his Declaration the receipt of so much, as to bring it within fortie shillings, in this Case the Plaint is good.

And of Debt, Detinue, Trespass, and other Actions personall above fort shillings, the Sheriff may hold Plea by force of a Writ of Justices to him directed, for that is in nature of a Commission to him, and is not re­turnable. Neither doth this Writ al­ter the nature of the Court, for there­in the Sheriff is not Judge,Suitors Judges. but the Suitors, yet all judgements shall be [Page 7] pronounced by the Sheriff.

This Court may be kept at any place within the County, at the pleasure of the Sheriff, but not out of it.

To this Court, all persons dwelling within the County, owe suit by rea­son of their resiance.

No fine can be imposed in this Court upon any offender,No Fine. because it is no Court of Record.

But a man may be amerced for a contempt,Amerce­ment. or a disturbance of the Court, in the presence of the Court.

This Court will entertain no Suits for Charters of Land,What acti­ons w [...]ll not ly in this Court. or for inheri­tance, or for Free-hold of Land, or for any titles to Land, or to make seve­ral plaints upon one entire debt by bond, or trespass, vi & armis, or a­ctions touching life, nor actions to cause one to render an account.

The Office of the Coun­ty Clarke.

THe Sheriff being elected (before the next County day after his e­lection) [Page 8] he ought to be very dili­gent in deputing and constituting a County Clark, such a one as is suffi­cient and able to keep the Court, that no corrupt dealing be in it, as he will answer the contrary: and that he be very skilfull in entring the proceedings in it.

He ought to enter no plaints (ex­cept in case of Replevins) out of Court, but in full County, sedente curiâ, yet the course is otherwise at this day, and (as it seems) good e­nough, verifying the diverb, commu­nis error facit jus.

He cannot execute the Office of a County Clarke, and practice as an Atturney both at one time, it being prohibited by the Statute of. 1 H. 5.4. He cannot act any thing without the assent of the Suitors; if he do, an acti­on of trespass lyeth against the She­riff.

He must be carefull in deputing honest able and sufficient men, as Bayliffs, for the executing of the Pre­cepts issuing ou [...] of the Court.

He must make sufficient Precepts [Page 9] after the plaints entred (but not be­fore) against the Defendants, di­rected to his Bayliffs, to attach or warn the Defendants to appear at the next County Court, and answer the Plantiff; and if there be any de­fault in the said Bayliffs in the execu­tion of their Office according to the tenor of their Precept, then they are to forfeit 40 shillings, and to be con­victed thereof by the examinations of the Justices of Peace, or any of them.

The County Clarke and Plantiff, upon complaint of the party grieved, may be examined by one Justice of Peace, concerning the taking or en­tring of plaints in the County Court, and booke against the Statute: If thereby the Justice find any fault or offence committed, that shall stand for a sufficient conviction and attain­der without any further inquirie or examination. And the said justice must certifie the examination within a quarter of a year into the Exche­quer, by the Statute of 11. H. 7. cap. 15.

At the adjourning of every Court [Page 10] he must appoint a day certain for the next Court, to the intent the Coun­trey may know at what time they may resort thither to hear the Lord-Protectors writs of Exigent and Pro­clamations read.

The Office of a Coroner in this Court.

A Coroner is one of the Principall Officers of this Court, being cho­sen in it (by a writ de Coronatore elegendo, directed to the Sheriff) by the Free-holders or Suitors in open and full Court, and is published there, and after the Sheriff is to return and certifie into the Chancery the electi­on of every such Coroner and their names; likewise the County Clarke must there administer to the Coro­ner his oath for the due execution of his Office.

The Coroner being thus chosen and sworn, he is to sit there with the Sheriff at every County Court to give judgment upon Outlawries, which judgment shall be given and pro­nounced [Page 11] by him in the 5^th County, and there the Sheriff is to return the Outlawrie with the Exigent: But by this judgment no Goods are for [...]d before the Outlawrie appear of Re­cord: neither shall such an Outlaw­rie disable the partie.

Exigents and Proclamations are to be proclaimed 5. County dayes one after another,Exigent & Proclam. to be proclai­med 5. County dayes, &c. and once in the open Sessions, and once at the Parish-Church-dore, where he doth or did lately dwell, that he appear, or else that he shall be Outlawed. And if Proclamation be made 5. County dayes, and at the 5^th County day the Defendant appear not, then the Co­roner shall give judgment that he shall be out of the protection of the Lord Protector, and out of the ayde of the Law. F.N.B. 163. But before I conclude this Chapter, let me give you in brief, why a man is said to be Outlawed, and a woman wained; viz. A man is said to be Outlawed,F.N.B. fo. 395. because he was sworn to the Law: and now for his contumacy he is put from the Law, and said Outlawed, [Page 12] as it were, extra legem possitus; but a woman is not so, but she is wained, and not Outlawed, because she was never sworn to the Law.

If a writ of discharge of the anci­ent Sheriff be delivered to the Coun­ty Clarke, sitting in the County Court, the authority of the said She­riff (although absent) shall present­ly cease.

Of Atturneys in this Court.

IT was objected to me, that no At­turney could legally practice in this Court, and that every man ought to prosecute his own cause himself: but I shall give him a compendious answer with an Epitomy of the Statute of West. 2. cap. 10. that every man which oweth Suit to the County Court, may make a generall Atturney to prose­cute and follow his Suits in all Pleas: and an Atturney may do every thing in the name, and as the act of him which gave him the authority, as if he did it himself: qui per alium facit per seipsum faecere videtur: likewise [Page 13] these Statutes following institute Atturneys in the County Court, viz. 6. E. 1. cap. 8.20. H. 3. cap. 10. F.N.B. 156. I could instance many more, but I hope this is sufficient to stop the black mouth of a scurrilous anta­gonist.

What Actions may be brought in this Court.

Having precipated my self thus far, before I enter upon the procee­dings of the Court; I will demon­strate the grounds and cause of pro­ceedings, and that is, actions, which is the form of a Suit, given by Law to recover a mans right: therefore what actions will hold in this Court, take as follow.

All actions of Debt, either upon an account made by the parties for wages after a hire, summs of money owing or due from one man to ano­ther, whether by writings or other­wise, it is grounded sometimes by writing, as an obligation, bill, cove­nant, or other especialitie: sometimes [Page 14] without writing as an arbitrament, receit money lent, parol, contracts or the like.

All actions of detinue, Trover, and Conversion, deceit upon a warranty, a delivery, nusance, case for scandalous words, case upon Assumpsit [...], and other actions of the case, as for a dog killing Cattle, abusing a distress, spoyling my goods, &c. Actions of trespass, assault and battery, &c.

All these actions would afford ve­ry much matter to treat of at large, (but least it should swell beyond its limits) I will referr you to the rea­ding of the Law (in one Volume) learn'dly epitomiz'd by Mr. Shepheard.

Within what time Actions must be brought.

31. Eliz. cap. 5.ALL Actions of Debt grounded up­on any lending or contract, as book-debt, without especialty, and for rents in arrear: all actions of trespass, quare clausum fregit, actions of Trespass, Trover, Detinue, and Re­plevin [Page 15] for taking away Goods and Chattells, actions of account, all actions of the case (except acti­ons for slander, which shall be sued, must be commenced and brought within six years after the cause of such action or suit acrewed, if the Plantiffe be then of full age, disco­vert, Compos mentis, at Libertie, out of prison and in England; otherwise within such time after he becomes so, and not after.

All actions of Trespass, for Assault, Menace, Battery, wounding and im­prisonment, within four years after the cause of action, and not after.

All actions of the Case for words, within two years next after the words spoken, and not after.

Who may bring actions, and who not.

IDiots, mad men,S. Mar. ca. 6. fo. 3. or such as have lucida intervalla, such as are deaf and dumb, or any other man, woman or child (except persons disabled by Law) being wronged, nay bring the proper action appointed for remedy [Page 16] in that case; and all, or any of these wronging others may be sued. And if an Idiot sue or be sued, he must do it in person.

An Infant must sue by Proahein amy, and being sued, must defend by Guardian.

A Feme Covert cannot sue but with her Husband.

An Outlawed person is disabled to sue any action against any man in any Court of Law or Equitie, (yet as Executor he may sue, beeause it is not in his own right, but in trust for another) but any man may sue him, by Coo. sup. Lit. 128. A man that is attainted in a Premunire, may not sue in any action, idem. 129. And a man that is a convict Reculant is dis­abled, so long as he so continues.

But note, all these disabilities re­main during the continuation of the same impediment.

No Barretor can maintain any a­ction in this Court, nor have judge­ment, unless it be required by all the Suitors. Westm. 1 Cap. 3.

Of Pledges in this Court.

PLedges are obsolete, except it be for such as live out of the County, or out of the Jurisdiction of the Court, or such as are unmarried, that have no Goods distrainable, and it is if these be Plantiffs: and if the Defen­dant should Non-suit the Plantiff, and have judgment against the Plan­tiff and his Pledge. I never yet saw the form of that judiciall precept, that ever issued out to levie the costs upon the pledges goods.

Of the proceedings in the Court.

BEcause I would not have the Country and young practisers ignorant of the proceedings in the Court, which is the life of practice; I thought it necessary to make an a­bridgment of the terms of Law, now used in the proceedings. And first of Appearance, because it is the first thing done after Goods attached.

The first thing the Defendant in any Action or Suit is to do,Appea­rance. is to ap­pear, and shew himself in person, or by an Atturney in the Court to an­swer the Action and defend the Suit.

[Page 18] Essoyne.He may also appear by an Essoyne which doth delay the cause a Court day longer; (The common Essoyne is de male vener) and if he do not appear the next Court, then it passeth by default, Judgement entred, and Execution issues out against his Goods and Chattels. But after the Defen­dant hath once appeared in the Court by an Atturney, there shall be no Essoyn allowed.

Duces te­cum.But if he appear neither by an Attur­ney, nor by essoyn, then further pro­cess issues out against his Goods and Chattels, viz. the Precept of Duc. Tec.) and Attachment, and Distress upon Attachment infinite, untill he do appear.

Declarati­on.After the Process executed, the Plantiff is to appear and file his De­claration, to shew his cause of Action, or matter of complaint, in which must be shewn who complaineth, and against whom, for what matter, how, and in what manner the action grew between the parties, and at what time and place the wrong was done; and in conclusion he must averr and [Page 19] proffer to prove his Suit,Modo & forma. and shew the damage he hath sustained by wrong done unto him. Speciall care ought to be had that it be drawn in manner and form, yet by the Statute of 36. E. 3. cap. 15. a Declaration shall be good, if it have matter of substance, though the terms be not apt; how­ever to avoyd doubts, and that the Atturneys may not altogether depend upon uncertainties, let them be dili­gent in taking right and due instru­ctions from their Clyents, and inform themselves of every punctilio which may be materially incident to the case, that so they may know what manner of action is most proper to be brought on the behalf of their Clyents.Nota.

In some cases manner and form is chiefly to be looked at, but in other some not altogether so materiall. As if an action of Debt be brought of the sale of a horse for 5 ^l.21. E. 4. fo. 12. (where the bargain was for two horses) the De­fendant pleads that he oweth him nothing in manner and form: the Jury ought to find for the Defendant,Modo & forma. for that, that the bargain was for two [Page 20] horses for 5 ^l. so manner and form there is materiall, and parcell of their charge,Modo & forma. and so it is in every case, where the action varies from the bar­gain or speciall matter.

But if an action of the Case be brought by the husband alone, upon an Assumpsit to him by R. the Defen­dant saith,27. H. 8. fo. 29. he did not assume in man­ner and forme, and the Plaintiff gives in evidence of an Assumpsit made to his wife, and his agreement to it af­terwards, this is good, and manner, and form is not materiall.

Or if a Trespass were done the 4^th. day of May, and the Plaintiff decla­reth the same to be done the 5^th. or the 1. day of May, when no trespass was committed, yet if upon Evidence it falleth out that the trespass was done before the action brought, it sufficeth, 19. H. 6.47. 5. E. 4.5. 21. E. 4 66. And Litt, saith, that the Jury may find the Defendant guilty at another day then the Plan­tiff supposeth, for the Law of Eng­land respecteth more the effect and substance of the matter, than every [Page 21] nicitie of form and circumstance: apices juris non sunt jura.

Note that in actions of Debt upon Emisset for wares, for money or other things lent, upon an in simul compu­tassent, actions of Trespass, Battery, or upon the Case, &c. you are not tyed to lay the certain day; but you may lay it any time after the cause of action accrewed.

A declaraton is sometimes called a Count,Count. as Count in Debt. Kitch. 281. Count in trespass, Brit. cap. 26. Count in an action of trespass upon the case for a slander, Kitch. 251. But a Count it is more properly used in Reall than Personall actions: And a Declaration more applyed to Per­sonall than Reall. F. N. B. 18. a. 60. D. N. 71. a. 191.6. 217. a.

If after Process executed the Plaintiff do not appear and file his Declaration,Non-snit. and the Defendant do appear upon such default, the Plan­tiff is nonsuited, and the Defendant may enter Judgment, and have an Execution for his costs.

In every case where the Plaintiff [Page 22] may have costs against the Defen­dant there, if the Plaintiff be nonsuit, or a verdict pass against him, the De­fendant shall have his costs, as in trespass, debt, covenant by specialty, or upon contract, detinue, accounts, actions upon the Case, or upon the Statute for personall wrongs, 23. H. 8. cap. 15.

Emparlanc.After the Plaintiff hath appeared and Declaration filed, upon the ap­pearance of the Defendant, Empar­lance is to be entred: Emparlance is, when the Defendant, being to answer the Suit or Action of the Plaintiff, desireth some time of respite to advise himselfe the better what he shall an­swer, being nothing else but a conti­nuance of a Cause till a further day.

Continu­ance.I had forgot to lay open unto you this word Continuance, had not the foregoing piece put me in minde of it, and it is this; After a Suit is be­gun and the Plaintiff hath declared, he must continue his suit from Court day to Court day, or else the adverse party may take advantage of it, and this is called a Continuance, being [Page 23] but only a prorogueing of a suit from time to time, to keep it in being; And this is by the Act, or Order of the Court, and sometimes by the agree­ment of the Atturneys of both parties.

This Rule,Rule. or dies datus is when further day is given to the Plantiff to put in his Declaration, or to the De­fendant, to put in his answer: the time given is usually 14. dayes, or more of lesse according to the order of the Court,Answer. and the agreement of their Atturneys.

The next Court after the filing of the Declaration, the Defendant is to put in his Answer, which he pleadeth and saith in Barr, to avoid the Acti­on of the Plaintiff, either by confessi­on and avoidage,Replicati­on. or denying the ma­teriall parts thereof.

If issue be not joyned upon the answer, then the Plantiff is to file his Replication to the answer of the Defendant, which must affirm and pursue his Declaration.

Then the Defendant must put in his Rejoynder to the Plaintiffes Re­plication,Rejoynder. which must pursue and confirm his answer; for every Re­plication [Page 24] ought to have these two properties specially, that is, it ought to be a sufficient answer to the Re­plication, and also to follow and en­force the matter of the bar.

Surrejoyn­der.If the parties be not at issue by rea­son of some new matter disclosed in the Defendants Rejoynder that re­quireth answer; then may the Plan­tiff Surrejoyn to the said Rejoynder, if there be cause, but it falleth out very seldome. This Surrejoynder is a se­cond defence of the Plantiffes Decla­ration opposite to the Defendants re­joynder.

Nota.When the Declaration, Answer, Replication &c. are defective in respect of some circumstance of time or place &c. it may be remedied by consent of the Court, or parties, or by a motion to the steward.

Not infor­med. Non sum informatus, is a formall answer of course made by an Attur­ny, whereby he is deemed to leave his Clyent undefended, and Judgment passeth for the adverse partie.

Nil dicit.It is a failing to put in an answer to the Declaration of the Plantiff, (in [Page 25] any action) by the day assigned, which if a man do, Judgment shall pass against him, because he saith no­thing to the contrary.

To a Contract without Deed,Pleas spe­cialy to be pleaded. the Plea is payment, or an Obligation made for the Debt, &c. To an Ob­ligation, the Plea is payment,Obligati­on. or a new Obligation taken for the Debt, &c. But to plead payment to an Obligation is no Plea without an acquittance: For an Obligation, or other matter in writing may not be [Page 26] discharged by an agreement by word but by writing: unumquodque disso­luitur, eo modo quo colligatur.

Debt.To an action of Debt he owes no­thing by the Country, or by the Law, or paid.

Against Executors or Admi­nistrators.If the action be brought against an Executor or Administrator, the or­dinary Plea is, that he never was Executor, or hath fully Administred &c.

Non ag [...].If the suit be upon a Deed, or con­tract without Deed, that he was within age when he made the Deed or contract.

Woman covert.If it be against a woman, that she was covert: that is to say, had a husband when she made the Deed or contract.

Arbitra­ment.If upon an Arbitrament, that there was no Arbitrament legally made, or that he hath performed the award.

Trespass damage feasant.If upon an action of Trespass, Damage Feasant, that the beasts came in by the default of the inclo­sure of the Plantiff, or that he hath little of common there &c.

Rent.If upon an action brought for [Page 27] Rent, that there is no Rent in arrear, &c.

To an action of Detinue,Detinue. that he doth not detain the thing sued for: A release, or a gift to him by the Plan­tiff, or that he did tender the thing sued for before action brought, that the Defendant did deliver it to him as pledge for ten shillings, which he hath not paid, &c.

To an action of the Case for Slan­der: not guilty, or justifie the words.Slander.

Case upon a warranty,Warantie. that he did not warrant, &c.

Upon a specialty,Debt. Plead, conditi­ons performed, by Threats, Duress, Imprisonment.

Upon a Demise, not demised.Warantie.

Upon an Account, as receiver,Account. never receiver: he ought not to render an Account, &c.

To trespass, not guilty,Trespass. an Arbi­trament, tender of amends before the Action brought, &c.

If divers men do a trespass,Nota. and one makes a good accord, this will discharge, and be a bar to all the rest. Cook. 9.79.

[Page 28] Free-hold.If Free-hold be pleaded, the Court in that cause can proceed no further. There are diverse p'eas to an action of trespass, some of one nature, and some of another, as justification &c. If the Defendant have matter of justification or excuse to plead, he must be sure to plead it specially, for if he plead the generall issue, viz. not guilty, it will be found against him; But now by the late Act, made the 23. of Octob. 1650. the Defendant may plead the generall issue of not guilty, or such like generall plea, and give the speci­all matter in Evidence.

Nota. Et hoc pa­ratus est verificare.Every plea must be offered to be proved true, by saying in the plea; And this is he ready to verifie, and this is termed an averment.

Et de hoc ponit se [...]u­per partiam.If tender of issue come on the Defendants part, the form is, And of this he putteth himself upon the Country.

Et hoc pe­tit, quod inquiratur per patriamIf on the part of the Plantiff it is And this he prayeth may be inquired of by the Countrey.

If issue be taken upon these Pleas, and a Jury thereupon warned to ap­pear [Page 29] to try them, the Jury appearing, the parties may have their Chalenges.

Chalenge of Jurors.

CHalenge is said to be where there is evident favour, as kindred,21. E. 4 fo. 11. & 63.20. Ass. 11. 2. H. 4. f. 16. 4. E. 4. f. 1. 2. H. 4. f. 14. 13. H. 4. f. 14.22. E. 2. Charl. 177.8. E. 3. f. 69. 3. H. 6. fo. 24. 9. E. 4. fo. 49. Britton fo. 134. 11. H. 4. fo. 40. 33. H. 6. fo. 55. 18. H. 8. f. 2. 8. H. 6. f. 60. &c. the Juror of Aliance servant beares malice, and hath some Action against chalenger; Juror a gossipe of the Plantiff; Juror master to the Plantiff: the Juror eate at the Plantiffes cost, or take money for his charges. If the Juror was chosen arbitrator for one party, but otherwise where he was chosen indifferent for them; The Sheriff or Bayliff which make the pannell, is of the Plant [...]ffes kindred: those who have been attaint of false Oath. or were seen on the Pillory, or against whom there was Judgement of life or member; Those who pre­tend to have some right in the thing demanded: the Juror Outlawed, if the Record be shown: Juror attaint of conspiracy: the Sheriff being Plan­tiff, &c.

Having now brought the Jury to [Page 30] the Bar, and that they prove all ho­nest men, being sworn let them stand to the Bar, and hear their Evidence.

Nota.If a full Jury do not appear, as many as make default, may be amer­ced: If the verdict find matter incer­tainly, or ambiguously, it is insuffici­ent, and no Judgement ought to be given thereupon: as if an Executor plead plene Administravit, viz. fully Administred of all the Goods and Chat [...]els 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 there insufficient.

17. E. 3.47. 18. E. 3.48. 22. E. 3.2. 18. E. 3.56. 15. E. 3. judg. 58. &c. Hil. 25. Eliz Mic. 28. & 29. Eliz. inter Gomersall & Gomer­sall &c.A Verdict that findeth part of the issue, and finding 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 Judge­ment [...] for utile per inutile non vitiatur, [Page 31] but necessary incidents required by the Law, the Jury may find.

The manner of keeping the Court.

THe Sheriff at the first County Court, which shall be after his election and discharge of the old Sheriff, must read his patent and writ of assistance, and nominate his under-Sheriff▪ the County Clarke, and 4. Deputies (at the least) of Replevins for the ease of the County

Then enter the stile of the Court, in this manner, viz.

Y. ss. The stile of the Court. The first County Court of I. B. Esq Sheriff of the County aforesaid, held at the Castle of Y. on Munday Court. the 7 ^th. day of July, 1656.

Then command the Bayliff to make Proclamation 3. times O. yes &c. Procl.

All manner of Persons that have any thing to do at the County Court holden here this day, before I. B. Esq Sheriff of the County of Y. come forth and give your attendance.Procl.

Command the Bayliff to make [Page 32] Proclamation again, O yes, &c.

All manner of Persons keep silent, and heare the Lord Protectors writs of Exigent and Proclamation read.

A Coroner is to be there then present, to pronounce Judgement of Outlawrie, against those that do not appear upon the Exigent and Procla­mation at the 5 ^th. County.

Procl.Command the Bayliff the 3 ^d. time to make an O yes &c.

Essoyns and proffers (before the Court 3. times) for this day. And then say; If any man will be essoyn­ed, or enter any Plaints, let them come forth, and they shall be heard.

Plaint.Then enter your plaint in this manner.

A. B. against C. D. of a plea of Debt.

Then call the Plantiff thus,

A. B. app [...]ar, or thou loseth thy plaint; 3. times.

If he appear by an Atturney, then enter his warrant of Atturney, viz. the 2. first letters of his name, over the name of the Plantiff, and then file his Declaration.Decl.

[Page 33]Then call the Defendant.

C. D. appear and answer A. B. in an action of Debt, (or as the case is) or thou forfeits thy Goods distrain'd, and further process will be awarded against thee. If he appear, then enter his appearance, and an Imparlance, to put in his answer (to the Plantiffes Declaration) the next Court.

When the Defendant hath put in his answer, If the Plantiff joyne issue,Answer. they may proceed to try all the next Court day (except they proceed further by Replication, Rejoynder, &c.)

If it be at issue,Ve. fa. send out a venire facias, to summon the Jury, and the Habeas Corp.

Then enter on the head of the pannell thus.

Jury betwixt A. B. Plantiff and C. D. Defendant, in a Plea of Debt.

When they are brought to the Barre, command the Bayliff to make Proclamation &c.

You good men that be impannel'd to try the issue between A. B. Plantiff, and C. D. Defendant, answer to [Page 34] your names, every man upon the first call, upon pain and perill that shall fall thereon.

If 12. appear, then swear them one by one, in this manner.

Oath.You shall well and truely try this issue, between partie and partie, ac­cording to your Evidence, so help you God.

And as they are sworn, enter by every mans name Jur. that is to say juratus est, he is sworn.

Being all sworn bid them stand together to hear their Evidence.

Then swear the Witness [...]s.

Oath.The Evidence that you shall give to this Inquest, 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 ask them if they be all a­greed on their Verdict:

Who shall say for you?

The Foreman.

Yea.

Whether do you finde for the Plantiff, or for the Defendant?

For the Plantiff.

What damages?

What costs of Suit?

Hearken to your Verdict, this you say, you finde for the Plantiff, and assesse, damages, 2 ^d. and costs of Suit 2 ^d. so say you all?

Yea.

Then bid the Plantiff pay the Jury.

The Court being ended, adjourn the Court to another day to be kept, commanding the Bayliff to make Proclamation, O yes, &c.

All manner of Persons,Adjornment. which have any more to do at this Court, let them come forth, and they shall be heard, otherwise they and every one else, may depart for this time, and keep their hour here on Munday [Page 36] the 4 ^th. day of August next by 9. 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 levie of his Goods, and thereupon the Defendants Goods shall be ta­ken, praised and sold, to satisfie the partie Plantiff, and if the Defendant have no Goods, whereupon levie may be made, then the Plantiff rests without remedie in this Court.

Of Distress.

COnsidering the many lacrymable wrongs the Country hath sustai­ned by these Locusts, that litigious generation of men, a clamorous company, qui ex injuria vivunt, se­minaries of discord, worse than any poler by the high way side, monstra hominum, rabulas forenses, irreligious harpies, scraping griping Catchpoles, monopolizing Bayliffs and corrupt Practisers, and how much the igno­rant people are abused and deceived, [Page 37] yea, many times (as the 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. Re­ally, the advantage that it would produce to the Common-wealth is inexplainable, if the Statute of the 1. H. 5. cap. 4. were observed, that is, that Sheriffs, Bayliffs, one year, not to be in that Office in 3. years after, because by their continuall being in that Office, they grow so cunning, that they are able to deceive the Sheriff, and ruine the whole Country; Therefore, that the Country be not 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 let you know what a distress is.

A distress is either said to be reall (that is) when Land distrained up­on a Grande cape, or a petit cape▪ of which we have nothing to say here: or it is said to be personall, where moveable things are distrained: and [Page 38] this is that we are to speak unto,Broo. 146. Fieches & ley 135. Coo. sup. Litt. 97. therefore a distress is where one doth take & distrain the beasts cattle and other things of another man in some ground or place for Debt, Rent, or other dutie 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 process, or to do any ministeriall act: for the Law giveth no colour to break a mans house by night.

No distress 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 2. others) to appear such a day, in such a Court, and at such a mans Suit, &c. it is good enough; and if an Attachment be made, it must be of such Goods (of the Defendants own proper Goods) as are movea­bles, viz. by meere Chattels Per­sonalls, [Page 39] which may be forfeited by Outlawrie, and not immoveables.

A Bayliff cannot sever horses joynd to a Cart.

Sheep may not be distrained, if there be a sufficient distress besides: No man shall drive a distress out of the County where it was taken.

A distress may not be impounded in severall places upon payn of 5 ^l. and treble 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 and ground, as well as in his own.

If a Bayliff distrain or attach the horse of a master, where the plaint is against the servant, Trespass lyes for the master against the Bayliff, for the Bayliff ought to take notice at his peril whose goods he distrains or attaches, 13. H. 4. fo. 2.14. H. 4.24.11. H. 4.90. and Doc. and Stud. 139.

After distress, or attachment made, [Page 40] if the Bayliff do not return his pre­cept the next Court: Trespass ly­eth against the Bayliff for the Defen­dant, and an action of the Case lyes against him for the Plantiff, 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 distress, he ought to put them in an open pound, for that he which is distrained, may give to them sustenance: but if he distrain dead Chattels, he may put them where he will, but if they spoyle in his default, he must answer for them 19. E. 4. fo. 2. b.

If Goods distrained be put in an open pound, and they dye, it is the loss of the owner, but if they be put in another places, it is not so. 39. H. 8. [...]i [...]l. distress 6. He which distrains beasts may put them in a close house, if he will give them meat, for the putting of them in open pound, is but to the intent, that the owner may give them meat: 1. and 2. Phil. and Mar. cap. 12. tit. distress. That no distress shall be driven out of the [Page 41] Hundred, unless to the open pound, nor above 3. miles.

Where a man distraineth Cattell for doing damage feasant, or for rent, or service, and put them into the common pound, or into another pound or place, and he who hath property in the Cattle, or other person taketh the Cattle out of the said pound, and driveth them where he pleaseth, he who distrained them, may have a writ de parco fracto, F. N. B. 293. E.

A man may not distrain for any Rent or thing done for any Land, but upon the same Land that is charged therewith; but in case where I come to distrain, and the other seeing my purpose, chaseth the beasts, or beareth the thing out, to the intent that I shall not take it for a distress upon the ground, then I may well pursue, and if I take it pre­sently in the high way, or in ano­thers ground, the taking is lawfull as well there, as upon the same Land charged, to whomsoever the properties of the Goods be.

[Page 42]If one distrain my Goods that are not distrainable by Law, I may have a generall action of Trespass, or an action of the Case against him at my chovce, Coo. 4.94.

If one distrain my Kine great with calf, and by driving they lose their calfes, I may have an action of the Cafe, F. N. B. 86.

If Goods be impounded in a close house, or secret place, so that the Defendant cannot come to feed them, and the Goods do perish for want of sustenance, the distrainer must pay for them, 33. H. 8. tit. Distress, 66.

If the distrainer give the Cattell meat in the pound, he cannot com­pell the owner of the Cattell to pay for this, for the distrainer is not compelled by Law to give them sustenance: and if they do agree after the distress upon a summe, yet this is no excuse, but it is for their deliverance, if they do agree at the time of the distress taken that he should give them meat, and that he should have xx ^s. (or a certain pro­pounded [Page 43] summe) for the same, this is a good bargain, 21. E. 4. fo. 53.

An action of Trespass was brought upon the Statute, that none shall be distrained by his Cattell in the Plough, as long as any other reasona­ble distress may be had: and the Plantiff declared the taking to be against the Statute, and did not specially shew that he had other Cattell to be distrained, yet it was adjudged good for the Defendant to alledge this, 4. E. 3. and 18. E. 2.

Stuffe sent unto a Tayler, Weaver, Fuller, Sheareman, Miller, &c. shall not be distrained, for these Officers are necessary for the Com­mon-wealth, and the like Law is of and in a common Inne.

A horse that a man rideth upon cannot be distrained, Fitzherb. in rescous, 11. quod nota.

If a man come into a common Inne, his Goods and Beasts shall not be distrained there, because then it would be prejudiciall to the Com­mon-wealth.

Also goods and chattels brought [Page 44] into a fair or market to be sould, shall not be distrained, per cur. Mich. 7. H. 7. fo. 15.10. H. 7. fo. 21.

Windowes, Dores, Tables fixed on a Post, a Furnace, Pales, Timber, Boards, fixed on the ground, Glasse, &c. cannot be distrained, nor for­feited by an Outlawrie: but if these are not used in a house, but standers by, then they may be distrained, Mich. 21. H. 7. fo. 13. Pas. 14. fol. 25. H. 8. fo. 25. Trin. 21. H. 7. fo. 27.

If a Bayliff come to a house to di­strain, the dores being fast shut and bared, and with his hand through a crevice, or hole, did shove the bar, and open the dore, and did take out of the house 2. Cowes, in the name of a distress, and because he did take a distress in this manner, it was ad­judged the distress to be wrongfull, Abridgment Fizherb, fo. 296.

No goods shall be distrained but the proper goods of the partie, and not pledges, nor yet borrowed goods, 35. H. 6. fo. 25. per. Moyle Justice, And it is not of chattels reall, as a [Page 45] lease for years, nor of apparrell, 7. H. 6.9.

A distress made by the servant of the Bayliff is good, 27. Ass. 6.7.

If a man distrain cattel, and they of their own accord come home again to the owner, he which distrained them cannot take them again, by reason of the first distress, except he doth freshly follow them, per Danby Justice, because of the negligence of the distrainer, 9. E. 4. fo. 2.

A horse cannot be distrained while the owner thereof is riding upon him, or leading of him, nor if he be tyed at a Mill, and came thither with grist, nor a horse tyed at a mans dore, the owner being gone into the house on some business, Pas. 39. Eliz. Coo. B. adjudged.

If a beast be unruly in the pound, and is like to leape over the pound, it seems the distrainer cannot justifie the tying of him to the pound, nor the fettering of him. Broo. trespass 250.27. Ass. pl. 64.

None shall distrain wrongfully upon the penalties provided upon the [Page 46] Statute of Marlb. Westm. 1.16.3. E. 1.

None shall procure any to distrain another, to make him appear at the County Court, or any other inferiour Court, on purpose to vex him, and put him to charge and trouble, on pain, to make Fine to the Lord Pro­tector, and to pay the party grieved treble damages, Westm. 1.36.13. E. 1.

An ax that is in a mans hand cut­ting of wood, nor goods that are im­pounded, and in the custody of the Law, cannot be distrained, being di­strained already, damage feasant.

If one distrain my cattell or goods without any cause or colour, that is not good and just: or if a man ha­ving distrained my goods, will not tell me requiring it, and offering to give satisfaction for what cause he distrained them, or if having cause to distrain, he do distrain beasts not distrainable, as beasts of the Plough, or sheepe, or if having distrain'd beasts distrainable, he after abuse them, as if being a horse or an oxe he work it, [Page 47] or being unruly he fetter it, or lay it so as it be thereby hurt, or if he put the distress in an unknown place, that I cannot tell how to come to it, to feede it: or if he take them out of the County, and put them in a pound in another County, or if he distrain them in a place not distrainable: In all these Cases, I may have an action of Trespass against him, Coo. 8.147. Doct. and St. 112. F. N. B. 47.

What goods may be taken upon an Execution &c.

THe Bayliff after Judgment may distrain the Defendants goods, and detain the distress in his hands, in safegard till the Defendant hath satisfied the Plantiff of the condem­nation, 22. Ass. 72. Statham, 11. Eliz. fo. 93. F. N. B. 165. and 4. H. 6. fo. 17. action.

Goods taken in Execution must be praised, and Execution made of them, 27. Ass. 72.

Where erroneous Judgment is given, the Officer which doth the [Page 48] Execution is excused, 22. Ass. 64. Plowden, 194.

But the contrary, if Judgment be given, that is void or voidable: for where Judgment and Execution is there of a thing whereof they have no jurisdiction▪ there Trespass lies against the Officer, for executing it: but if Judgment be there but erroneous, and so not void, false Judgment lies, and no Trespass against the Officers, Plowsdens Com. 394.

If after Judgment a man doth sell his goods, to defraude me of my Ex­ecution, and nevertheless taketh the profits of them: if it be so found, I may have Execution of the goods sould by fraude, 43. E. 3. fo. 2.22. Ass. 72.50. E. 3.

If the Sheriff open or breaks any house to do Execution at the Suit of a common person, the Execution is good, but the partie, whose house is broken, may have an action of Trespass against him for the breaking of the house, Coo. 5.93.3.

If the Sheriff levie money upon an Execution, and give it to the Plantiff, [Page 49] though he never make any return to the Court, it is good enough, Cook 5.90.4.67.11.40.20 H. 6.24.4.

If a man hath a Judgment in this Court against the Plaintiff, or the de­fendant, and the execution is deferred in favour of him, the partie grieved may have a Writ de executione Judi­cii from above, to hasten it. F. N. B. 120.

Goods pawned shall not be taken upon Execution, for the debt of him which pawned them, during the time they are pawned, 24 H. 8. Pledge 28. & 4 E. 6. distresse. 75.

By Fieri facias (or Levari fa­cias) the Bayliff cannot break the door or chest to take goods in Exe­cution, for if he do, trespass lyes a­gainst him for the breaking onely, and not for taking the goods in Execution, 18 E. 4. fo. 4. & 13 E. 4. fo. 9. by Choke, notwithstan­ding, 8 E. 2. tit. Executors 152. contrary.

If a man letteth to farme by the year Oxen, and cattell, and after the [Page 50] lessee for years is condemned in an action of debt, these cattell and Oxen demised, during the terme, cannot, nor shall not be taken in Execution for this debt. 22 E. 4. fo. 10.

A Bayliff cannot pull the latch to open the door, if it be shut to make a distresse, Coo. 5.91.93. Dyer, 67.224. But if the out-door of the house be open, the Sheriff may go into the house and take any thing there lyable to the Execution, and being come in at the open door, it seemes he may break open any of the inner doores, 18 E. 4.4. Coo. 5.90. Cook 4.74.

Of the Replevin.

CAttell being-distrained for Rent, &c. the owner must go to the County Clerke (or some one of the Deputies appointed in the County: for the granting out of Replevins) to have a Replevin directed to the Bay­liffs to Replevie them, and the partie must be bound in an obligation to the Sheriff, to prosecute his action against him, or them that did take the cattell, [Page 51] and to make returne of the same cat­tell to the distrainer, if he by justi­fication or avowrie do recover. And if he pursue it not, or if it be found or judged against him, then he that took the distresse, shall have again the di­stresse, and that is called the return of the beasts, and he shall have in such case a Writ from above de Returno habendo.

This Replevin may be removed out of the County into the Common Pleas by a Writ of Recordare.

If the goods cannot be taken by the first Replevin, then issues forth an alias, then a plures, then a toties quo­ties, and if none of these will do, then a Withernam.

The sueing out of a Withernam is after this manner.

If the Bayliff return at the next County, upon the toties quoties, that he cannot Replevie the cat­tell, because they are esloyned, or that he cannot have view of the cattell, then the Sheriff ought to make inquirie if it be true which is returned, and if it be so found out, he [Page 52] shall make a precept to the Bayliff in the nature of a Withernam to take as many cattell of the other partie. And if the Bayliffs upon the Withernam thus awarded, return that the other partie hath nor any thing, &c. he shall have an al. and pl. and so ad in­finitum, and hath no other remedy in this Court.

But now to return again to the Re­plevin, if the thing distrained, be put by the distraynor in a place where the Sheriff cannot come at them to make a replevie, he may take posse Comita­tus, viz. the power of the County, and after demand, beat down the door or place, where they are, to take them, and the owner of the goods shall reco­ver double for his loss what ever it be.

He that hath the Replevin must have either a generall or a speciall property in the thing; as of goods pledged or the like, and it must be in him at the time of the taking, or o­therwise he cannot have or maintain the Replevin for them.

Divers mens cattell being taken, they may not joyn in one Replevin, [Page 53] but must have severall Replevins.

If a man taketh and impoundeth goods, a Replevin may be of more cattell than were impounded, for if a man distrain Cowes or Ewes, &c. they have in the pound Calves or Lambes, the Plaintiff shall have a Replevin for them all, and by Little­ton it was adjudged, Mich. 8 E. 3. That if a man distraineth and im­poundeth a Sow great with Piggs in the pound, the owner shall have a Replevin for the Sow and the piggs.

If cattell be distrained and a Reple­vin is sued, the defendant doth avow for taking of them damage feasant, or for rents, customes and services, and are at issue, and after the plaintiff is non-suite, or otherwise barred, he shall loose his costs and damages, by the Stat. of 7 H. 6. cap. 5. but by the Stat. 21 H. 8. it is clear, Pasc. 14. Mar. Dyer. 141.

Of the nature, and return of those Writs that do remove actions out of this Court into superior Courts.

WRits removing suites out of this Court, may be without shewing cause in the Writ, [...] the remove be by the Plaintiff: but not without shewing good cause, if it be by the defendant.

And first of a Recordare.

Recordare facias lo­quelam.A Recordare is a writ issuing out of the upper Bench or Common pleas, directed to the Sheriff,Its nature. commanding him to send a plaint that is before him in his County Court, without writ of Justicies into the Court from whence the Recordare came, to the end that the cause may be there deter­mined. And the Sheriff is hereupon to summon the other partie 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,The Re­turn. and the seals of four suitors of the same Court.

[Page 55]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 the Plea, of which within is made mention, which appears in a Scedule to this writ annexed, and that Record I have before the Justices within written, at the day and place within contayned, 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, & 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 Scedule to this writ annexed.

At my County Court held at the Castle of Y. in the County aforesaid,The Sce­dule. such day and year, before J R. M L. J. S. and S D. four suitors of the Court aforesaid amongst other mat­ters is contained.

Yo. ss. R S. complaineth again B. The Plea. [Page 56] W. of a Plea of Debt▪ (or as the case requires.) J B. Esquire Sheriff Pledg. of Prosec. J S. J D. in testimony of &c.

Orthus.By venue 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 J L. four legall Knights of my County, of those who at that Record present were, as it appeareth in a certain Schedule to this writ annexed, accor­ding to the Exigencie 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 [Page 57] within written, at the day and place within contained, and to the parties within written that day have pre­fixed, that then they be there, in that Plea, as just it may be to proceed as within to me is commanded.

A B. complains of C D. in a Plea of taking,The Sche­dule. and unjust detayning of the beasts of him the said A. B. in testi­mony of which matter, E B. S D. J. W. and J R. four legall men of those who at the Record present were in the full Court at the Castle of Y. in the County aforesaid, the tenth day of A. the year, &c. to the same Record their seals severally have put the day and year abovesaid.

The nature of a Pone.

A Pone doth nothing differ from a Recordare, but that a Pone is al­wayes to remove such suites as are be­fore the Sheriff by writ of Justicies, and not by plaint onely; but the Recor­dare is to remove the suite that is by plaint onely without writ. F N. B. 70.11.

[Page 58] The Re­turn.By vertue of this writ to me dire­cted, I have put before the Justices, &c. of the Common Bench at West­minster, the Plea which is in my County by Writ of his Highness the Lord Protector of Justicies, betwixt A B. and C D. of a Plea of Debt, as it is said, as it appeareth in a cer­tain Schedule to this writ annexed, &c.

The Sche­dule.At my County Court held at the Castle of Y. in the County aforesaid, on Munday the twelfth of A. the year, &c. A B. complaineth against C D. of a Plea of Debt, in testimony of which matter, R L. S R. J O. and S D. four legall men of those who at the Record present were in full Court there seals severally have put the day and year abovesaid.

The Plea by writ. Prohibiti­tion. A B. complaineth of C D. of a Plea of Debt. xx l.

A Writ of Prohibition is of the same nature of a Recordare; and a Pone, but not now used.

Consulta­tion, or Proceden­do.These two writs are both of one nature, though the Writ of Consul­tation, be obsolete, and the writ of [Page 59] Procedendo stept up in its place, it lieth where a cause hath been for­merly removed by Pone, or Recordare, from this Court to one of the Courts at Westm. and for want of sufficient cause of removeall is sent back again, Fitz. old Natura. Brev. 50.

The nature of a Writ of false Judgment.

A Writ of false Judgment lieth where an erroneous Judgment is given in this Court, (being no Court of Record) then the partie grieved by the Judgment, may have this writ, and remove all process of the Suit into the common Bench, and there it shall be examined, if it be found erroneous the Judgment, shall be reversed, and the suitors of the Court, who gave the Judgment, a­merced.

By vertue of this Writ to me di­rected, to be Recorded,The re­turn. I have cau­sed the Plea (which is in my Coun­ty) together with the proceedings and the Judgment, betwixt the parties [Page 60] beneath, and to the same parties day have prefixed to be before the Justices within written, at the day and place within contained, as that writ ex­acts and requires, which Plea with the proceedings and judgment, ap­peareth in a certain Schedule to this Writ annexed.

The Sche­dule.A plaint by writ in the County Court, holden at the Castle of Y. in the County aforesaid, on Monday the 23 ^d. day of August, the year &c. before the suitors of the same Court, in the tine of I. B. Esq Sheriff of the County aforesaid, according to the custome and priviledges of the same Court, (time whereof the me­mory of man is not to the contrary) have been used and approved of in the same.

Writ of Justices.At this Court came A. B. in his proper person, and brought here into Court a writ of his Highness the Lord Protector of Justicies. Which said Writ followes in these words; Oli­ver Lord Protector of &c. To the Sheriff of Y. greeting A. B. hath com­plained to us, that C. D. upon him [Page 61] the said A. B. at the Castle of Y. have made an assault, and have bea­ten, wounded, and evill intreated him, so that of his life it was despaired, and have done him other wrongs, to the great damage and grieveance of the said A. B. and therefore we com­mand you, that you heare the said plaint, and after cause them to be therefore brought to Justice for the same, that I heare no more complaint therein for want of Justice, witness our selves at Westm. the 10 ^th. day of August in the year &c. and there­upon found pledges to prosecute the said plaint, that is to say, Jo. Doo. and Ric. Roo. and thereupon the said A. B. put in his place S. D. his Atturney in the plaint aforesaid, and by his said Atturney required process to be made to him upon the same: And it was commanded by the said I. B. Esq Sheriff of the said Coun­ty to all, and singular his Bayliffes,Warrant upon the writ. joyntly and severall, and their De­puties, that they or some of them should do Justice to the said C. D. so that he should be and appear at the [Page 62] next County Court to be holden at the Castle of Y. on Munday the 20 ^th. day of September, then next in the year aforesaid, to answer the said A. B. in the plaint aforesaid, at which day came the said A. B. by his At­turney aforesaid, and offered himself against the said C. D. in the plaint a­foresaid; and then and there came I. P. one of the Bayliffes in the Coun­ty aforesaid, of the said I. B. Sheriff of the County aforesaid, and returned the said precept so directed as afore­said,Essoyn. De malè vener. served and executed on him: and the said C. D. did Essoyn, because he could not come untill the next County Court, to be holden at the Castle aforesaid, at which said next Court (viz) on Munday the 18 ^th. day of October, then next following in the year abovesaid came the afore­said A. B. by his Atturney aforesaid, and offered himself against the said C. D. in the plaint aforesaid, and the said C. D. then and there came in his pro­per person to answer the aforesaid A. B. in the plaint aforesaid, and put in his place I. R. his Atturney against [Page 63] the said A. B. in the plaint afore­said, and by his said Atturney desired of the said Court, that the said A. B. should declare against him upon his said plaint: and thereupon the said A. B. by his Atturney aforesaid de­clared against the said C. D. upon the plaint aforesaid, in manner and form following.

Y ss. A. B. by vertue of a Writ of Justicies by S. D. his Atturney com­plains of C. D. of an action of Tre­spass and Assault,Declarati­on for that the said C. D. the 10 ^th. day of October in the year &c. at the Castle Y. &c. in and upon the aforesaid A. B. did make an assault and affray, and him did beat, wound, & evil intreat, so that he did despair of his life, and other harms did do unto him to the great damage of the said A. B. wherefore the said A. B. saies he is damnified to the value of xxl. and thereupon brings this action, &c. Whereupon at the same Court, at the request of the Defen­dant, day was given to the said par­ties in the plaint aforesaid,Empar­lance. till the next County Court, to be holden be­fore [Page 64] the suitors aforesaid, on Munday the 15 ^th. day of November then next following, saving to the Defendant &c. at which day at the said Court before the suitors aforesaid, holden at the Castle of, Y. aforesaid, came as well the said A. B. by his Atturney afore­said, as the said C. D. by his Attur­ney aforesaid, and then and there the said I. B. Esq was removed from the Office of Sheriff of the County aforesaid, and R. L. Esq was duely elected, and did enter into the said Office of Sheriff, of the County of Y. aforesaid, whereupon at the same Court at the request of the parties, further day was given to the said par­ties in the plaint aforesaid, untill the next County Court, on Munday the 13 ^th. day of December, then next following in the year abovesaid, to be holden before the suitors aforesaid, saving to the parties &c. at which day at the said Court before the sui­tors aforesaid, holden at the Castle aforesaid, came as well the said A. B. by his said Atturney, as the said C. D. by his Atturney, aforesaid, and the [Page 65] said C. D. by his Atturney aforesaid,Non sum informatus. came and defended the injurie when &c. And the said Atturney said that he was not informed by his said Cly­ent of any answer for him the said C. D. to the said A. B. in the plaint aforesaid to be given, whereby the said A. B. did remain against the said C. D. thereupon without de­fence, for which the said A. B. ought to recover against the said C. D. his damages by occasion of the trespass, and assault, and wounding aforesaid, but because it was not known to the Court, what damages the said A. B. had sustained by reason of the pre­misses: therefore at the next County Court holden at the Castle of Y. afore­said, in the County aforesaid, before the suitors aforesaid, upon Munday the 10 ^th. day of January then next following in the year aforesaid,Jury to in­quire of damages. it was required by the Oathes of I W. RS. SG. ML. TP. &c. twelve good and lawfull men of the Coun­ty aforesaid, being present in the Court, and in the full County sworn to inquire what damages the said A. [Page 66] B. sustained by occasion of the tres­pass, and assault, and wounding, say upon their Oathes, that the said A. B. hath sustained damages by occasion of the trespass, and assault, and woun­ding to x ^l. and for his costs and charges by him in that behalf expen­ded to 2 ^d. therefore it was considered by the said Court that the said A. B. should recover against the said C. D. his damages and costs aforesaid, by the Jurors aforesaid in forme a­foresaid assessed, and also fourty shil­lings by the Court aforesaid, to the said A. B. by his assent for increase of costs to him adjudged, which said damages and costs do amount to 12 ^l. and 2 ^d. and the said C. D. in Mercy &c. In Testimony &c.

The nature of an Accedeas ad curiam.

This Writ issues out of the Upper Bench, or Common Pleas, dire­cted to the Sheriff, commanding him to go to such a Court of some Lord or Franchise, as Court Bason or the [Page 67] like, (being no Court of Record) where a plaint is sued, or a false Judgment is supposed to be given in some suit, which hath been in the Court; and by this the Sheriff is there to make record of the same suit, in the presence of the suitors of the same Court, and four lawfull men of the County: and of this he is to make certificate into the Court above, at the day appointed by the Writ: F. N. B. 71. Plowden. 74. Finch. 444.

This writ cannot be had without shewing some cause for the removall of it: as that a Free-hold is in que­stion there, or some forraign plea is pleaded not triable in that Court, or such like, F. N. B. 70.119.

The County Clarke is to make a warrant upon the writ in this man­ner viz.

Record to be delive­red in Court.By vertue if this writ to me dire­cted [Page 70] in form within written, I came to the Court within written, and in that full Court to be Recorded I cau­sed the Plea within written; and the Record as it appeareth in a Schedule to this writ annexed, I have before the Justices at the day and place with­in contained, under my Seal, and the Seals of T R. &c. four legall men of my Shire of those who at the Record present were, and to the par­ties, &c.

Or thus. If the Re­cord be not retur­ned.By vertue of this writ to me dire­cted, and in my proper person having taken with me R S. &c. good and lawfull Knights of my County, I came to the Court Baron of G S. J K. &c. holden at P. for the Honour of P. to record the Plea within written, at the day and place within contained, as within to me is com­manded; whereupon the suitors of the Court aforesaid at P. aforesaid, in full Court, me the within written Sheriff the said writ there to execute, or as to the said Plea in any manner to intermit, altogether denyed; for which execution of the writ aforesaid make I could not.

The Return of a Writ for the Election of a Coroner, after the death of another.

AT my County held such a day and year in full County aforesaid, by vertue of this writ of the assent of the same County in the place of R O. within named, who deceased is, I have chosen a Coroner, viz. J M. who (as the manner is) hath taken his oath corporall, that he will do and keep those things which to the office of Coroner in the Country aforesaid, be­long to be done, as within, &c.

The Return of the Writ of Exigent.

This writ so above Indorsed,Or thus. toge­ther with the writ of Oliver, Lord Protector of &c. of Supersedeas to it annexed to me delivered was by J B. Esquire late Sheriff of the aforesaid County, my next predecessor.

If it be against a woman, she can­not be said to be outlawed, (for the reasons I shewed before) but waived, so that the latter part of the return must be thus, viz.

Therefore according to Law and custome aforesaid B D. waived is.

By vertue, &c. at my County,Defect of the Coro­ner. held on Munday, &c. the said year, &c. [Page 74] within written, the aforesaid T C. the fifth time exacted was, and appea­red not, and for defect of N B. and R C. Coroners of the County afore­said further thereupon to prosecute I could not.

Defect of the Coun­ty.By vertue, &c. and at my County, &c. and that there were not more Counties in the County aforesaid held, from the day of the receit of this writ, to the day of the return of the same, wherefore nothing done is at present. Or thus,

And therefore in the Execution of this writ farther to be done, nothing acted is.

Supersede­as.By vertue, &c. at my County a­foresaid held on Munday, &c. in the year &c. within written, the afore­said C D. the fourth time exacted was, and appeared, and brought forth to me, the writ of his Highness the Lord Protector, &c. of Supersedeas which to this writ annexed is: wherefore the Execution of this writ farther to be done, I have superseded altoge­ther.

Or thus.As in the foresaid writ of his High­ness [Page 75] the Lord Protector, &c. of Su­persedeas, to me is commanded.

As to exact, take Outlawed,Or thus. or at all molest the within named J R. by vertue of this writ, to the Justices, &c. within written; at the day and place within contayned I certifie, that by vertue of a certain other writ of his Highness, &c. to me directed to this annexed, I have superseded alto­gether, as by that writ to me is com­manded.

And besides J S. who hath rendred himself to the prison of,Rendred himself. &c. of the Castle of Y. whose body before the justices within written, at the day and place within contained ready I have, as this writ exacteth and requi­reth. And besides J C. who dead is,Dead. will not appear, therefore by Judg­ment,Waived. &c. and the aforesaid T C. wai­ved is in presence of T R. and F W. Coroners of, &c. of the County afore­said.

At the County,Languid. &c. 1, 2, 3, 4. ex­acted he was, and hath appeared, and rendred himself to the prison of, &c. of the Castle of Y. where so sick he is, [Page 76] than for fear of Death him before the Justices within written, at the day and place withing contained, have I cannot.

The Return of the writ of Proclamation.

BY vertue of this writ to me di­rected at my County of Y. held at the Castle of Y. within written on Munday, &c. the year, &c, within written, the first time to be proclai­med I caused; and at my County of Y. held at the Castle of Y. aforesaid, in the said County of Y. on Munday, &c. the year, &c. within written, the second time to be proclaimed I cau­sed; as also' at the Generall Session of the Peace held at Skipton for the West-Riding of the said County, within writen, Thursday, viz. the twelfth day of September aforesaid the year, &c. within written, publiquely to be proclaimed I caused, that J C. and all other the Defendants within named, themselves, to render to the within Sheriffs of L. so that [Page 77] the same Sheriffs have their bodyes be­fore the Justices within written, at the day and place within contayned; as this Writ exacteth and requireth.

Of Processe in this Court.

PRocesses of this Court, are either Originall issuing out before Judg­ment: Or Judiciall issuing out after Judgment. Originall is a Distring as, or County warrant, &c. Judiciall processe is onely a fierifacias, or Exe­cution, directed to the Bayliff, to le­vie the debt or damages, and cost of suite recovered, of the goods and chat­tells of the defendant, or of the plain­tiff, if he be Non-suite.

And first of the Originall Processe, viz. Distring as, or County warrant; which is a precept issuing out for a debt under fourty shillings. Its form is as followeth.

If the Defendant do not appear the next Court after the Distring as exe­cuted; then farther processe issueth out against him viz. a Duces tecum to cause him to appear. If not upon the first Duces tecum, he appear, you may have an al. Duces tecum, and a plur. Duc. tec. ad infinitum, until he appear, and no other remedy here. The form is thus.

If you have your Distring as, or Duc. tec. speciall. Then thus,

J B. Esquire Sheriff of the County aforesaid,Special. to all my Bayliffs and their deputies in and through the County aforesaid; more especially to J B. and R S. my Bayliffs in this behalf, spe­cially deputed, greeting, &c. then proceed on as in the former.

Of the Writ of Justicies.

THIS Writ issues out of the Chancery, directed to the She­riff, giving him power to hold Plea in this Court, in actions for fourty shil­lings or above. It is called a Justicies, because it is a Commission to the She­riff to do a man Justice and right, and requires no return, unlesse the action be removed by Recordare, & then the Writ must be returned together with the Record. The forme of the precept upon the Writ is as followeth.

A Replevin.

IF any goods be taken wrongfully, (as before I have more largely de­clared unto you,) then the partie grieved, may have a Replevin, which must be made after this manner.

And if the Cattell be not delivered by vertue of the said Replevin, then the Plaintiff may have an Alias Replevin, with these words, vel cau­sam mihi signific. which Replevin must be made after this manner.

Note that when a Replevinis gran­ted,Notae. [Page 86] there must be a bond taken of him to whom it is granted, or of some other for him, with one or two sure­ties, to appear at the next Court, and to prosecute his suit with effect, or else it may be prejudiciall both to the granter of the Replevin, and to the executioner thereof: and the form of that bond, and condition thoreof is this.

The con­dition.The condition of this Obligation is such that if G. A. do appear at my [Page 87] next County Court to be holden for the County of Y. at the Castle of Y. on Munday the, &c. next, and do prosecute there with effect his suit which he hath commenced against H. H. for the taking and unjust de­taining of two Kine, of the goods of him the said G. A. and do make return of the goods, if return of the same shall be adjudged: that then this present Obligation shall be void and of none effect, &c.

The condition,Or thus. &c. that whereas G. A. hath obtained from the above-named Sheriff, a Replevin for the de­livery of two Kine and other goods distrained, and detained by H. H. and others, if therefore the said G. A. do prosecute his suit upon the said Replevin with effect, and do make return of the goods, if return thereof shall be adjudged; and also do save and keepe harmeless the said Sheriff, by reason of the said Replevin, to him granted as aforesaid, that then this &c.

A Tolt.

TOlt, comes from the Latin word tollo, viz. to take away: It is a precept by which a cause depending in a Weapentack Court, or other in­feriour Court Barron, may be from thence removed into this Court; The form is this.

Judiciall Process.

JUdiciall Process issues out after Judgment, either by default, or ni­hil dicit against the Defendant; Non-suit against the Plantiff: The form of Judiciall Process, or a fieri facia [...] is this.

Of a Scire facias.

IF a Fieri facias doe not issue our within a year and a day, after Judg­ment entered; it cannot be had, till there be a Scire facias first sued out, to summon the Defendant to shew cause why execution should not be done, and if now he neglect to an­swer, or cannot be found to be sum­moned, then a second Judgment shall be given, that that Execution be done on the first Judgment.

If Judgment be given against a Te­stator, albeit it be within a year after the Judgment had, yet there must first issue out a Scire facias, against the Executor or Administator (before Execution) to shew cause why it should not be had.

Or if a man recover against a wo­man sole, and she become covert, viz. take a husband within the year [Page 95] and the day: then he that shall re­cover must have a Scire-facias against the husband.

Scire facias, post diem & annum.

Whereas W. F. of late in the Court of the aforesaid County, by Judgment in the said Court, of the County aforesaid, held at the Castle of Y. on Munday the tenth day of Febr. 1654, before the Suitors of the said Court, recovered against G L. aswell a certain debt of xxxij s. which the said W F. in the same Court, recovered against him, as 13 s. and 10 ^d. which to the said W F. in the same Court was adjudged for his damages which he sustained by the occasion of the detaining of the debt, of which he is convicted. For as by the proceedings from thence in the same Court residing, notwithstanding the manifest Execution of the afore­said Judgment remaines to be done as by insinuation, the aforesaid W F. [Page 96] hath recovered. And because that I will that those things which were in the said Court be rightly done to de­mand due of the said Judgment. Therefore I command you, that by honest and lawfull men of my Bayli­wick, you give notice to the afore­said G L. that he be at the Castle of of Y. at my next County Court, there to be holden upon Munday the third day of May next to shew if he have any thing to say, or no, why the said W F. ought not to have his levie or execution against him accor­ding to the force, form and effect of the said recovery, if it seem expedient to him, and have you then and there the names of them, by whom you give him notice, and have this pre­cept, &c.

Given under the Seal of my office the fourth day of April, in the year of our Lord 1656.#

Scire facias against an Executor, after Judgment against the Testator.

Whereas N. N. late in the County Court of the said County held at the Castle of Y. on Munday, &c. be­fore the then Sheriff of the said Coun­ty, by Judgment of the said Court had recovered against N N. as well a debt of fourtie pounds, as twenty two shillings and two pence costs, for his damages which he sustained by reason of the detaining of the said debt; wherefore he is convict, as ap­pears by the procedings remayning in the said Court. And whereas the exe­cution of the said Judgment yet re­maineth to be done, and the said N N. since the giving of the Judg­ment aforesaid is dead, as by the in­timation of the said R. I am infor­med. And because I am willing that those things, which are rightly done in the said Court, should be duly put in Execution; I command you that by honest and lawfull men of the said [Page 98] County, you make it known to F N. Executrix of the Testament of the said N N. that she be at the next County Court to be holden for the said County at the Castle of Y. on Munday, &c. to shew if she have any thing, or know what to say, why the said R. ought not to have his Execu­tion against her of the debt and da­mages aforesaid, to be levied of the goods and chattells which were of the said N N. at the time of his death, and further to do and receive &c.

Gi­ven under the Seal of my Office, &c.#

Venire facias.

I command you, and every of you, that you cause to come before me, or my lawfull Steward, by me appointed for the County Court, to be holden at the Castle of Y. on Mun­day, &c. All those severall persons mentioned in the pannell hereunto annexed, to trie such severall issues [Page 99] between party and party, as shall then and there be given them in charge. And hereof you must not fail, as each of you will answer the contrary at your perills, together with this Pre­cept.

Given under the Seal of my Office, &c.#

Or thus.

These are to require you the said Bayliff,Yo. ss. to cause to come twelve good and law­full men of your Bayliwick, that they be and appear at the next County Court holden at the Castle of Y. on Munday, &c. next ensuing to try an issue joyned between A B. Plaintiff, and C D. Defendant, concerning a Plea of debt. (or as the case is) And this given, &c.

Subpoena, al. dict. a Warrant ad testificand.

to you, and every of you I command, that (all excuses and de­layes [Page 100] being set appart) you and eve­ry of you be and personally appear at the next County Court holden at the Castle of Y. on Munday the tenth day of June next to testifie the truth ac­cording to your knowledge in a cer­tain action there depending, between A B. Plaintiff, and C D. Defendant, on the part and behalf of the Plain­tiff, in an action of debt. And hereof fail you not, under the forfeiture of 100 ^l. each of you.

And this given under the Seal of my office the, &c.#

A Precept upon a Pro­clamation.

By vertue of a Proclamation upon Exigent to me directed, I command you and every of you, that you or some of you make two severall Proclamations. The one to be made at the generall quarter Sessions of the Peace to be holden for the North-riding of the County of Y. And the other to be made at the Pa­rish [Page 101] Church after Divine service▪ where the severall persons under­written live, and that they and every one of them yeeld their bodyes to me the Sheriff of the said County, where the exigent lyeth, to answer the person, at whose suite the Exigent is against them. And hereof fail not at your perill. Given under the Seal of my Office the 22^th. day of August in the year of our Lord 1656.

At the electing of the Coroner, he is to be sworn in Court, by the County Clark, for the due Execution of his Office. In this manner.

YOu shall swear, that you well and truly shall serve his Highness the Lord Protector and the Common­wealth in the Office of a Coroner: and as one of his Highnesses Coroners of the County of Y. and therein you shall truly and diligently do, and accomplish all and every thing and things appertaining to your Office, after the best of your cunning, wit, and power, both for the profit and good of the inhabitants within the [Page 102] said County, taking such fees; as you ought to take by the Lawes and Statutes of this Commonwealth, and no otherwise; So help you God.

A Warrant of Atturney.
To S D. one of the Atturneys of the County Court, for the County of Y. &c.

I A B. do hereby desire you and do give you full power, license and authority, to appear for me, and for, &c. in the said Court on Munday, &c. in an action of debt, for &c. at the suite of E D. upon an Obligation conditioned for the payment of, &c. in which said Obligation I stand bound as principall. And this shall be your sufficient warrant in that beh­alf. In witness, &c.

A Deputation, for a Bayliff of an Hundred.

Know ye that I the said Sheriff, have deputed, con­stituted, and appointed R. D. of A. in &c my lawfull Bayliff and Depu­tie within the Hundred of B. in the North-Riding of the County of Y. a­foresaid, to have and execute the said Office of Bayliff within the said Hun­dred, or elsewhere, within the said County of Y. or as occasion shall re­quire it, during my pleasure only and no longer: and to receive and take to my use all fees as well for Distress, Attachment, and Perqui­sites of Courts, and other profits due and accustomed whatsoever to the said Bayliwick belonging, or in any wise appertayning; And what­soever my said Bayliff shall lawfully execute and doe in his said Office, I do hereby warrant, ratifie and con­firme, as my own act and deed.

In witness whereof I have hereunto set the Seal of my Office this seventh day of July, in the year of our Lord 1656.#

The Order of Judges at the Assizes at york, 24 ^th. day of July, 1654. concerning Essoynes illegally retur­ned into this Court.

WHereas of late Judgments have been surreptitiously obtained in this Court by reason of Essoynes un­duely brought into the Court, by Bay­liffs or their Deputies, and others, af­ter Attachment of goods for appea­rance, which pretended Essoynes, being afterwards disavowed by the Defendants, have occasioned sundry complaints, and suites 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,De male vener. that henceforth no common Essoyne shall be entered and allowed by the Court to save a default, unless it be warranted in writing, under the proper hand-writing, or under the hand, Seal, or mark, of the Defen­dant, thereby specially authorized, [Page 107] the partie being the Essoyner to cast such Essoyne for him, and in his name; for the truth of which sub­scription, or sealing, the same Es­soyne is to be sworn in open Court, and no Essoyne is to be admitted, or received from henceforth being not affirmed and sworn unto, and so en­tered upon the back of the Warrant of Attachment, which is to remain upon the file amongst the rolls or pro­ceedings of the Court, and if any o­ther person (not being a Bayliff) shall be the Essoyner, 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 re­mayn in Court as aforesaid; And no Judgment shall be given where there is no other appearance but an Essoyn: Unlesse the Essoine shall appear to be warranted as aforesaid.

Some select Presidents of Declaratins and Pleadings incident and belong­ing to this Court. Debt.

Trespas.

Pleadings.