Sect. I. Of the nature of this Court.

THe office of the Sheriff The She­riffs of­fice. hath this Court incident and belonging to it; and not to be severed nor granted away from it. Nay the Lord Prote­ctour by his Letters pattents cannot grant away the office of the Clark of the County Court, nor the fees &c. thereto be­longing; and if whilst the of­fice or place of the Sheriff re­maines void, the Lord Prote­ctour (by his Letters Patents un­der the Great Seal) shall grant away the said office of the Clark [Page 3] of the County, (or Shire Clark of the County) or shall appoint any to occupy or use the same, yet when the Lord Protectour shall afterwards make one She­riff, he shall avoid that grant: for that the County Court, and the entring of all the proceedings therein are incident to the office of the Sheriff; & the Sheriff is to appoint such Clarks under him Sheriffs Clark. in his County Court, for whom he will answer at his perill.

Sect. II. Of the time of keeping this Court.

THese County Courts must The County Court to be kept monthly. be holden and kept from moneth to moneth: and must be no longer deferred, but one [Page 4] moneth from Court to Court, and so these Courts are to be kept every moneth, upon a day certain, and no otherwise: and the moneths to be reckoned by eight and twenty dayes and not by the Kalender; and so with­in the twelve Shires of Wales, their Sheriffs must keep their Counties monethly.

The necessity of keeping this The rea­son of the keeping this Court monthly. Court every moneth and upon a day certain, is by reason of the Lord Protectors writs of Exi­gents which must be read there.

Sect. III. Of the place of keeping this Court.

AS to the place wherein these Courts are to be [Page 5] kept these things are to be known.

First, The Sheriff of Nor­thumberland Sheriff of Northum. (by the statute made Anno 2. Ed. 6. Chapter 25.) is to keep the County Court of that Shire in the Town or Castle of Alnewick, and in none other place.

Secondly, The Sheriff of Sus­sex Sheriff of Sussex. (by the statute made Anno 19. Hen. 7. chap. 24.) is to keep and hold the Shire Court for that Shire, one time at Chiche­ster, and the other time at the Borough of Lewes, and so to be kept by turn for ever: and e­very Shire Court holden there to the contrary, and all things done therein shall be void.

Thirdly, The Sheriff of the Sheriff of Chester. County of Chester, is to keep his Shire Court in the Shire­hall [Page 6] of the said County.

Fourthly, The Sheriffs Shire Sheriffs of Wales. Courts in Wales of the County of Brecknock, shall be holden at Brecknock; of Radnor, at new Radnor and Prestene; of Montgomery at Montgomery, and Maghenleth; of Denby, at Wrixham; and of Monmouth at Monmouth, and Newport; by turn, one after another.

Fifthly, For the County of Glouc. it may be kept in the ci­ty of Glouc. This Court may be kept in other Counties, in a­ny place of the County where­soever the Sheriff and Free­holders please.

Sect. IIII. Of the Iudges of this Court.

AS to the Judges of these Courts; these things are to be known.

First, In this Court, (which is of the nature of a Court Ba­ron) not the Sheriff nor the Steward, but as to all actions and proceedings by a Iusticies or other writ, as also in other Suits which are there by plaint without writ, the Freeholders Freehold­ers or sui­tors to be Judges. of the County or Suitors are Iudges there; But as to Out­lawries the Coroners only are Iudges. and the Sheriff, Stew­ard, and Bayliffs are ministers: and therefore the Sheriff can do no act there without the assent of the Suitors, and if he do, an Action of the Case lieth against Action of the Case against the She­riff. False Judge­ment. him, not a writ of false Judge­ment as it doth against the Sui­tors, if they give a false Judge­ment: and thereupon they are to be amerced, whether the Suit be upon a Iusticies or not.

Secondly, There must be two Freeholders at the least, or else the Court cannot be held.

Thirdly, In some speciall writ, (now out of use) the She­riff is Judge there.

Fourthly, If the Freehold­ers do not appear, they may be Affering. amearced, the amearcement affeared, extreated and levy­ed, but it must be done by two Freeholders at the least, and may not be done by the She­riffs without Freeholders.

Sect. V. Of the Povver and Proceed­ings of this Court in Ge­nerall.

THe power in Generall of this Court is either ex offi­cio, and of it self, or by commis­sion [Page 9] called a Iusticies, and in Justicies. both cases the Freeholders, not the Sheriffs, are Judges of this Court: and they may by their own authority hold plea of, hear and determine all lesser a­ctions; as actions of debt, tres­passe, covenant, detinue, ac­count, and the like; and in ca­ses of Replevin, where the debt or damage is not forty shil­lings, or upwards, and no free­hold is in question, and by a Iusticies they may hold plea of, hear and determine, all actions of what value soever; and not­withstanding the freehold it self being in question. And this not onely between persons and parties living within the County where the defendant lives, but also between persons living elsewhere out of the [Page 10] County; for any cause or con­tract ensuing within the Coun­ty, or any transitory things.

In all which cases their pro­ceeding is much after the exam­ple of the higher Courts; by entring of Plaints by the plain­tiff himself, or his Attorney, putting in of pledges, filing de­clarations. And if the Defen­dant appear not by processe of summons, attachment, and di­stresse, upon attachment infi­nite, till he do appear; which when he doth, he is to plead, and so to the triall of the cause: which is commonly by wa­ger of law, but by consent of the parties it may be by Jeu­ry: as it may be also where the use of the Court is so. And if judgement be given against the defendant, the execution is by [Page 11] distresse, a warrant is sent from the Judges to the Bailiff to seise the defendants goods, put them in pound, or sell them, and bring the money in Court for the Plaintiff, as the custome and course of the Court is. And if the Court give judgement, or do any thing contrary to Law, the party grieved thereby must have his remedy by a writ of false judgement. And Exe­cutors and Administrators may sue and be sued here, as in other Courts.

But we shall open these things more particularly in the things that follow.

Sect. VI. Of a Iusticies.

A Iusticies is a writ in the nature of a commission, directed to the Sheriff for the dispatch of justice in his Coun­ty Court, in some especiall ca­ses, wherein of his own autho­rity he cannot deal. And as to this part these things are to be known.

First, That albeit the writ doth lie in divers cases, yet at this day it is very rarely used in any case, but in an action of debt, or some such like action, of, or above forty shillings; in which case, the Sheriff hath not power in this Court without this commission.

Secondly, That albeit the writ be directed to the Sheriff, yet are the Suitors the Judges, and their proceedings alike in this as in other actions. And yet in this it is a County record; and so it is not in the proceed­ings of all the rest.

Thirdly, The Sheriff upon this writ may not make a pre­cept to a Bayliff of a Franchise to have his cognizance of the cause; nor may any other but the Sheriff and the high Sheriff (as it is held) himself hold plea upon this writ.

Fourthly, A suit here upon Remove. this writ is removeable, as ano­ther suit is, that is without it.

Fifthly, The Sheriff is not bound to make any return of this writ.

Sect. VII. Of an Attorney and Pledges.

ANy man may make a ge­nerall Attornees Attorney to sue for, or against him in all pleas in this Court. And for pledges pledges. which are such as do undertake for the Plaint, that they should prosecute the suit, and stand to the judgement of the Court, there ought to be such in this, as in other Courts, of sufficient men of the county: but this it seems is out of use, and not ne­cessary at this day.

Sect. VIII. Of a Plaint.

THe Plaint is the first entry of the persons to and [Page 15] cause of the action in the Court, upon which all the rest of the proceedings are ground­ed, and is thus: A. B. com­plains of C. D. in a plea of debt of ten shillings, and so as the case is. And as to this, these things are to be known.

First. No Plaint ought to be entred (except in case of Re­plevins) out of Court, but in full County, and sitting of the Court. And yet the course is otherwise, and (as it seems) good enough.

Secondly. The Sheriff or his County Clark, or any other, by either of their commandments, or in their names, may not en­ter any plaint in any mans name, unlesse the Plaintiff be present in Court, in person, or else by his Attorney or deputy, [Page 16] and yet this it seems is good e­nough, though otherwise en­tred, but for this cause, it may be removed, if it be set forth Remove. and moved in another Court.

Thirdly, Nor may any man enter a plaint in the name of a dead man, of purpose to get money of the Defendant.

Fourthly, Nor may any of the Officers of the Court enter or cause to be entred, any more plaints then the plaintiffe hath cause, and desireth against the defendant.

Fifthly, There must be but one plaint for one contract, tre­spasse, or cause.

Sixthly, The plaint that is for trespasse, may not be vi & armis: for then a prohibition Prohibi­tion. may be had to stay the suit, but leaving out these words, it may [Page 17] be brought there for a trespasse,

Seventhly, No plaint can be heard in this Court for charters touching Inheritance or Free­hold.

Eighthly, No plaint or suit can be entred here for debt, or damages to forty shillings or upwards, &c. unlesse it be upon a Justicies. But under forty shil­lings it may be for any action of debt, either upon an account made by the parties, or upon an especiallity, or for wages after a hire, or upon a lending, or up­on an arbitrement, or the like: and for a detinue, and for acti­ons of the case upon a delivery, or upon a warranty, or upon a Misfesans, or upon a Nonfe­sans, Nusans, or the like.

Ninthly, And upon a Reple­vin Replevin. for damage fesant, amearce­ment, [Page 18] rent, or the like: and up­on all actions of trespasse; for breaking of a house, taking a­way goods, or the like. And if the debt or damage be forty shillings, or upwards, the de­fendant may demurre to the Demur­rer. jurisdiction of the Court, or have a prohibition. And yet Prohibi­tion. it is a question whether these Courts may not hold plea so much now, as forty shillings was then, which is about six pound, but it is not safe to ad­venture. And it is held clear, That if the declaration be laid for, or above forty shillings, albeit the Jury find the da­mage under forty shillings, this will not help.

Tenthly, If the debt be a­bove forty shillings, as for ex­ample, twenty pound, the [Page 19] Plaintiff cannot divide this in­to twenty severall actions to make this Court hold plea of it. for in this case the defendant may wage his law with good conscience, or have a Prohi­bition.

Eleventhly, But if the debt be above forty shillings, and the plaintiff will acknowledge in his plaint the receipt of so much as to bring it within for­ty shillings, in this case perhaps the plaint may be good. This plaint must be continued from Court to Court, or else may be dismissed, and the Plaintiff will be forced to begin again.

Twelfthly, If the Sheriff or any of his officers shall procure others to enter plaints or suits in this Court against other men, they may be punished for [Page 20] it by a speciall Act of Parlia­ment.

Sect. IX. Of the Processe of the Court.

THe Processe of the Court Processe. is the precepts that issue out in the actions, and these are either originall, which are such as issue out before judge­ment; or judiciall, such as issue out after judgement. Those which we call originall, are the summons, and the attachment, and distresse; both which (up­on the matter are all one.) The venire facias, the Alias and Plu­res, and distringas or distresse.

The summons is a warrant Summons to an officer, to warn the defen­dant in the action to appear to it. And is after this form.

The Bailiff of the hun­dred of S. is commanded to summon C. D. that he be here at the next Court, to answer A. B. in a plea of debt, (or in a plea of trespasse, or in a plea of detinue, as the case is,) or more largely after this form.

R. S. Esquire, Sheriff of Gloue. the County aforesaid, to the Bailiff of the Hun­dred of W. greeting. For­asmuch as A. B. at my County Court held for the County aforesaid, [Page 22] complains against C. D. in a plea of debt of thir­ty shillings, (or in a plea of trespasse, as the cause is,) and hath found pledg­es to prosecute, &c. These are therefore to re­quire that you summon the said C. D. that he be here at the next Court; to answer the said A. B. in the foresaid Plea: and that you have there this warrant, and shew how you have executed it. Dated the eighth day of August, 1655.

Attachment is the second de­gree Attach­ment. of Proces, and issueth out where the defendant commeth not in upon the Summons; and this is to take the defendants goods, and keep them, to the end he may appear; and is made Briefely after this forme. It is commanded the Baylife of the hundred of S. That he attach C. D. by all his goods and chat­tels to the end that he may be at the next Court to answer A. B. in a plea of debt, &c. or more largely as before in the other.

And in this case, the Sheriffe may choose to take away the goods, or leave them with the defendant, (which he will,) and if the defendant appear not, by this at the day of the returne of the Attachment he shall forfeit them, but the property thereof [Page 24] by the taking is not out of him, till he hath made default, so that if he appear or be essoyned, the goods are not to be forfeit.

The distresse is the third de­gree Distresse. of Proces, or a third Pro­ces; and it is a warrant to the Bayliff to destrayne the defen­dant by his goods and chattels, to the end that he may be at the next Court to answer A. B. (as the cause is) or largely as be­fore. And the alias and pluries doth not differ from these but hath these words added. It is commanded the Bayliff, &c. as an alias (or as a pluries) the ve­nire facias is a precept to sum­mon a Iury to appear to try the case; and it is after this forme. It is commanded the Bayliff, &c. or

Sect. X. Of the proceedings from the time of the defendants being summoned, or at­tached, to the end of the Suit.

THe proceedings in these cases is much after the fashion of the proceedings in the higher Courts, as in these particulars that follow.

First, when the defendant is to come in, sometimes he may Essoyne. be excused by an Essoyne; for the defendant when he cannot appear at the time appointed by the Court; for reasonable cause, he shall have a further day, and his default shall be sa­ved, [Page 33] and as to this essoyne these things are to be known.

1. That the ordinary causes for which this is allowed are.

1. That either the defen­dant is in the service of the Lord Protector, or is beyond the sea, or is sick, or the water is so high that he cannot come, or the like.

2. He that casteth an essoyne ought to come at the begin­ning of the Court, when Pro­clamation is made.

3. If one be essoyned one Court the other may be essoyn­ed the next Court.

4. No essoyne is to be al­lowed by either partie without cause shewed, which may be without oath.

5. No essoyne is to be al­lowed [Page 34] in these cases following.

• 1. Where the partie himself is seen in Court.
• 2. Where the partie hath an attorney in the same plea pre­sent in Court.
• 3. Where the partie made default at the last Court before.
• 4. Where the partie doth come in by distresse.

Secondly, where the defen­dant Declara­tion. doth appear the Plaintiff must see his Declaration be filed, or the Plaintiff may be nonsuit otherwise, unlesse the Court give further day to him: also he must see to it that it be made perfect or the defendant Demur­rer. may demurre to it, and put the Plaintiff to make a new Decla­ration, and yet before the de­fendant have answered the Amend­ment. Plaintiff may by order of the [Page 35] Court have any thing amended that is amisse in the Declara­tion.

Thirdly, the defendant when Impar­lance. he appears and the Declaration is filed, shall of course have an Imparlance for one Court, (that is) upon his desire he shall have further day given him to an­swer till the next Court, and this by order of the Court, or agreement of the parties may be again continued to another Court.

Fourthly, continuances must Conti­nuances. be made of cases in this Court from Court to Court, as they are in the Courts at West­minster from terme to terme, to keep the suits in being.

Fifthly, the defendant after a perfect Declaration put in; must Pleading. give his answer or plead to it, [Page 36] and for this, these things are to be known.

1. He must plead in the time appointed by the rules of the Court, otherwise judgement will be given against him for his default, by nihil dicit 1. because he saith nothing.

2. His plea must be legall, full and perfect; or else it will be to the advantage of the Plaintiff, for a bad or insuffi­cient plea is in Law as no plea.

Sixthly, the ordinary pleas here to action of debt are as in the Courts at Westminster: (as the case is;) as for example if the suit be on a deed. It is not his deed; that it was made by threatning or imprisonment. That he tendred the mony at the day, and is still ready to pay [Page 37] it. A release or acquitance by deed, and such like.

Or if it be on a Contract without a deed, payment, or obligation made for the debt, an arbitrement, &c.

That he doth not owe the mony, and such like. And if the suit be against an executor, or administrator, the ordinary plea is, that he was never exe­cutor, or that he hath fully ad­ministred, or the like. Or if the suit be grounded on a deed, or on a Contract without a deed, that he was within age when he did make the deed or Con­tract, or if it be against a woman; that she was covert (1.) had a husband when she made the deed or Contract or such like.

If the suit be grounded on an arbitrement, that there was [Page 38] no arbitrement Legally made, or that he hath performed the award.

If it be on a Replevin for trespasse by damage fesant; that the beasts came in by the de­fault of the inclosure of the Plaintiff; or that he hath title of common there, or the like.

And if it be on a distresse for rent; That there is no rent be­hind, or the like.

If it be on an action of de­tinue the ordinary pleas are. That he doth not deteine the thing sued for, a release, or a guift to him by the Plaintiff of the thing sued for, or that he did tender the thing sued for before the action brought, or that he is ready to deliver the thing, and hath brought it in Court; or that the Plaintiff did [Page 39] deliver it to him as a pledge for twenty shillings, which he hath not paid; or that the thing sued for was delivered to him by the Plaintiff and another, and not by the Plaintiff alone. And such like.

Or if it be an Action of the Action of the case upon an assumpsit. Case upon an assumpsit, the or­dinary pleas are, that he did not so assume, or that he is not guilty, a concord performed, or the like.

Or if it be in an other Action of the Case, the ordinary plea is, not guilty: and if it be on a war­ranty, that he did not warrant, &c.

And if it be in an Action of Action of trespasse. trespasse, the ordinary plea is not guilty; also in this case an arbitrement, or concord with execution, tender of amends, [Page 40] before the action brought, may be pleaded.

And in all these actions, spe­ciall pleas may also be pleaded (as the case is.)

But if the defendant plead Frehold or forrein plea. his freeheld, or forrein plea not triable there; the Court can no further proceed, and if it doth, the other partie may have a writ of false judgement, to a­void the judgement when it is False judge­ment. given.

But in all these cases, the de­fendant may if he will, refuse to plead any such plea, and confesse the action; or let judgement go by, Non sum informatus, de­faults, by the saying of his attor­ney that he is not informed.

But upon these pleas, the Triall. Issue. Plaintiff in most cases, may take issue, and put it to a Jury, which [Page 41] is thereupon warned: whereby the Court of any of these Courts, Trialls are by Juries, to By Jury. appear to try it. And these ap­pearing, the parties are to have their Challenges, as in other Chal­lenge. Courts. Or by consent of par­ties, it seems it may be tryed by Jury in any case.

And upon some of these pleas, pleaded by the defendant, Wager of Law. where wager of Law doth lye, as upon an action of debt brought upon a contract by word without writing, or detinue, he may offer to wage his Law, and may have it for the triall, and cannot be put up­on another way of triall. And this is the proper and ordinary way of triall, appointed by Law in all actions in this Court. And where this is admitted, the [Page 42] Court doth appoint the defen­dant to do it at the next Court; and set down with how many hands, or other men witnesses, he shall wage his Law, which is taken by the Judges of the Court, who do examine the defendant and his witnesses, on oath: and the Plaintiff also, if they think fit.

Or the defendant (if he will) By wit­nesses. may deny the debt, where it is with out a deed, and put it on the Plaintiffs proof, and then he must prove it by witnesses at the next Court, if it be so or­dered; and if he do then make default herein, he is to be non­suit. So if the Plaintiff in person be in Court, (where the Jury Non suit. is ready to appear, or give their verdict) and renounce his suit or withdraw his action, & saith [Page 43] he will follow it no more; or when the parties have demur­red in judgement, and have a day given over, and at the day the Plaintiff do not appear, but make default, in these cases Nonsuit. the Plaintiff shall be nonsuit; and judgement shall be given against him for costs of suit. Which shall be levied in the same manner as money reco­vered against a defendant is le­vied.

And in all these cases, if the Judges where it is to be judged by them alone, or the Iudge & Iury (where there is a Iury) shall find for the Plaintiff, they must give judgement for the debt, or damage and costs of suit, as the Judge­ment. case is; and if they find for the avowant in a Replevin, they Costs. must give damage and costs of [Page 44] suit: or otherwise, if it go a­gainst the Plaintiff, or he be non-suit for not proceeding, judge­ment must go against him, for such costs of suit for vexation: So that as the Court shall ad­judge, if the defendant be con­demned by default or verdict, a levarie is to go forth to levie the debt or damage, and costs of suit; and so if costs be reco­vered against the Plaintiff, and hereupon execution shall be done accordingly by a Levari facias, or warrant appointed to leavie the mony. And upon this, the Sheriffs officers, or ser­vants appointed, are to levie so much of the goods of the Plaintiff or defendant, the which they are to take, prise, and sell, and therewith pay the party that doth recover his [Page 45] money, and the costs of suit, and give back the overplus. But nei­ther can the under officers, nor the Sheriff, nor the Court, de­liver over, or cause to be deli­vered over the goods di­strayned, to the party that is to have the money.

Sect. XI. Of a suit by Replevin, and the proceedings therein, from the beginning to the end of it.

A Replevin is where one What a Replevin is. man distraineth anothers goods or cattell: then the partie that is distrained, upon giving security to the Sheriff, or his de­pulie, that he will pursue the [Page 46] action, and return the beasts again, if the taking shall be ad­judged Lawfull; may have this by writ to the Sheriff, or the She­riff may do it ex officio: or if it be within a franchise, the She­riff may send his warrant to the Bayliff of the franchise; and hereby he shall have the goods or cattels restored again. As touching this, these things are to be known.

First, that he that brings this writ must have either a gene­rall Speciall property. or a speciall property in the thing; as of goods pledged, or the like; and this must be in him at the time of the taking, or o­therwise he cannot have, or not maintain the Replevin for them.

Secondly, if divers mens cattell be taken they may not [Page 47] joyn in a Replevin, but must have severall Replevins.

Thirdly, this is grantable in hundred Courts and Courts Barons also.

Fourthly, the Sheriff is bound to have four deputies in the County, to make these Reple­vins; and the Sheriff upon com­plaint of goods or cattels taken and wrongfully withheld, may send his warrant by word or writing (if it be out of a liberty) to whom he pleaseth to deliver them; and if it be in a franchise, he must first send to the Bayliff of the franchise, to do it, which if he will not do, the Sheriff himself at the last may do it.

Fifthly, this the Sheriff doth and may do, either ex officio by vertue of his office, and of his own authority; or by a writ sent [Page 48] to him out of another Court to give him command so to do.

Sixthly, the party that sueth it out (be it with or without a writ) must first before he can have it, or the distresses be deli­vered, enter his plaint in the Court, of the which to the end that deliverance may be made presently by a Replevin, before a Court day he may enter at any time out of Court for the taking of the things; and give a band of forty pound at the least to prosecute the suit, and make return of the goods, if return be awarded by the Court; and if the Sheriff do otherwise, the party grieved may have an action of the case against Action of the case. him, and recover his damage by it.

Seventhly, if the things distrayned, be put by him that did distrayn them, in a place where the Sheriff cannot come at them to make a Replevin, as a Castle, or the like; he may take the power of the County, and after demand, beat down the Castle to take them, and the owner of the goods shall reco­ver double for his losse, what ever it be. And if the goods be put in a Castle, or driven into another County, or other place where he cannot deliver them upon the Replevin, or Retorno Habendo; he may grant a pre­cept in the nature of a Wither­nam, to whom he will, to take Wither­nam. the parties own goods. Or if the Sheriff command the Bay­liff of the franchise to make de­liverance, and he return that [Page 50] he cannot come at them; the Sheriff at the next County Court may enquire of it by in­quest of office; and if he find it true, he may of his own autho­rity grant a precept in the na­ture of a Withernam to the Bay­liff to take the parties own goods. The which goods the Sheriff or Bayliff may either keep, or deliver to the Plaintiff to keep, at his choice. But the defendant is to pay for the keeping of them, before he have them again.

And if the Sheriff coming to make a Replevin, and the party that hath the distresse, clayme propriety in the goods for himself, or for himself and another, of his Ma­ster; the Sheriff cannot pro­ceed till this question be [Page 51] decided by a Proprietate Pro­banda. Proprie­tate pro­banda.

Which is a writ lying where the Sheriff is coming to make a Replevin by writ, or without, before or after Gager de delive­rance; and the party that hath the goods, and distrayneth them, claymeth them for him­self, or his Master for whom he destrayned, as their own; then the Sheriff can proceed no fur­ther in the Replevin, untill the Playntiff have sued out this writ, which if the writ were had out of the upper Bench, or common pleas, may be had thence; else out of the Chance­ry; and thereby the Sheriff may try the property, and if he have no property that pretended it, then the Sheriff may go on in the Replevin.

If he had, he must surcease; for in all cases of Replevin, the Plaintiff ought to have the ge­nerall or speciall property of the goods, at the time of the ta­king. For a Replevin lyeth up­on either property. It is there­fore a good plea in a Replevin, that the property is to the Plaintiff and a stranger: but this finding of the Sheriff by this writ, is but an inquest of office; and therefore if it be thereby found against the Plaintiff, yet may he have a writ of Reple­vin to the Sheriff; and if he re­tain the clayme of property, &c. yet shall it proceed in the Court of common pleas, where the property shall be put in is­sue and finally tried.

But a man cannot clayme property by his Bayliff or ser­vant; [Page 53] because if it be found a­gainst him, he shall be fined that so doth; which the Lord cannot be, unlesse he clayme himself.

Eighthly, this suit, after it is once brought into the Court, and the defendant, which is the party that took the distresse, doth appear, is to be deter­mined in this Court. But ac­cording to the plea ministred by that party, it becomes reall or personall.

For where there is property claymed, it is personall. But if the defendant justifie the ta­king, as in his freehold, or for services, or rent behind, or the defendant avow for damage fe­sant, and the Playntiff justifie by reason of common of pa­sture, then it is reall. And then [Page 54] there can be no further pro­ceeding there except it be up­on a justicies, but the case must be removed by a writ of recor­dare, which must be read and allowed in the Court; That the Plaintiff in the Replevin may have notice of the Court wherein it is removed; and of the day, that he do then appear, and declare there against the taker, or else he will have a re­turno habendo.

And then is the defendant to make his Avowrie, and set forth by what right, or for what cause, he took the cattels.

Tenthly, for an Avowrie is Avowrie. where one doth estrayne an­other for rent, or other cause, and the party estrayned sueth a Replevin, against the taker, then he must justifie and avow [Page 55] in his plea, the lawfull taking of them: and shew why he took them, whether in his own right, or a servant, or Bayliff to an­other. And upon this, the Plain­tiff doth usually joyne issue; and so they go to tryall commonly by a Jury.

Eleventhly, if after the Re­plevin brought, the Plaintiff (whose goods be taken) do make default, or be non suited, before declaration, or the like; or judgement be given against him; he that distrayned the beasts shall have them deliver­ed to him again by the writ of Returno habendo. Returno habendo.

And this writ must have this clause inferted in it. That the Sheriff shall not deliver the goods without writ, wherein mention shall be made of the judgement.

And hereupon the Plaintiff if he will may have a judiciall writ to the Sheriff, to deliver the beasts to him.

Twelfthly, where a plaint is Second delive­rance. removed out of the County Court, or Court Baron by Pone or Recordare, into the common Bench, [...] after the Plaintiff in the Replevin is nonsuited be­fore any Avowrie made; not­withstanding this nonsuit, the party that distrayned, may have again the same distresse, and no other by this writ; which is on­ly to revive the first suit, and the defendant cannot have a re­caption in this case, for a dou­ble distresse: And this is called second deliverance; after which had, and tryall thereupon, or that the Plaintiff be again non­suited before declaration: Re­turn [Page 57] Irreprevisable, shall be a­warded Return irreprevi­sable. to the avowant; & then he may make his attorney to the intent to ground a writ to enquire of damages: or he may hold the beasts as a distresse, till he be satisfied, and if any retur­no habendo go forth before this writ, this is a supersedeas to it; and the Sheriff may not meddle upon it.

1. If after one return award­ed, a return shall be another time awarded, there shall be no more Replevins granted. And if upon this default the second time, or otherwise the defen­dant be adjudged to have a new return, the distresse shall remain Return ir­replegia­ble. Irreplegiable.

Where one hath sued a Re­plevin, Gager de delive­rance. and yet hath not the goods delivered, and the other [Page 58] avoweth; now he may shew this in pleading that the defen­dant is still possessed of the goods, & pray that he may put in pledges for the deliverance; which when they come to is­sue, or demurrer shall be grant­ed him, or after avowrie, if the defendant do not clayme pro­priety in them: and then a writ shall go to the Sheriff to deliver them; but where the avowant doth clay me propriety in them, this is not grantable.

It is a writ lying where a man is distrayned for any services: Recap­tion. and having that suit, he is di­strayned again for the same cause though the distress be for service due, after the first di­stresse, yet it lyeth not till the first suit be determined.

Sect. XII. Of costs of suits recoverable in this Court.

AS to the costs of suits recoverable in this Court. These things are to be known.

First, in all suits whe­ther judgement be given for Plaintiff or defendant, such reasonable costs of suit are to be given as the Court shall set down.

Secondly, where the Plaintiff doth not pro­ceed, [Page 60] or the cause doth go against him upon the triall, the Court must give the defendant reaso­nable costs for the unjust vexation.

Thirdly, such remedy and execution shall be made for recovering of these costs, as the Plain­tiff hath for recovering of the costs he doth re­cover in that Court, a­gainst the defendant.

Sect. XIII. Of Amercements in this Court, and the streats thereof.

ANd to this, these things are to be known.

1. The Court may a­merce any man, for any contempt or disturbance of the Court, made in the presence of the Court; for in what case a man may be fined in a Leet, he may be amerced here, and this it seems need not be [Page 62] affered, as all others, but Affere­ment. it is safe to do it.

And when any officer doth commit any default, or neglect in the execu­tion of his office; and when the Plaintiff is non-suit; Quia non est prosecutus. Because he hath not pro­secuted, either at the first or after, when the Jury is ready to give verdict; or the Court give judge­ment, or pro falso clamore. And when judgement is given against the defen­dant he may be amerced. And when any Bencher [Page 63] Iuror, Plaintiff or defen­dant doth make default, he may be amerced: so also every man for his de­fault of appearance after summons may be amer­ced. But all these amer­cements upon officers for their miscarriage must be Affere­ment. affered by the Benchers; the rest by them or some others otherwise they may not be extreated, & they may be levied by Estreates. distresse, and putting in pound; not by sale with­out a speciall custome in it; and being levied shall [Page 64] go to the use of the She­riff. And the Sheriff must see that he leavie none of these amercements, untill they be first allowed by two Iustices of the Peace.

Sect. XIV. Of removing of suits out of this Court.

SUits may be removed out of this into a higher Court. And this is to be done either by a recordare, or by a pone. And Recor­dare. therefore the recordare is said to be a writ out of the upper Bench, or common pleas, di­rected to the Sheriff, com­manding [Page 65] him to send a plaint that is before him without writ in his County Court into that Court, from whence the recor­dare is sent, to the end that the case may be there determined. And this the Sheriff must certi­fie under his seal, and the seal of four of the Suitors of the same Court; and he is to summon the other party to be in that Court whether the plaint is to be sent by a day; and a pone doth Pone. nothing differ from this, but that that is to remove such suits as are there before the Sheriff by writ and not by plaint, and as to this these things are to be known. 1. That if these be sued out by the Plaintiff in the County Court, it may be had without shewing any cause at all, if it be had by the defen­dants [Page 66] suit, he must shew cause.

As first being to remove a plea in a replevin by plaint, to shew that the defendant avow­eth for damage fesant, and the Plaintiff doth justifie for com­mon of pasture, which is a plea touching freehold, and there­fore should not be without writ. Or that he before whom the writ depends is a favorer of him that is of the other side.

Secondly, if any officer of the Court proceed after the remo­veall, he may be punished for it in the Court from whence the writ to remove it came, for the suit in Law is now at an end in the inferior Court.

Thirdly, and after it is once sent away, it can never be sent back again, but must be tried in the Court into which it is sent.

Fourthly, a suit is sometimes removed out of this Court into False judge­ment. a higher Court by a writ of false judgement.

And this writ is defined to be where an erronious judgement is given in any inferior Court, that is not a Court of record; as County, Hundred, or Court Ba­ron, then the partie grieved by the judgement may have this writ, and remove the whole Proces of the suit into the com­mon pleas; and there it shall be examined, and if it be found, the judgement shall be rever­sed, and the Suitors or Judges Jurors amerced. of the Court that gave the judgement, amerced.

Sect. XV. Of the Povver and duty of the officers of the Court.

AS touching the power and duty of the officers and those that act under this Court, these things are to be known.

First, the Sheriff may, if he will, appoint speciall Bailiffs that is, others besides the com­mon Bailiffs to execute the pro­cesse of the Court.

Secondly, some say a war­rant from the Court by word may be good in these cases, but it is not safe to trust to such a warrant, but to have it in writing.

Thirdly, the officers that [Page 69] have any precept to execute, must do it with all care, and when done or not done, give an account and make a return of it, especially if they take goods in execution; otherwise it is dangerous; for perhaps by the not return, the Act of the of­ficer may become unlawfull.

Fourthly, in taking of goods they must be reasonable.

Fiftly, they may enter into a close, or into any house of any other mans (the door being o­pen) to take the goods of any man there upon any pre­cept.

Sixthly, they may take the goods of any man in any place within the County, in another mans house or ground as well as in his own.

Seventhly, they are to take [Page 70] upon execution so much of the goods as will satisfie the execu­tion, and bring them into the next Court where they must be prised.

Eighthly, they are not to proceed in any case after it is re­moved into another Court.

Ninthly, if the Sheriff or any of his officers shall procure o­thers to commence suits against any person, and shall cause them to resort to this Court. The par­ty attached upon any such suit may replieve his distresse so ta­ken, and remove the suit before Remove. the Justices, &c. Before whom if the Sheriff be convicted of such procurement, he shall be amerced grievously to the Lord Protector, and shall answer to Amerce­ment. the partie grieved treble da­mages.

Tenthly, the Sheriff (his Shire Clerk, or deputies) shall Estreates. make no estreats to leavy the said Sheriffs amercements (or Shire amercements untill two Justices of the peace (one of the Quorum) have had the over­sight of their Books, and that the estreats be indented be­tween the Justices of the Peace and the Sheriff.

Eleventhly, the Officers, that leavie these estreats, ought to be sworn before the Iustices that they will leavie no more then is upon the estreats.

Sect. XVI. Of the Fees of this Court.

THe Fees of this Court are The Fees. such as time out of mind have been used to be paid and received i [...] the Court. And these happily are in some places more, in some places lesse. But in some of these Courts where they are reasonable, they are as followeth.

• Fees due to the Court.

  For every judgement	iiijd
  [Page 73]For every Attachment fugitive	ijs
  For a judgement on a ju­sticies	is

• Fees due to the Stevvard.

  For entring of an Action and warrant for the summons	iiijd
  For an ordinary Attach­ment	vjd
  For an ordinary distrin­gas	vjd
  For filing of a Declara­tion	iiijd
  For filing a Declaration on a Replevin	xijd
  For an aparance	iiijd
  [Page 74]For every plea	iiijd
  For every rule or order of Court	iiijd
  For a venirefacias	ijs
  For a warrant for witnes­ses for every name	vjd
  For every witnesse sworn	ijd
  for every judgement	iiijd
  for every levari facias or execution	xijd
  for a copy of the Decla­ration	iiijd
  for allowance of a justi­cies	ijs vjd
  for every warrant upon it	ijs vid
  for every Attachment fu­gitive [Page 75] if it be against one onely	ijs
  If more then one at one mans suit, then for the first defendant	ijs
  And for all the rest of the defendants xijd a piece.
  for allowance of a recor­dare, &c.	ijs vjd
  for retorning of it	ijs
  for a retraxit before judgement	iiijd
  for search for any old Action	iiijd

• Fees due to the Attorneys.

  For a retayning fee by the Plaintiff	xijd
  [Page 76]for drawing of a Declara­tion	xiiijd
  for appearing for the de­fendant	xijd
  The ordinary fee upon a Iusticies	iijs 4d
  The fee upon a replevin	iijs 4d

• Fees due to the Bayliff.

  For every ordinary summons	vjd
  for executing an ordinary Attachment	vjd
  for executing an ordina­ry distringas	vjd
  for summons upon a ju­sticies	ijs vjd
  [Page 77]for an Attachment upon a justicies	ijs vjd
  for executing of a di­stringas upon a justicies	ij• vjd
  for every judgement	iiijd
  for executing of an At­tachment fugitive	ijs
  for doing execution up­on the levari facias,	xijd
  for the warrant, and jd in the shilling for all the mony that is recovered and levied.
  for summoning a Iury to to try a cause	ijs vjd
  To every witnesse sworn [Page 78] for his charges	xijd
  To a Iury that give a ver­dict, or are sworn in a cause for their atten­dance.	iiijs.

Sect. XVII. Certain Rules necessary for a County Court.

ANd now having shewed what the Law is as touch­ing these Courts, if the Justices of the Peace, Lawyers, and o­thers of the most sufficient Free­holders of the County, shall out of their zeal for the good of their Country meet together and agree upon a Course for the better regulating of this Court, and usually sit in Court to see [Page 79] the Laws therein observed, they shall do a good work that may bring much ease to their Countries. And herein we do (under correction) conceive it may much help hereunto to set down and observe some such like rules as these.

First; that such a number of the most sufficient Freeholders do appear every Court, or be content to pay such an Amer­cement.

Secondly, that they set down what number of attorneys; and who shall practice in the Court.

Thirdly, that these attor­neys, and all the officers that do practice, shall agree to, and ob­serve the rules for practice set down, and take no advantage by error; nor remove of suits or [Page 80] otherwise without consent of the Court for any thing done according to these rules: and that they be content with the Fees set down.

Fourthly, that they agree up­on a Method of short Declara­tions, pleading the Generall is­sues. Amendment of Declara­tions mistaken before answer, and entring continuances after­wards, when omitted by the Clerk of the Court and the like, to make the suits there depend­ing short and cheap. These things will help much. And thus wee have done with the County Court, and now come to the Hundred Court.

Sect. I. Of the nature of this Court. the time and place for the keeping of it.

THis Hundred Court is no Court of Record, but a kind of Court Barron, and of the same nature with the Coun­ty Court; out of which it was first derived, and set up, for the ease of the people; and there­fore the Course and rules of proceeding in, and all the mat­ters relating to this Court, are much like to those in, and re­lating to that Court. And for that these things are to be known.

First, that this Court may be kept in any place within the Hundred, and it must be kept in some place within the Hun­dred.

Secondly, it may be, and is usually kept once every three weeks, upon a day of the week certain; which may (being be­gun) be adjurned to be ended on another day of the week. And perhaps this day may be changed, or if the Court be kept on another day it may be good enough. But the safe way is to keep it as time out of mind it hath been kept and not to al­ter it.

Sect. II. Of the Iudges of the Court.

THe Iudges of this Court are the Freeholders, called Free-suitors, which we con­ceive to be all the Freeholders of Land within, and dwelling within the Hundred. But in some Hundreds some certain Freeholders of the Hundred on­ly are the Iudges; & the service seems to be appropriate to their Land only: But we conceive that this doth not exempt the rest of the Freeholders of the Hundred, but that they may be charged. But it is safest to keep the Court by those that are bound to the service by their Land, or to have two of them [Page 85] present and if any of these Free-suitors make default they may be amerced, as in the County Court. And the amercement af­feared and extreated, as there; but that in this case there is nothing to be done with, or by the Iustices of the Peace.

Sect. III. Of the povver and proceed­ings in this Court in Ge­nerall to the end of the suit.

THe power and proceeding of this Court in Generall is much like to the power and proceedings of the County Court, save only in the case of a Iusticies: for no Iusticies doth lye to the Iudges of this Court. And that this is for the hundred [Page 87] only, and that is for the whole County. And that in most of these Courts there is no distress used to bring the party to ap­pear but a summons and attach­ment only. And as to amerce­ments Amerce­ments and Estreats. and estreats thereof the rules of the one are all agreable to the other, save only that the Iustices of the Peace have nothing to do with the estreats of these amercements. And these amercements go to the Lord of the Leet, not to the Steward.

For costs of suit both Courts agree in all things. And for re­moving of suits the Courts are much alike: Save only that to remove a suit of this Court there is another writ called an Accedas ad Curiam; which is a Accedas ad cu­riam. writ out of the upper Bench, [Page 88] or common pleas, directed to the Sheriff commanding him to go to such a Court of some Lord or franchise; as County Court, or court Barron, where a Plaint is sued for taking of Beasts, as a distresse or some false judgement is supposed to be given in any suit; which hath been in such a Court, which is not a Court of record, and that he do there make record of the same suit in the presence of the Suitors of the same Court, and four Knights of the County; and certifie it into the Lord Protectors Court, at the day limited in the writ; and this cannot be had without shew­ing of some cause; and the cau­ses to remove these suits are when a Freehold is in question there, or some forrain plea [Page 89] is pleaded not triable there. Or the like.

And for Officers power and duty in these Courts it is alto­gether the same with the Of­ficers of the County Court; save only that which doth concern the entring of suits in other mens names, and without their privity.

And also save only in what doth referre to their relation to the Iustices of the Peace of the County, as to their estreats. See for these things Chap. 1. Sect. 12. 13. 14. 15. and for the Fees of this Court the same is to be said as in the former Court; their Fees differ, and are by Law what they have been time out of mind. But some of these Courts wherein the fees are rea­sonable are as followeth.

• [Page 90]The Stevvards fees.

  For entring every Action	2d
  Every order entred	2d
  Entring Declaration	2d
  If large then more.
  Entring every plea or an­swer	2d
  Every Essoyne	2d
  Every Process	4d
  Every continuance	2d
  Every nonsuit and de­traxit	4d
  Entring the Judgement	2d
  Satisfaction acknowled­ged	2d
  [Page 91]Every wager of Law and entry	2d
  Warrants for witnesses and summoning Iuries	4d
  for removing and certi­fying a cause	6s 8d

• The Baylifs fees.

  for Summons & entrance	7d
  for executing every Pro­cess	4d
  Upon Iudgement for e­very shilling	1d
  for warning of the Iury	1s
  for warning of witnesses on a warrant	4d
  [Page 92]for every oath	2d

• The Attorneys fees.

  for every cause at hearing	1s
  for the Declaration	4d
  for every Court the cause dependeth after he is re­tayned	4d

• Other Officers fees.

  for the execution of eve­ry Process

  4d

Sect. I. Of the beginning and use of this Court.

THis Court was first institu­ted for the ease of the Te­nants The na­ture of it. of the Mannor, and end­ing of suits there under forty shillings. That it might be done at home, as it were at their own doors. And it is much of the nature of the two former Courts.

Sect. II. Of the time and place for the keeping of this Court and the Iudges therein.

THe Iudges here are the Freeholders, that is, such Tenants as have ancient estates of Inheritance in any Lands held of the Mannor; And of these there must be two at the least. And therefore when once the Mannor is gone, this Court is gone also; or if the Mannor continue, and there be but one Freeholder, the Court is gone; nor will new Freeholders (as it seems) made with in the time of memory serve; and therefore coppyholders or leaseholders. [Page 96] That by the Inheritance of the Lands, nor of any that buy of the Lord a part of his demesnes, these will not be Iudges of the Court.

The place of keeping of these Courts must be somewhere within the Mannor. And it may not be kept without the Man­nor, if it be, all that is done at the Court is void; and Coram non judice.

And yet perhaps where a man hath two or three Mannors together; and time out of mind the Court hath been kept in one Mannor for all the rest of the Mannors, there happily it may be good for all. And the time of keeping of this court is once e­very three weeks & not oftener, but more seldome as the Lord of the Mannor shall please.

Sect. III. Of the Povver and proceed­ings in this Court.

THe power of this Court, where it doth continue, is much as the power of the hun­dred Court: and the Process, it holdeth plea: under forty shil­lings also much like unto it.

And as for costs of the suit, the power of the Officers, amer­cements, tryall, and removall of suits, the course in this Court is much like to the course of the Hundred Courts; save only that here no Tryals are by Iury, but all by wager of Law and proof of witnesses.

For all this therefore see [Page 98] Chapt. 1. Sect. 12. 13. 14. 15. &c. And for the fees of this Court the same is to be said as in the former Court; their fees differ, and are by Law what they have been time out of mind: but some of these Courts wherein the fees are reasonable are as the fees are in the Hun­dred Court.