RULES AND ORDERS FOR THE COURT Of Common PLEAS At Westminster, Made and published by the Judges of the said Court, in the Term of St. Michael, in the year One thousand six hundred fifty foure.

LONDON, Printed for Richard Marriot, and are to be sold at his shop in St. Dunstans Church­yard Fleetstreet, 1654.

RULES and ORDERS FOR THE COMMON BENCH, Of the Terme of St. Mi­chael, In the yeare 1654.

1. FOr the reducing of At­tornies, and Officers, to their due attendance.

2. For the reformation of abuses of Sheriffs, and Bai­liffs.

3. For discoverie, and pu­nishment of abuses in general.

4. For the constant pre­servation of ORDER in the Court.

5. For settling a constant course of practice, pleadings, and proceedings, especially where there hath been variety of opinion, or practice.

Concerning Attornies and Officers.

THat all Officers, and At­tornies of the Court, be ad­mitted of some Innes of Court, or Chancerie, by the beginning of Hillarie terme Next, or

RULES and ORDERS FOR THE COMMON BENCH, To begin from the [...] day of [...] In the year 1654.

1. FOr the reducing of At­tornies, and Officers, to their due attendance.

2. For the reformation of abuses of Sheriffs, and Bai­liffs.

3. For discoverie, and pu­nishment of abuses in general.

4. For the constant pre­servation of ORDER in the Court.

5. For settling a constant course of practice, pleadings, and proceedings, especially where there hath been variety of opinion, or practice.

Concerning Attornies and Officers.

THat all Officers, and At­tornies of the Court, be ad­mitted of some Innes of Court, or Chancerie, by the beginning of Hillarie terme Next, or [Page 3]in the same Terme wherein they are ad­mitted Officers or Attornies; and bee in Commons one week in every Terme, and take Chambers there, or in case that cannot be conveniently, yet to take chambers, or dwellings in some conveni­ent place, and leave notice with the But­ler where their chambers or habitations are; under pain of being put out of the Roll of Attornies.

2. That all Officers, and Attornies of this Court, appear in person in this Court, upon, or before the fourteenth day of Michaelmas Terme, and upon or before the seventh day of every other Terme, upon pain of ten shillings for the first default, twenty shillings for the se­cond default, and putting out of the Roll for the third default. The appear­ance to be entered with the Clerk of the warrants, and the defaulters to be deli­vered to the Court upon oath (if requi­red) within three days after the time re­quired for appearance.

3. That every Sheriff have his De­puty in Court to returne and receive Writs, and that each Deputy yearly be­fore Hillarie Terme have his name and [Page 4]the place of his residence in Londo or Westminster, set & continued up in tables in the office of Clerk of the warrants.

4. That the Clerks of Assize their Deputies or Assistants do personally ap­pear with their Posteas on the first day of Easter, and Michaelmas Terme; and the Deputy Sheriffs, and all other Offi­cers of the Court do personally appear by the Essoyn day of every second re­turn of every Term; And continue there during the residue of the Term without some just cause to the contrary allowed by the Court.

5. That for the future Common So­licitors be not admitted to practice in this Court unlesse they are admitted At­tornies of either Bench; provided that it extend not to the managing of evidence at a tryal, nor to Private Sollicitors, or servants of Corporations, or other per­sons in the cases of their Masters.

6. That none be admitted an Attorny of this Court for the time to come, un­less he hath practised as a Common Sol­licitor in this Court by the space of five years now last past; or hath served, or shall have served by the space of five [Page 5]years as a Clerk to some Judge, Serge­ant at Law, practising Councellour, At­torny, Clark or Officer of one of the Courts at Westminster, unlesse his Master dye or give over his practice, and be also upon examination found of good a­bility and honesty for such employ­ment; and that sufficient proof (to be put into writing) be made of such service to the Prothonotary upon a desire of Ad­mittance, and filed with the Clerk of the warrants without Fee.

7. That no person practise in ano­thers name, nor that any Attorny know­ingly permit another to practise in his name, upon pain of being put out of the Roll, excepting in warrants of Attorny for common recoverys.

8. That Attornies dismissed by one Court from their practice for misdemea­nour, be not (after certificate) admitted to practise in another Court, It being contrary to the intent of the Law.

9. That no under Sheriff or Bayliff of Sheriffs or Liberties be admitted du­ring such their employment to practise as Attornies, under pain of expulsion from the employment of an Attorney, and not to be readmitted.

10. That such Attornies as have not been attending their imployment in this Court by the space of one year last past, unlesse hindered by sicknesse, bee not allowed their priviledge of Attornies.

11. That for the prevention of mainte­nance and broccage, no Attorney bee Lessee in an ejectment, nor bayle for a defendant in this Court in any A­ction.

Concerning Sheriffs and Bay­liffs.

THat for the prevention and re­medy of delays & abuses in She­riffs, under Sheriffs, Bayliffs of liberties and their Deputies, and other Bayliffs of Sheriffs &c. in execu­tion of processe and writs, that if it shall appear that any such Officer shall wilfully delay the execution or return of any Process or Execution, or shall take or require any undue Fees for the same, or shall give notice to the defendant, thereby to fru­strate [Page 7]the Execution of any Pro­cesse or Writ, or having leavied mo­ney, shall detaine it in their hands af­ter the time of the returne of their Writs, besides the ordinary course of Amerciaments (the contempt or mis­demeanour appearing) an Attachment, Informarion, Commitment, or Fine to be, as the case requireth. And this as well in the case of a late Sheriffe, or person before mentioned, as of them at present in Office.

And whereas Sheriffs have taken immoderate and excessive Fees for Ex­ecution of Writs of Possession, or re­stitution of possession, contrary to Law; It is declared that such immoderate Fees ought not to be taken; and in case such shall be taken, the Court to proceed to punish the same according to law, upon complaint thereof made.

That to reforme abuses by blank Warrants granted by Sheriffs, where­by persons are arrested, and driven to extorted Compositions for their liber­ties without processe of Law; that [Page 8]no Warrants bee granted out to any Officer to arrest or attach any per­son before a Writ first come to the She­riffe.

Concerning the Reformation and punishment of abuses in generall.

ORdered, That a Jury of able and credible Officers, Clerks, and Atturneys, once in three yeeres be impannelled, and sworne to enquire,

1. Of the points usually inquirable by the Writ (viz.) falsities, contempts, misprisions and offences.

2. Of such who have been admit­ted Attourneys or Clerks, and are no­toriously unfit, their names to be pre­sented to the Court, and they to be [Page 9]punished or removed, as the case shall require.

Of new or exacted Fees, and of those that have taken them, under whatsoe­ver pretence, and to prepare and present a table of the due and just Fees, that the same may bee fixed and continue in every office; and likewise for the Fleet.

And that some persons be Injoyned and sworn to give evidence (videlicet) some Clerks of the Court and some At­tornies in every County, not excluding others.

Concerning the better preser­vation of Order among the Officers and Clerks, and observation of breach of Orders and Misdemea­nours.

THat the Court do once eve­ry year in Michaelmas Terme nominate twelve or more able and credible practisers in the Court to continue for the year ensuing, for these purposes hereafter limited.

That they or any six of them Exa­mine such persons as shall desire to be admitted Attornies, and appoint con­venient times and places for the same: and in order thereunto, that such persons as shall desire to be admitted Attornies, [Page 11]first attend the prothonotary with his proof of service, then to repair to the per­sons appointed to examine Attornies, and being approved, to be presented to the Court with the assignation of his appro­bation, and then to bee sworn in open court, unlesse some just exception be a­gainst him.

That they give information to the Court from time to time, of Breaches of Orders, and miscarriages of Officers, Attornies, and Clerks.

That a settled course of pra­ctice and proceedings bee settled, especially in those cases where there hath [Page 12]been uncertainty and that the inconveniences in pro­cesse, proceedings, and plea­dings may bee regulated unto a due course. In Or­der whereunto these seve­ral things are Ordered and directed according to the method of Proceedings.

1. Concerning the Entring of Records and the persons by whom.

THat no Rolls be delivered to be entered, but only to Clerks, or such Atturnies as have entred for the space of four years last past, for themselves.

That a table be set up of the Names of the Officers and Clerks that are to be admitted unto the Rolls of the Trea­sury: and that such and no others be ad­mitted thereunto, and that they may resort there as well for their Occasions, as for their Learning & Instruction, during the Term, and also twice in every week from a month after the Terme, and that every such Clerk duly attend as well the prothonotaries Office in the Terme time as for the Entring of Judgements up­on Summons given by the prthonoters respectively.

For the prevention of the un­undue issuig of Judicial writs, and falsifying of Re­cords. It is Ordered,

That all Executions, and all other Writs Issuing out of the prothonota­ries [Page 14]offices be duly signed by the re­spective prothonotaries before the same be sealed, and that no Exemplification of any common Recovery or other Re­cord which ought to be examined and signed by the prothonotary, be sealed before the same have been signed by the Prothonotary. Nor that any exemplifi­cation (excepting exemplifications of Fines and common Recoveries of the present or next precedent Term) be seal­ed before they be first signed and exa­mined by the Clerk of the Treasury.

And because the intermedling and dealing of Clerks in more then one pro­thonotaries Office at one time, hath been an occasion of disorder and uncertainty in proceedings; It is likewise Ordered, that every prothonotaries Clerk do ap­ply himself from henceforth to one pro­thonotaries office only, and do give his attendance and make his Entries in that prothonotaries Office.

2. Concerning Rolls and Re­cords, and their Entries & Bringing in.

That the whole proceeding of any Cause after Appearance be carried on in the Office of that prothonotary where it was first entered or declaration delivered.

That no Rolls be carried into the Country, under pain that the offender be excluded from Entring any more Rolls afterwards as a Clerk.

That the Common Rolls of every Term, except Easter, be brought in to the prothonotary fairly entred, & docketted at least ten days before the Essoigne day of the succeeding Terme, under pain of ten shillings for every Roll wanting. And that no Rolls be delivered to such person after any such offence the se­cond [Page 16]time, without special Or­der.

That the respective Prothonotaries before the third day of the then next Terme, do give in the Names of the Defaulters and Defaults unto the Court in writing.

That the Rolls brought into the Pro­thonotary be delivered over to the Clerk of the Warrants the day before the Es­soigne day of the ensuing Terme, toge­ther with a Note of the Rolls that are wanting, the same Note to bee sub­scribed by the Clerk of the War­rants, and redelivered to the Protho­notary.

That the Clerk of the Warrants within five dayes after Receipt of the Rolls from the Prothonotary, to de­liver over the Common Rolls to the Clerk of the Essoignes, taking the like Note from the Clerk of the Essoygnes of the Rolls want­ing.

[...]hat the Clerk of the Essoignes bind up the Rolls; viz. the first part before the appearance day of the second returne, the second part before the Es­soigne [Page 17]day of the third Return, the third part before the Essoign day of the next Terme.

That the Rolls of Easter Terme be brought to the Prothonotary on or be­fore the first day of Trinity Terme, De­livered to the Clerk of the Warrants within six days, to the Clerk of the Es­soign within five days after, to be bound up before the Essoigne day of Michael­mas Terme, each party subscribing the like Notes, and the penalties the same as before.

Concerning Original Suits and processe, where laid.

That Actions upon the case, trespasse, for goods, assault or Imprisonment ari­sing in any English County bee, laid in [Page 18]their proper Counties, unlesse they arise where Justices of Nisi prius seldome come. And because trespasse, or trover, for goods, Battery, Imprisonment, and slander must needs bee notorious in what County they arise; the Attorney knowingly laying them out of the pro­per County (unlesse in the Cases before expressed, or for such other causes as shall bee allowed by a Judge of the Court, and duly made appear to be true) be severely punished.

That although the declaration be de­livered seven days before the last day of the next precedent Terme, or after, yet before plea upon Oath made, the Visne may be changed upon motion, in the said transitory actions, the next Terme after: And the Defendant to plead to the new Action as he should have done in the other, without delay.

That the Visne may be changed, (up­on Oath) as before, though the Defen­dant come in by Exigent.

Concerning Processe, and ser­ving thereof.

That according to the provision of the statute of the one and thirtith year of Queen Elizabeth, All Attornies that sue out processe of Exigent be carefull that writs of Proclamation be delivered, and the Sheriff do take care duly to ex­ecute the same.

That according to the statute of the twenty third year of Henry the sixth, a prisoner taken upon a Capias in process, be not discharged till hee hath given bond to appear, unless the plaintiff or his Attorny shall consent to take an appear­ance without Baile. And in such case the warrant of Attorny to appear, to be subscribed or accepted by the Defen­dants Attorny, & such warrant not to be revoked, and an Attachment to be grant­ed [Page 20]against the Bayliff offending herein, or against the Attorney refusing to ap­pear or procure an appearance, having so Subscribed or Accepted.

And forasmuch as divers Sheriffs, Bayliffs of Liberties, and their Bayliffs respectively have of late time contrary to law, and against former Orders of this Court, discharged persons taken up­on Outlaries without Supersedias; It is hereby Declared, that such dealing is an abuse; and that all such who have or shall discharge such persons without Supersedias, shall be severely punished. And that no Sheriff, under-Sheriff, their Deputies or Bayliffs, may from hence­forth discharge or set at Liberty any per­son or persons arrested upon any Capias utlagat untill he receive a Supersedias ac­cording to Law from the Officer or Offi­cers thereunto appointed.

Concerning a Habeas Cor­pus to Sheriffs and Goa­lers.

That a Habeas Corpus cum Causa ad faciendum & recipiendum, directed to any Sheriff (other then London and Middle­sex) not to be returneable immediat è, or in the vacation time, but at a day certain in Court in the Terme.

That such Habeas Corpus to the Sher­riff of London or Middlesex may bee granted in Terme or vacation time re­turnable Immediatè.

That in case of Habeas Corpus return­able immediatè, the Sheriff ought to make his return the same day that the writ is delivered, and to bring the Body imedi­ately, as is required by the writ, without permitting him to wander abroad by [Page 22]colour or pretence thereof.

That where a writ of Habeas Corpus is directed to a Sheriff, Warden of the Fleet, Marshal or Goaler, the prisoner is to be brought in custody according to the writ at the day limited, without be­ing permitted to wander abroad in the mean time, upon pretence of such writ.

That a Habeas Corpus ad responden­dum may be granted to the Warden of the Fleet, or to the keeper of an inferour prison of a liberty or franchize, where a Capias is returned in Court, Non est inventus; such writ to recite shortly the Capias, and to be returnable at a day certain in Court, and to be a good cause of Deteiner, as well as where a Capias ad respondendum comes to a Sheriff.

That a Habeas Corpus ad satisfaci­endum may be Granted to the Warden of the Fleet, or to such inferiour Goaler re­turnable in Court at a day certain, and the Number Roll of the Judgment to be endorsed upon the writ by the Attor­ny who sues it out; and such writs to be a Cause of deteiner.

That if upon a Habeas Corpus the prisoner be returned charged with pro­cesse [Page 23]out of the upper Bench or Exche­quer, and out of the Common Pleas, the Prisoner may be committed with those Causes.

That if upon a Habeas Corpus cum Causa the prisoner be returned charged with a processe out of the Common Bench, though returnable at a day to come, the prisoner may bee committed with his Cause.

That if upon a Habeas Corpus, or Ce­pi Corpus, the party be returned in cu­stody and Baylable, and special Baile re­quirable, the Baile not to be taken abso­lutely without consent of the plaintiff or his Attorney, and if taken de bene esse, the prisoner not to be discharged till the Baile be assented unto, or the plaintiff o­ver-ruled in Court to accept the same up­on Examination.

That upon every Commitment by a Judge out of Court, the prosecutor of the Habeas Corpus is to have one of the prothonotaries Clerks present at the turn­ing over of the prisoner, that the Com­mitment may be duly entred and filed.

Concerning Habeas Corpus to Inferiour Courts and Procedendo.

That Writs of Habeas Corpus, directed to the inferiour Courts of London, West­minster, Southwark, and other Courts within five miles of London, may be re­turnable immediatè. And if the Defen­dant intendeth to be bailed, then upon, or within four daies after allowance of the Writ Notice, is to be given in wri­ting of the Names and addition of the Bail, the time when, and the Judge be­fore whom the same is intended to be put in, to the Plaintiff or his Attorny, or him that caused the plaint to be entered; or if none can be found, then notice of the Premisses to be left in writing with the chief Clark of the inferiour Court, or [Page 25]his Deputy by the party that tenders the Baile, or his Attorney, and Oath made thereof; otherwise the Baile not to be taken. And a proceden­do granted if desired, before Baile accep­ted.

That if no Baile in such cases be put in within eight days after the Habeas Corpus allowed, in those Courts when it is returnable immediat a procedendo may be granted by any Judge of this Court, if desired before Baile taken.

And if Baile be taken in the absence of the plaintiff or his Attorney, the same is to be taken de bene esse, and if no ex­ception be taken within twenty days af­ter notice given to the plaintiff or his Attorney of the names of the Baile, and before whom taken, then upon Oath made of such notice, the Bail to be delivered out to be filed.

That if Baile upon a Habeas Corpus bee taken before a Judge at his chamber, and not assented unto, if not filed within foure days after the twen­ty days, a procedendo may be granted upon certificate that it is not filed.

That in Terme time the plaintiff in the inferiour Court may speed the de­fendant to put in, or to file his Baile by rules given in the Bill of Pleas; and if not filed according to rules, upon certifi­cate thereof, a procedendo to be grant­ed.

That all writs of Habeas Corpus re­turnable in Court, be returnable at aday certain.

That upon Baile taken of a person in custody, the Judges Clerk to deliver the Baile to the prothonotary, to be filed, if assented unto; and to that end the prothonotaries Fees to be deposited, but the prisoner not to be discharged, untill the Baile be assented unto, or over-ruled in open Court.

Concerning special Baile.

That if the defendant appear upon the summons, Attachment, or distresse or by Supersedias quia improvidè, or doth truly render himself upon the exigent, no baile is requireable.

That in all causes of removall, be it by Habeas Corpus, Priviledge, or Cer­tiorari, special bayle ought to be gi­ven.

That in causes where the Defendant comes in by Cepi corpus, be it debt, deti­nue, trespass, for goods, Action up­on the case (except slander) if the debt or dammages amount to twenty pound, special baile is to be given, except it be against an Heyr, Executor, or Admini­strator.

That in Covenant because the dama­ges are uncertain, til declaration, Baile at discretion.

That in battery, conspiracy, false imprisonment, no special baile of course without special motion and order.

That in slander no special baile, except in slander of Tytle, wherein to be left to the discretion of the Judges.

That in priviledge, other then for Fees and disbursements as an Attorney in this Court, baile at discretion of the Court. In such case wherein a suit by a common person, especial baile is not re­quisite.

That if baile be given upon reversal of an Outlary, or removable by Habeas Corpus, the original to be shown upon ten­dring of the declaration, otherwise the baile not lyable; unlesse the party or his Attorney will voluntarily appear, or take a declaration, without shewing of it.

That in case of a removall out of an inferiour Court or reversal, the new o­riginal to agree in the nature of the Action, the summe in demand, and the County, otherwise the baile not lyable: but if the party will voluntarily appear to such varying original, to be good as to the party: but if upon a cause remo­ved [Page 29]by Habeas Corpus, out of the Courts of Canterbury, Southampton, Hull, Lichfield, or Poole, which are Counties where the Judges of Nisip [...]rius seldome come, if the Action bee transi­tory, it must be laid in the County of Kent, Southampton, York, Stafford, or Dorset, where the Town and County lieth, and the recognizance to be taken accor­dingly.

That the principall rendring himselfe at any time after baile put in, and before or upon the day of appearance of the scire facias returned, scire feci, or of the second scire facias returned nihil, or in case there shall bee an Action of debt brought upon the recognizance against the baile, then if the principal shall ren­der himselfe, upon or before the processe returned served, no further proceedings to be against the baile.

Concerning Appearances, and Entries thereof.

That Appearances be duly entred with the Prothonotaries or Phillizers of this Court respectively, with whom the same ought to be entred: but if special baile be requirable in the case, the plain­tiffe not to be concluded by such appea­rances, if he insist upon it.

That where an appearance is upon the original writ, if the defendants appear­ance be not entered of Record, the de­fendants Attorney to give his hand to the plaintiffs Attornie upon the delivery of the declaration, that he appeareth thereunto.

That any Attorney of either bench accepting a warrant to appeare, or sub­scribing a process, declaration, or warrant to appear, be compelled to [Page 31]cause appearance, or be liable to an attachment, or put out of the Rol, as the case requires; and the party not to bee received to countermand such appearance after his Retey­ner.

That no person without Rule of Court, order of the Judge or Protho­notary; and notice to the adverse par­tie or his Attorney, change or shift his Attorney; and such Attorney newly coming in, to take notice at his peril of the Rules whereunto the former At­torney was lyable, had hee continu­ed.

That a Reteyner of an Attorney of the Common pleas, by an Attorney of the Upper Bench, & è Converso, be a sufficient excuse to the Attorney so re­teined, acting according to such re­teyner, and the Attorney so retaining it without warrant from the party, to be subject to the punishment.

That if a Capias be returned in Court non est inventus, against a prisoner in the Fleete, he is compellable to appear upon a Habeas Corpus ad respondendum, as well at the suit of a stranger, as at [Page 32]his suite whereupon hee is imprisoned, and to answer to a declaration accor­ding to the rule of the Court, or that [...]udgement bee entered against him.

That hee that reverseth an outlary have an Attorney of Record present, who must undertake an appearance to a new original. And such Attorny shall be compelled to appear; and that the defendant or his Attorney give notice to the plaintiffe or his Attorney, of such reversal the same terme, or in the vacation next after it.

Concerning Imparlances.

That for as much as some Incon­veniencies doe sometimes happen to plaintiffe, by entring their declaration in speciall Actions. It is therefore [Page 33]ordered that the plaintiff in such special Actions shall have libe [...]ty to enter the Imparlances the Terme following, en­tring the same of the first Terme with an Incipitur, as it hath been usual in Quare Impedits: but that all other imparlan­ces be duly entred before any Issues, or demurrers, or judgements thereupon be entred.

That if the defendant appear the first Terme, and give no Rules to declare, the defendants Attorney may the second Terme be compelled to accept of a de­claration with Imparlance, and the de­claration may be entred as of that Term, with an Imparlance over to the next Terme, or in the first Terme with an In­cipitur, as before, as the case shall re­quire.

That if the plaintiff declare not the se­cond Terme, though the defendant give no rules, yet a non Suite may be entred at the end of the Second Terme upon a continuance over by him entred by dies datus, but not the third Terme, or after.

That upon a meere real Action, or a bare clausum fregit, an Imparlance of Course. But in Dower after view had, if [Page 34]the day to appear be upon the first return of any Hillary or Trinity Term, no Imparlance without consent or rule of Court.

That in Ejectment or any person­al action, If the apperance be the first returne of Hillary or Trinity Terme, no Imparlance without consent or special rule in such causes, other then in London or Middlesex. If the appearance be be­fore Crastin' Martin' or mense Pasc. no Imparlance without consent, or speciall rule. But if upon or after those returnes, an Imparlance of Course.

In London or Middlesex if the appearance bee before Crastin' A­scen', or before the last returne of any other Terme no Imparlance with­out a special rule or consent; but the de­fendant to plead as of that Terme within fourteen days after the end of the Terme upon rule given to answer: but if of Crastin' Ascen' or the last returne, then an Imparlance of course.

That no Judgement by nihil dicit be entred untill there be a rule to plead, first given in that Prothonotaries office, where the cause is entred, and the day by such rule be past, and that such rules [Page 35]be only given in the Bills of pleas or o­ther remembrances for that purpose, only to be in the custody of the secon­dary of the respective prothonotaries, during the time limited for giving of rules, to the intent that all persons con­cerned may have recourse to the said se­condary, and to see the same Gratis; and that Clerks who usually enter for At­tornies, may give rules for answer in the said remembrances in all their own cau­ses wherein there hath been Imparlances, except in Ejectments, so as they enter the same rules in the office without carrying any of the said remembrances out of any of the said offices; and that the secon­dary set down upon the remembrances the day wherein such rules are given, and that no rules to declare or answer be gi­ven after three days exclusive after the end of any Terme, and such rule to be out at four days inclusive of the day wherein the same is given.

That in all actions except Replevin (after rules to declare are out, yet) if the plaintiff or his known Attorny or Clerk be to be found, a Nonsuite for want of a declaration not to be entred, unlesse the [Page 36]Plaintiffs Attorney or known Clerk be first called to for a declaration.

That if the Plaintiffs Attorney or Clerk be called to for a declaration, and delivers it not to the Defendant or his Attorney sometime during that Terme, then the rule being out, the Defendants Attorney may enter a Nonsuit.

That if the Plaintiffs Attorney being called to for a declaration, cannot after­wards finde the Defendants Attorney or Clerk to save a Nonsuit, he may de­liver a declaration into the prothonota­ries office where the rules are given.

That when a Deed, Will, or Letters of Administration are to be shewn in a declaration, the Attorney of the Plain­tiffe delivering a declaration with a sub­scription, that the Defendant shall not be compelled to plead till the same be shewn; no Judgment by Nihil dicit be entred against the Defendant till the same shewn; nor any Nonsuit upon the Plaintiff if he shew the same before the end of the next Terme.

If the Defendant bee committed to prison by Processe out of this Court, or Habeas Corpus, the prisoner entring his appearance [Page 37]with the Prothonotary in case of a plaint, or in case of attachment of pri­viledge; or with the Filizer in case of other processe, and giving rules to de­clare, the Plaintiff not declaring before the end of the next Term after the com­mitment, the defendant in reference thereunto to be discharged of his Im­prisonment by Supersedias in the end of the next Terme, and Liberty for the Plaintiff to declare upon that appearance the next Terme after that at the furthest.

That if a writ be returnable 5. Pasc. or the last returne of any Terme, the De­fendant, giving rule, and calling for a declaration, if it be not delivered accor­ding to the former directions, four days or more before the Essoigne day of the ensuing Terme, may enter a Nonsuit, though above sixteen days after the pre­ceding Terme.

That the Plaintiff having declared and given rules for answer, the Defen­dant is to deliver his plea in writing to the Plaintiffs Attorney, or known Clerk.

That if there be no such Attorney or Clerk to be found, or being found, refu­seth to accept it, then the plea may be [Page 38]left in the office to save a Judgment.

That in any case where a Plea or Declaration is left in the office, no Nonsuit for want of a Declaration, or judgment for want of a Plea bee En­tred.

That in cases of popular actions, Informations, or real or mixt actions, except ejectment, no judgment to be en­tred by default, or nihil dicit, without motion in Court.

That upon Nul tiel Record pleaded, and no difficulty or variance appearing, Judgment be entred after rule, without motion by the Plaintiff.

That after any Imparlance of three Termes, without any calling for an­swer, no Judgment to be entered with­out a Terms notice.

Concerning Declarati­ons.

For avoiding of long and unnecessa­ry repetitions of the Original Writ in Actions upon the Case, and personal Actions upon penal Statutes.

That Declarations in Actions of Trespasse upon the Case, or personal A­ctions upon any general Statute; name­ly, Hue and Cry, Monopolies, and for suits in the Admiralty, and such like, other then debt, repeat not the Original writ but only the nature of the action. viz. A.B. was attached to answer C. D. in a plea of trespasse upon the Case, or in a plea of trespasse and contempt, against the forme of the statute.

For the avoiding of the Common Barre and new assignment.

The declaration upon an Original, or Bill Quare clausum fregit, may men­tion the place certainly, & so prevent the use and necessity of the Common barre and new assignment.

That unnecessary length of declara­tions be reformed. And in order there­unto,

That in actions of covenant not to repeat more of the deed then is necessary for the assignment of the breach, and not to repeat the Covenant in the conclusi­on.

That in actions of slander, long pre­ambles be forborn, and no more induce­ment then what is necessary for the maintenance of the accord, when it re­quires a special Inducement or Colloqui­um.

That in actions upon general statutes the declaration not to repeate the statute, but to conclude against the forme of the statute in such case made and pro­vided: as in case of debt, upon the statute of the second year of Edward the sixth, For Tythes; the thirty second of Henry [Page 41]the eighth, for Maintenance. 21 Jacobi for Monopolie.

That actions of debt upon a Judg­ment had in the Courts at Westminister, to recite only the Judgment. But if a Judgment had by, or against an Execu­tor or Administrators debt, thereupon to repeat the Declaration and Judgment.

That before the declaration actually entred, the Plaintiff may mend his Declaration, paying costs, or giving an Imparlance, at the Plaintiffs election, by the Order of a Judge of the Court, or Prothonotary: But after it is entred, if the amendment be but a small matter that doth not deface the Roll, yet that before issue or demur­rer entred it be amendable by rule of Court upon costs and libertie to plead, with a new or further Imparlance.

To cause care in examination of the Declaration.

That if the Plaintiffs Attorney or Clerk deliver a Copy to the Defendants Attorney or Clerk, materially varying from the Original declaration, the disad­vantage thereof not to be cast upon the Defendant, but on the Plaintiff, whose At­torney is paid for it.

Concerning Pleading.

The Common Barre and new assign­ment to be forborn, where the declarati­on contains the certainty equivalent to a new assignment.

That pleadings be succint, without un­necessary repetitions.

That in the pleading of an Outlawry the mesne processe be not repeated, but the exigent, and Utlary joyned to the commencing of the suit.

That in pleading a general statute, the statute be not recited, As the statute of twenty one Jacobi of Limitati­ons.

Concerning Demurrers.

That according to the statute of the twenty seventh of Elizabeth upon De­murrers, the causes be specially assigned, and not involved with general unap­plyed expressions of double, negative, pregnant, uncertain, wanting forme, and the like; but to shew specially wherein that the other party may (as the case shall require) either joyne in demurrer, or a­mend, paying costs; or discontinue his Action.

That it be declared, that matters of form, aswell on the part of him that de­murres, as of him that joyns in all parts of the pleading, are discharged; unlesse such as are specially assigned upon the Demurrer.

Concerning Tryals, and notice of Tryals and Inquiries.

That notice of Tryals or Inquiries in London or Middlesex, the Defendant dwelling within forty miles of London, be eight days exclusive of the day where­in notice is given.

That if the Defendant live above for­ty miles distant from London, notice of such Tryals and Inquiries in London or Middlesex be fourteen dayes exclusive of the day of notice.

That in all Issues to be tryed by Nisi prins in London or Middlesex upon a re­cord of a precedent Terme, the copy of the Issue be brought to the Clerk of the Treasury, for the ingrossing of the Re­cord, four dayes at the least before the day of Tryal of such Issue; and that all Causes to be tryed in London or Middle­sex [Page 45]be entered into the Marshals Book four dayes before the day of tryal.

That eight dayes notice exclusive be given upon tryals in the Country, & up­on writs of enquiry of dammages in writs of dower and wast, and all other inquiries of dammages.

That if the Plaintiff give notice of a tryal, and he proceed not, the Plaintiff not to take it down to tryal again with­out new notice to be given, as is before expressed, unlesse by consent or Rule of Court.

But in London or Middlesex, if notice be given of a tryal for one sitting, and the Plaintiff be not provided to pro­ceed: Then if hee give notice before the sitting that he will try it the next sitting, that to be held convenient no­tice.

That in case of such warning, and no proceeding, the Defendant upon motion to have his cost of his former attendance, to be taxed by the Prothonotary; unlesse the Plaiatiff give the Defendant warn­ing in convenient time that he would not proceed; or shew cause to be allowed by the Court in excuse of such Costs.

That no Record of nisi prius be sign­ed before the issue be entred upon the Roll.

That if the Plaintiff give notice for a tryal, and proceed not, the Defendant may take it by proviso according to law, giving notice eight or fourteen days, as the case requireth, as aforesaid.

That in London or Middlesex, if no warning for a Tryal, then the Defendant not to take it by proviso, to try it the same Terme; but af­terwards hee may take it by proviso according to Law, giving eight or fourteen days notice as the case re­quires.

That if notice bee given to the At­torney of the adverse party of a tryal upon an issue joyned, it be taken to be good notice: And oath made of want of notice to the Attorney, to turne the proof of notice given to the party upon him that brought it down to Tryal in that case.

That if an issue bee joyned above a year since in any case, then one Terms notice to be given of the tryal.

Concerning Tryalls at Barre.

That for the remedy of excessive charges of Tryals at the Barre, especially whilst the Jury lyeth out, it is ordered that a Jury lying out one night after a privy verdict delivered, there be allowed for the whole dyet of each Jury man that night no more then three shillings four pence a piece, and for two Cryers to each of them, no more then two shillings ordinary, besides the charge of the Ju­rours Lodging.

That after a verdict delivered in Court, the Jury and Officers to be paid their charges and fees in the Inner Trea­sury, without going to the Taverns or Victualling houses for that cause.

Concerning special verdicts at the Bar, or by Nisi prius.

That in finding special verdicts where the points are single and not complica­ted, and no special conclusion, the Coun­cel (if required) do subscribe the points in question, and agree to amend omissions or mistakes in the mesne Conveyance, ac­cording to the truth, to bring the point in question to Judgment.

That unnecessary finding of deeds in haec verba, where the question rests not upon them, but are only derivatioin of title, to be spared; and found shortly, ac­cording to the substance they bear in re­ference to the Deed, as Feoffment, Lease, Grant, &c.

Concerning new Tryalls.

That where a verdict findes entire da­mages where damages are the principal, and part not actionable, though judg­ment be arrested, yet by rule of Court a venire fac' de novo may issue as upon an Ill verdict, and upon the new tryal the party may sever his damages.

Concerning Judgment.

That in a judgment by non sum infor­matus, or nihil dicit, in Eject' fir me, the Capiatur be entred upon the first judg­ment.

That upon a cause removed by Habe­as Corpus out of an Inferiour Court, ha­ving Jurisdiction of the cause, if Judg­ment be given for the Plaintiff, the costs below to be considered and cast into the [Page 50]judgment; if for the Defendant, the charge of putting in baile.

That the principal in any bond or bill obligatory do not for the time to come give warrant to appear for, or confesse judgment against his surety: and that after the two and twentieth of January next, no judgment be confessed for, or gi­ven against the surety upon any such warrant given by the principal.

That sixteen days be allowed for the signing of Judgments after every Terme, except Easter Terme, upon causes de­pending in the erme precedent.

And lastly, it is declared by the Justi­ces of this Court, that as the Court doth expect that all the Rules and Orders be­fore mentioned be duly observed; so it is further Ordered, that all other former Orders and Rules yet in force not hereby altered, suspended or adnulled, be like­wise Observed and put in execution ac­cording to the true intent and meaning of the same.

  • OL. St JOHN.
  • EDW. ATKINS.
  • MATTHEW HALE.
  • HUGH WINDHAM.
FINIS.

The Oath to be taken by e­very Attorney of the Common Pleas, before their admittance, to bee administred openly in Court.

YOu shall do no falshood or deceit, nor consent to any to be done within the Court: And if you shall know of any to be done, you shall give know­ledge thereof to the Lord Chief Justice, or other of his [Page 52]brethren, Justices of this place, that it may bee reformed. You shall delay no man for lucre or Malice. You shall increase no fees, but you shall be contented with the old fees accustomed. You shall plead no forreign Plea, nor sue no forreign Suits unlawfully, to the hurt of any man; but such as shall stand with the Order of law, and your own consci­ence. You shall seal all such processe as you sue out of this Court, with the seal thereof: and see the fees paid for the same. You shall not wittingly nor willingly sue, or procure to [Page 53]be sued any false suit, nor give aide or consent to the same, up­on pain to be expulsed from this Court for ever. And further, You shall truly use and demean you self in the of­fice of an Attorney within the Court, according to your lear­ning and discretion.

So help you God.

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