R. T. hath no other or more Lands or Tenements at the aforesaid day he became debtor so as abovesaid nor at any time since nor hath he any other or more goods or chattels at the time of the taking this Inquisition in my Bayliwick to the knowledge of the said Jurors In witnesse c. R. S. Esq sheriff By vertue of this Writ to me directed by W. G. and E. D honest and lawfull men of my Baliwick I have given notice to R W. within named Son and Heire of R. W. within mentioned deceased And to W. R. and I. H. Gent. Tertenants of divers Lands and Tenements in my Bayliwick of which the said R. W. the Fther was in his life time seised in his Demesne as of Fee on the morrow of All Soules within specified That they be before the Justices within mentioned at the day and place within contained to shew c. as within it is commanded R. S. Esq sheriff Pledges of prosecuting Io Doo Ric. Roo Summoners of the within named H.W. R.M. R. B. And further by vertue of this Writ the 3d day of Ia in the yeare within written I made publique proclamation according to the forme of the Stat. and the exigence of this Writ R. S. Esq Sheriff The Oath of the Sheriffe YOu shall sweare that you shall well and truly serve his Highnesse the Lord Protector in the Office of the Sheriffe of the County of Yorkshire and do the Common-wealth profit in all things that belongeth to you to do by way of your office as far forth as you can or may You shall truly keep the Common-wealths right you shall not assent to decrease or lessening or to concealment of his Highnesse rights or of his Franchises And whatsoever you have knowledge that his Highnesse rights have been concealed or with-drawn to be in Lands Rents Franchises or Suits or any other things you shall do your true power to make them be restored to his Highnesse again And if you may not do it you shall certifie his Highnesse the Lord Protector his Councel or some of them thereof You shall not respite his Highnesses debts for any gift or favour where you may raise them without great grievance to the debtors You shall truly and rightfully treat the people of your Sheriff-wick and do right as well to poor as to rich in all that belongeth to your office You shall do no wrong to any man for any gift or other behest or promise of goods for favour nor hate You shal disturb no mans right You shall truly acquit at the Exchequer all those of whom you shall receive any thing of his Highnesses debts You shall take nothing whereby his Highnesse or the Common-wealth may loose or whereby the right may be letted or disturbed and his Highnesse or the Common-wealth delayed You shall truly returne and truly serve all his Highnesses Writs as far forth as shall be to your cunning You shall not have to be your under-Sheriff any of the Sherifs of the last yeare past You shall take no Baylif into your service but such as you will answer for you shall make Oath of your Baylifs to make such oath as you make your self in that which appertaineth to their occupation you shall receive no Writ by you nor any of yours unsealed or any sealed under the seale of any Justice saving the Justices of Assize or Justice assigned in the same Shire where you are Sheriffe or other Justices having power and authority to make any Writs unto you by the Law of the Land or of the Justices of Newgate you shall make your Bayliffs of true and sufficient men in the Countrey Also you shall do all your power and diligence to destroy and make to cease all manner of Heresies and Errors commonly called Lollaries within your Bayliwick from time to time to all your power assist and be helping to all the Ordinaries and Commissaries You shall be dwelling in your own proper person within your Bayliwick for the time you shall be in the same Office except you be otherwise licenced by his Highnesse the Lord Protector You shall not let your Sherifwick nor any Bayliwick thereof to any man You shall truly set and return reasonable and due issues of them that be within your Bailiwick after their estate and behaviour and make your pannels your selfe of such persons as be next most sufficient and not suspect nor procured as it is by the Statutes provided And over this in eschewing and restraint of Man-slaughters Robberies and other manifold grievous offences that be done daily namely by such as name themselves Souldiers and by other Vagrants the which increase in number and multiply so that the people of this Common-wealth may not in safety ride nor goe to doe such things as they have to do to their intolerable hurt and hinderance You shall truly and effectually with all diligence possible to your power execute the Statutes as the Statute of Winchester and for Vagabonds All these things you shall truly observe and keepe as God you helpe c. An Indenture by a high Sheriffe deputing one to be his under-Sheriff THIS INDENTVRE made c. between A. B. of R. in the County of Yorke Esquire Sheriffe of the said County of the one part And C. D. of W. in the said County Gent. of the other part witnesseth That the said A. B. of assured hope confidence and trust that he hath that the said C. D. will honestly uprightly and sufficiently discharge the office and duty of Under-sherif aswell towards his Highnesse the Lord Protector as all the people of this Common-wealth of England and therein discharge him the said Sheriffe and for the consideration hereafter mentioned hath been pleased and contented to assigne depute ordaine constitute and make and by these presents doth assigne depute ordaine constitute and make the said C. D. his Under-sheriffe of the said County of Yorke authorizing hereby the said C. D. according to the Covenants and Agreements by these presents contained to execute persorme and do all that which to the duty and office of Under-sheriffe of the said County of Y. shall appertaine or to the Sheriffe of the said County without the personall presence of the said Sheriffe may be executed and done and also to receive and take to his owne use all manner of duties and lawfull free commodities profits and advantages to the same office belonging or in any wise lawfully appertaining during such time as the said A. B. shall continue Sheriffe of the said County in consideration whereof the sayd C. D. for himselfe his Heires Executors and Administrators doth covenant promise and grant to and with the said A. B. his Executors Administrators and Assignes and every of them by these presents That he the said C. D. shall and will during such time as the said A. B. shall continue remain and be Sheriff of the said County of Y. honestly truly and sufficiently execute and
HEe cannot enquire of the Statute of Labourers or indict one feloniously committing a Rape yet such Indictments must be delivered to the Justices of the Peace according to the Statute of 1 Ed. 4. Bract. praesent 16. Fitz. Tourne 3. 4 Edward 4. 8 Edw. 4. 5. He cannot commit any man to prison for his contempt neither can he take recognizance or binde a man to good behaviour as formerly he might and as the Sheriffe in his Tourne may do Yet Co. Instit 4. fol. 263. holdeth that he may take a Recognizance for the peace He cannot hold plea of any thing appertaining to the Crown nor touching Free-hold or Lands nor debt trespasse or otherwise This Court cannot take Indictment of any Felons for the death of any man or in any other case wherein it hath no cognizance If it doe it is Coram non judice and voyd neither can it take a presentment of an offence done to a Parish or a particular man Such things as are Trespasses by the Statute or offences against any Statute the Sheriffs Office doth not extend to it here except the Statute doth give in it an expresse authority to the Tourne or Leet for Nulla est generalis regula sed admittit exceptionem Nothing but Nusances and Grievances Offences or Trespasses as are popular and common to many persons And therefore Trespasses for breaking of Closes nor Assaults made to a sole and particular person is here inquirable except there be blood-shed It was the occasion of a very learned Contest or Argument Pasch 24 Car. B. R. whether a Court Leet may enquire of private Assaults and Batteries if there be no blood-shed in the case Bacon Justice and Walker an Apprentice of the LAW in the Inner TEMPLE held that a Court Leet might enquire of them But Justice Roll held the contrary because they are actionable at the COMMON LAW onely by the party injured and are not publique offences against the publique Upon all Presentments and Indictments taken before the Sheriffe in his Tourn he hath not power to attach arrest or put in prison nor to levy nor take any Fines or Amerciaments of any person so indicted or presented betore them by reason or colour of any Indictment or presentment taken before them in their Tournes but the Sheriffe shall bring and deliver all such Indictments and Presentments to the Justices of Peace at the Sessions that shall be holden for the said County if not a forfeiture for every one not delivered 40 l. What things are considerable in holding Tourns or Leets HAving demonstrated what things are to be enquired of here and what are not Now three things are considerable in the holding of Tourns or Leets viz. 1. Time 2. Place 3. Persons 1. As to the time it must be kept twice a yeare according to ALFRED quotannis celeberimus bis conventus agetur one moneth after EASTER and one moneth after MICHAELMAS At the Tourn after EASTER no Actions popular are to be enquired after c. but onely to take their suite who are Suitors and to take the view c. And at the Tourne after MICHAEELMAS then to enquire of such as are enquirable 2. Now to the place where it is to be holden and that must be within the Precinct and Libertie in loco debito consueto and if it be done otherwise what ever is acted in it is voyd coram non judice 3. Thirdly what persons are to appeare in this Court they are all the Freeholders within the Precinct or Liberty are obliged to come by the service of their Fees and all other people above the age of 12 years and under 60. only Ecclesiasticall and religious men all Earles Barons Tenants in ancient demesne and all women are excepted because they are never sworn upon any Inquest Jury What. THere must be at the Court twelve at the least of the most discreet and sufficient Freeholders such as are of repute and estimation and have Freehold Lands within the same County of the value of twenty shillings at the least who ought to be impannelled and sworn by the Sheriff to enquire of and present all things there inquireable and presentable who ought to take all Indictments by their oathes and must deliver in their rolls and inquisitions indented and sealed between the Sheriff or Steward and the Jurors And if there be not twelve to be sworn the Sheriffe or Steward may cause strangers that come within the view to be of the Inquest How Amerciaments are forfeited and what shall be causes to amerce c AMerciament in Latine is called misericordia because it ought to be assessed mercisully and ought to be moderated by affeerement of his equals otherwise a Writ de moderata misericordia lieth or because the party offending putteth himselfe on the mercy of his Highnesse And the difference betwixt a Fine and an Amerciament is That a Fine is assessed by the Court but Amerciament by the Countrey Of Amerciament BUT to demonstrate the cause of Amerciament viz. The not appearing of a Leet is a good cause to amerce a Reâ—iant and the Lord who distrains for the amerciament needs not shew for what he distraineth before the tenant hath tendered something for amends although the tenant doth not know the cause 45 E. 3. 9. Avowry 80. vi 11 H. 4. 89. 12 H. 7. 15. If a man be amercied for a thing done in a Towne wherein he dwelleth he may be distrained for it in any place within the Hundred or Leet 11 H. 4. 88. A Suitor at a Leet may be amercied for not presentting things presentable being sworne with others and a generall Avowry but he may say that there was nothing to be presented 11 E. 3. 9. Avowry 155. 10 H. 6. 7. Coo. lib. Enteries Det. 149. Coo. part 8. Griesleys case A Resiant was amercied for not clensing of a Ditch and a paine levied upon him that he clensed it after and a distresse taken for not doing of it c. 29 E. 3 36. 41 E. 3. 26. Resiants and tenants may be amercied in the Leet for refusing to swear 38 E. 3. 18. Conusance 23. The Lord of a Leet shall not prescribe to amerce the petty Jury for their false verdict the same being sound by the grand Jury for it is no good custome but they may be amercied for concealing of any thing which is presentable there and this is by custom M. 9. H. 6. 42. Custome An amerciament in a Leet may be well levied by an action of debt 12 H. 2. Ley 43. 10 H. 6. 7. One was amermercied for brewing Ale and selling it contrary to the Assize within the Hundred and it was holden that although he was resiant within another Leet yet the amerciament is good where it is made so it is where one sels Bread and Ale in a Market which is in another Leet then where it was brewed
a book and not the wyre-drawn flourishes of an obsequious Epistle that causeth your approbation so that this must stand or fall by the weight or levity you shall finde in it Now as this Tract is chiefly intended for the commodity of the Countrey and as it is their sole object to place their invectives point-blanck against Law and Lawyers and if I vindicate them I shall rather seem to detract from then add to their fame it having been the sole subject of many learned pens yet I hope it 's no presumption if I add one Lawrel more to the learned's Crown The Lawes constituted by learned men antiquity own'd receiv'd as from the command of the gods accounting onely those men fit to converse with the gods Thus Minos the Cretan is said to converse with Jupiter and in his presence to compile those Laws he after gave to the people and Lycurgus the Lacaedemonian to have command from the Oracle at Delphos and Numa to consult with the Goddess Aegeria that the Lawes might be more cordially admitted and obeyd as made by the gods themselves Nay in a kind by a civil non obstante excepting them so learned from being obliged by Law as other men of less magnitude were as appears in that carriage of Architas the Pythagorean his Citizens to him whom they would choose seven times their head Governor though the Law prohibited any other that office and honour above a year Have a retro-spect to the Journals of Antiquity view the Diaries of time and you shal find men learned in the Lawes noble advantages to their Countrey their Champions to defend them their Oracles to advise them and their Orators to plead for them And now as to the Laws themselves which may be truly term'd the Walls and Palizadoes of Governments and Nations yea the strongest sinews of humane society for take away the potency of Laws who is it that can say This is mine or that he is within the Bulworks of incolumity according to that eloquent Aphorism of Demosthenes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Leges esse animam civitatis ut etiam corpus cum anima orbatum est concidit Ita civitas sine legibus consistere non potest So the true end of all Laws is to ordain and settle in order and government amongst us the jurisdiction whereof we are rather obliged to obey then dispute Though Thales compared laws to spiders webs But such are ever to be spun in a corrupt state ours are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 speaking laws that dare tax a Delinquent be he never so potent For the Law is grounded upon the rules axioms of reason therefore have an ingeminate denomination the absence of the one is the deformity of the other being in a kind convertibilia and inseparable That common Reason we have ingraffed in our natures is a law directing what we are to do prohibiting the contrary according to that of Cicero Eadem ratio cum est in hominis mente confirmata et confecta lex est For Law is nothing but reason dilated and applied upon several occasions and accidents The comprehension of reason is of publick enormities and necessities for which they be severally at several times constituted being infinite so that the disease in our knowledg many times hath the priority of the remedy And thus the reverence and duty we owe to lawes is nothing else but obedience to reason which is the begetter correcter preserver of the very laws themselves Those therefore who will not obey them are more propinque to the nature of bruits and salvages then men indued withreason It is law reason that do knit the true Gordian knot that binds and cements us to unity and peace amongst our selves and dissipateth all such violent and illegal courses as otherwise unbridled liberty would insinuate preserving every man in his right and preventing others who if they thought their actions might passe with impunity would not measure their course by the rule of Aequum Justum but by the square of their private commodity and affections and so being not circumscribed within reasonable Bounds or Land-marks their reason becomes invisible whereas when they finde that Justice hath a predominant power they are deterred from proceeding in those Acts that otherwise their owne wills and inclinations would give them leave to effect And these were the causes that prompted prudent Antiquity to institute these Courts of Judicature in each County and their severall Precincts and likewise was the cause instigated me to compile this Miscellanie of Courts which in it selfe is methodical facile and perspicuous to benefit the meanest capacity yet satisfie the highest I have now nothing more but to Apologize with Isocrates who with this rule prepares me to endure the supercilious censures various opinions of men 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 And that I hope your candid ingenuities Juvenili mea aetate considerata will promise me your connivance at those Errors that shall occur and that you will mitissimo aspectu smile upon this Cradle brat whose little desert though it cannot expect the perusall yet its humility in prostrating it selfe before you may merit your acceptance whereby he shall be encouraged to higher designs whose highest ambition is to be Your friend to serve you W. G. From Furnivals Inne April 20. 1659. Ad amicum eruditissimum G. Greenwood in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 suum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 DVm stupendam ingenii tui foecunditatem lanuginosa conclusam atate suspicio in mentem subit imberbem Apollinem in te suum transfudisse genium ut testaretur tibi minus pili quam eruditionis accrevisse Minerva non multo pridem è Ioviali tuo cerebro prodiens Affectus amoris titulo vulgo insignita inventionem ovantem plane ostendit luxuriantis calami veneres dulcescentes suas exhibent pulchritudines nec formosa facetiarum rosa caret Aculeis lascivientes digitos stimulantibus In desudato hoc 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 tuo limatum triumphat judicium antiquissimarum Curiarum leges methodos à prudentissimis sui aevi inventas excogitatas ad immensum decus elucubrasti quae tenebricosae vetustatis ruderibus jacebant occulta in lucem dedisti Magis familiaria sive indigesta seu disseminata politiori disposuisti ordine in unum velut perfectionis corpus congessisti In debitum hujus libri non excurram elogium quaelibet pagina suis turget laudibus tuamque ultra Herculis Columnas diffundit famam Magni futuri nominis eximia sunt haec praeludia nec de expectatione tantis suffulta speciminibus dubitandum foelicissimam cerebri tui ubertatem largiori rivo in publicas utilitates manaturam ego interim impositis ori digitis silebo mirabor Tui amantissimus J. P. THE COUNTY-COURT OF THE ORIGINALL OF Shires Sheriffs and the first institution of this COURT BEFORE we anatomise the practice of this Court we thought it convenient to deduce it from
day of June in the year of our Lord 1656. By the Sheriff If the Defendant do not appear the next Court after the Distringas executed then farther Processe issueth against him viz. a Duces tecum to cause him to appear If not upon the first Duces tecum he appear you may have an Alias Duces tecum and a Plures Duces tecum ad infinitum untill he appear and no other remedy here The form is thus Duces tecum Y. ss I. B. Esq Sheriff c. to all c. greeting I command you and every one of you joyntly and severally that you bring with you and have at the Castle of Y. at my next County Court all those goods and Chattels of R. B. which late by vertue of another Precept of mine to you first directed you distrained at the Suit of S. D. and that you farther distrain the said R. B. by his other Goods and Chattels in the said County so that he be at the Castle of Y. at my next County Court to be holden on Munday the c to answer to the said S. D. in a Plea of debt And have you then and there this Precept Given under the Seal of my office the twentieth day of July in the year c. If you have your Distringas or Duces tecum speciall Then the form is thus Speciall Y. ss I. B. Esq Sheriff of the County aforesaid to all my Bayliffs and their Deputies in and through the County aforesaid more especially to R. S. and T. W. my Bayliffs in this behalf specially deputed greeting c. Â then proceed as in the former Of the Writ of Justices THis Writ issueth out of the Chancery directed to the Sheriff giving him power to hold Plea in this Court in Actions for forty shillings or above and though it be directed to the Sheriff yet are the Suitors Judges It is called a Justices because it is a Commission and no originall to the Sheriff to do a man Justice and Right and though it be quod Justices B. yet the Sheriff is not Judge therein but the Suitors and a Writ of false Judgment lyeth upon their erroneous Judgment and it requires no return unlesse the Action be removed by a Writ of Recordare and then the Writ must be returned together with the Record The form of the Precept upon the Writ is as followeth Yo. ss G. M. Esq Sheriff of the said County to all and singular my Bayliffs within the said County and to their Deputies greeting By vertue of a Writ of Justicies of Oliver Lord Protector c. to me directed I command you and every one of you joyntly and severally that you or some of you do Justice to I. C. so that he be and appear at my next County Court to be holden at the Castle of Y. on Munday c. to answer unto E. L. in an Action of debt and that you or some of you certifie your doings herein Sealed with the Seal of my office the two and twentieth day of August in the year of our Lord 1657. By the Sheriff A Replevin IF any goods be taken wrongfully as before I have more at large declared then the party grieved may have a Replevin which must be made after this manner Yo. ss G. M. Esq Sheriff c. to all and every my Bayliffs c. greeting Because G. A. hath comed before me and given sufficient security to prosecute his Suit and make return of his goods if return thereof shall be adjudged Therefore by vertue of my Office I command you and every of you that you or some of you Replevie deliver to the aforesaid G. A. two kine which H. H. hath taken and unjustly detained against the said G. A. and his Pledges and also that you summon and take safe Pledges of the said H. H. so that he be and appear at the Castle of Y. at the next County Court there to be holden upon Munday c. to answer the aforesaid G. A. in an Action for the taking and unjust detaining of his said goods and that you or some of you then and there make return of your doings together with this Precept Given under the Seal of my Office c. And if the Cattell be not delivered by vertue of the said Replevin then the Plaintiff may have an Alias Replevin with these words vel causam mihi signifie with which Replevin must be made after this manner Yo. ss Alias Replevin G. M. Esq c. to all and singular my Bayliffs c. greeting Because G. A. hath comed before me and given sufficient security to prosecute his Suit and make return of his goods if return thereof shall be adjudged Therefore by vertue of my Office I command you and every of you as formerly I have commanded you that you or some of you Replevie and deliver to the said G. A. two Kine without delay you cause to be replevied or the cause to me you signifie wherefore my Mandates to you therefore directed execute you would not or might not which H. H. hath taken and unjustly detained c. as before in the other Replevin And if the Cattell be not delivered upon this Replevin nor shew sufficient cause why he did not then the Party may have a Plures Replevin vel causam mihi signific which must be made verbatim as the Alias Replevin was made and if return be made upon any of these Replevins quod averia elongat sunt ad loca sibi ignot ita quod averia ill ' praef G. A. non potuit deliberar then the Plaintiff may have a Withernam which must be made in this manner Yo. ss Withernam G. M. Esq c. to all c. greeting Because G. A. hath com'd before me c. as in the former I command you and every of you as diverse times I have commanded you that you or some of you replevie and deliver to the said G. A. two Kine which H. H. hath taken and unjustly detained and doth unjustly detain as it is said and that you upon diverse of my Precepts for Replevie to be made to you directed we have certified that the same two Kine elongated are to places unknown so that view of the same have you could not therefore I charge and also command that you take in Withernam Chattells to the value of the said two Kine of the Chattels of the said H. H. to be delivered to the said G. A. for the two Kine aforesaid elongated and also that you summon and take safe Pledges of the said H. H. so that he be and appear c. as before in the Replevin Yo. ss Alias capias in Withernam G. M. Esq c. to all c. greeting Because you have at my County Court held at the Castle of Y. on Munday c. the year c. to me returned that by vertue of my Warrant to you many times directed you came to the Pound of H. H. to the place where the
if he hath Assets there 16 E. 3 Execution 49. and a man may well pray Execution of the body in one County and an Elegit of the land in the other County Execution 38. If a Statute Merchant be sued of parcel of the Lands of the Conusor in the name of all his Lands he shall never extend on the rest of the lands Mic. 22. E. 3. f. 14. If three are bound to one in a Statute Merchant and every one of them by themselves quemlibet eorum perse I may sue Execution against one of them only or against them all at my pleasure If an Infant bind himselfe in a Statute-Merchant or Statute-Staple he may avoid this during his Non-age by Audita Querela and also he may have his Audita Querela after his full age to avoid this Statute by matter of fait and the like law if the Statute be acknowledged by dures of imprisonment Statute Staple WE now come to the laying open a Statute-Staple which is duplicate to use the words of Mr. West viz. either 1. Properly so called or 2. Improperly 1. A Statute-Staple properly so called is an Obligation acknowledged before the Major of the Staple in the presence of one or two Constables of the same Staple And by vertue of such Statute-Staple the Creditor or Recognisee may forthwith have execution of the body lands and goods of the Debtor or Recognisor and this is founded upon the Statute of 27 E. 3. c. 9. 2. A Statute-Staple improper is an obligation of Record founded upon the Stat. of 23 H. 8. c. 6. of the nature and validity of a proper Statute-Staple as touching the form and Execution thereof and acknowledged before one of the chief Justices and in their absence before the Major of the Staple at Westminster and Recorder of London You have the forms of all these Obligations or Statutes in West part 1. Symb. L. 2. Sect. 152. 153. 154. 155. It is sealed with three seals viz. with the seal of the Conusor with the seal of the Protector and of one of the said Iustices or of the Major and Recorder 23 H. 8. c 6. And note that all Statutes Staple and Merchant shall be brought to the Clerk of the Recognisance within four months and inrolled within six months otherwise such Statute shall be void against Purchasors c. 27 Eliz. c. 4. The maner of the proceeds upon it are the same with the Statute-Merchant saving that in a Statute-Staple presently after the Certificate into the Chancery the Conusee shall have a Writ to take his body and extend his Lands and goods returnable in Chancery and this writ is a Commission directed to the Sheriff of the County where the Lands and goods lie for the valuing of the same whereby all the lands goods and chattels of the Conusor shal be apprised and valued at a reasonable rate by a Jury of men sworn charged by the Sheriff for that purpose which Inquisition so taken is to be returned by the Sheriff and thereupon the lands goods and chattels are to be taken into the Sheriffs hands and by him to be delivered to the Conusee which the Sheriff may do if he will without any Writ to hold unto the Conusee until he be satisfied his debt and damages And if the Sheriff refuse so to do the Conusee shall have a writ out of the Chancery called a Liberate to compell him to deliver to the Conusee the lands goods and chattels so found by inquisition and taken into his hands upon the Extent which the Sherif need not return Fitz. Accompt 97. Execution in toto Broo. Stat. in toto Stat. Acton Burnel de Mercat 27 E. 3. 9. F N B. 130. 131. 132. Dyer 180 Coo. 4. 67. Plow 61. 62. 82. Co. super Lit. 290. Coo. 5. 87. c. See more of the proceeding in Statute-Merchant It was adjudged in B. R. Hil. 42. Eliz. that a debt recovered in the Kings Court by Judgment shall be paid before a Bond in nature of a Statute-Staple or Merchant because the Judgment is a matter of a more high and worthy nature then private portable pocket Records also it shall be preferred before a Recognisance acknowledged in any Court by assent which may also be privately done and a Judgment so given in the Kings Court upon ordinary and judicial proceedings which remain in the custody of a sworn Officer are Records which are preferred in Law before such Statutes non refert whether the Judgment or Recognisance or Statute be first for be the Judgment first or last it shall be first satisfied c. And so it was holden per totam curiam in the Common Pleas in Pemberton and Bartams case Plow 32. El. Rot. 235. which see in the end of Sadlers Case in the 4. Reports Dyer 80 53. Recognisance what it is WE now come to the third which is Recognisance and that is an Obligation or Bond of Record acknowledged in a Court of Record testifying the Recognisor to owe to the Recognisee a certain summe of money and is acknowledged in some Court of Record or before some Judge or other Officer of such Court having authority to take the same as the Master of the Chancery the Judges of either Bench of the Exchequer Justices of Peace c. And those that be meer Recognisances are not sealed but inrolled And yet some are sealed with the seale of the party and may be with condition annexed or may be single and then to have Indentures of defeasance If the money be not paid at the day the Conusee proceeds upon it after this manner The Conusee his Executor or Administrator is to bring a Scire facias against the Conusor or if he be dead against his heirs when they be of full age or if the Lands the Conusor had at the time of the entering into the Recognisance be sold against the Purchasors of those Lands which the Conusor had at any time after the Recognisance entred into to warn them to come into that Court whence the Scire facias cometh and to shew cause why Execution should not be done upon the said Recognisance And if the party or parties cannot be found to be warned or being warned do not appear at the time or appearing shew no cause why the debt should not be levied then the Conusee shall have Execution of a moyty of his Lands by Elegit or if the Conusor be living of all his goods by Levari or Fieri facias at his Election but he cannot have Execution of his body unlesse he bring an action of debt upon the Recognisance or it be by course of the Court as it is in the Upper Bench upon a Bail in which case a Capias doth lie Dyer 360. 315 West 2. 18. Broo Execution 129. Co. 3. 11. 15 H 7. 16. Kitch 117. And the proceeds against Sureties in Statutes shall be as the
Action brought For it was alleaged although a reprisall by fresh suit if it had been before the action brought would peradventure have excused him yet being after the Action brought so as the Plaintif at the time of the Action brought had good cause to have the Action the Reprisall after shall not excuse him and compared it to waste brought for Reparations which is amended pendant the Writ it shall not excuse him So here And in proof thereof were cited Coo. 3. fol. 52. Ridgeleyes case 23 E. 4. 8. 13 Edw. 3. tit Barr. 253. But against this it was argued That this reprisall being alleaged to be by fresh suite and before the plea pleaded is good for the time and he shall take advantage thereof to excuse the Escape For it is upon the matter no escape when shee was re-taken by fresh suit for that is a continuall pursuit and the Law shall adjuge her in prison always And it is not like the case of Waste For there nothing was done after the Waste committed before the Action and the Reparation hath not any relation nor is the continuance of any former Act but this Reprisall hath relation and makes it no escape ab initio As a Distresse taken for Rent and rescued and driven into another Mannor which is pursued and re-taken the party shall make his Avowry of the taking in the first place So here And it would otherwise be a great mischiese if an Escape should be against the wills of Sheriffs or keepers of Prisons by breach of prison or rescuing themselves before they be brought to prison or in their going thither and the prisoners be reprised within two or three dayes That an Action should be brought in the Interim against the Gaoler and that this Reprisall when he hath the prisoner before the plea should not be an excuse especially to the Marshall who hath multitude of prisoners and every day is to bring them unto the Hall by Habeas Corpus or Rules of Court If peradventure a Prisoner escapes and an Action be brought against the Marshall the same day before he can have any time to retake him If he should not be excused by the re-taking hee would be charged with a multitude of suits and could not have any remedy to excuse him And therefore it was compared to the pleading of a Fine levyed before the VVrit of Formedon and Proclamations incurred pendant the VVrit before the plea pleaded he well may take advantage thereof by pleading it although when the Writ was brought it was not compleat nor could be pleaded Vide 6 H. 7. 12. Secondly it was moved admitting this to be no plea yet the Action lyes not here because the Escape is of a Feme Covert where her Baron is subject to the Execution So the Plaintiffe hath not lost his debt for by intendment she might not have payd it if shee had layne in prison For shee had nothing but what was her Husbands and the Execution remaines yet against him Therefore Action of Debt lyes not because he is not totally deprived of his Debt but an Action upon the Case in respect of the damage And therefore it was said If one have Execution of a Statute of the Lands Goods and Body c. and the prisoner escapes Yet because the Lands remaine in Execution debt lyes not for the Escape but an Action upon the Case For at the Common Law an Action of Debt was not maintainable for an Escape but it is given by the Statute of 1 Richard 2. where the Debtor escapes But here the sole and principall Debtor did not escape for the Baron is the Principall and remained subject to the Execution vide 33 H. 6. 47. N. Br. 93. Regist fo 98. 4 H. 6. 6. Wherefore c. But the Court held that it was not any plea because the Action is brought and implyes a voluntary permission ire ad largum which is neither denyed or traversed And if the Sheriffe voluntarily lets a prisoner at large he cannot re-take him And so this Reprisall as is alleaged being after the Action brought is to no purpose nor is any plea. And for the Action of Debt they held that it well enough lyes or an Action upon the Case at his pleasure Because the Feme was onely committed to prison and not the Baron And shee is the sole Debtor who is imprisoned wherefore it was adjudged for the Plaintiff But note in as much as Escapes are so penall to Sheriffes Bayliffs of Liberties and Gaolers the reverend Judges of the Law have alwayes made a favourable construction as much as the Law will permit in favour of the Sheriffes Bayliffs of Liberties and Gaolers who are Officers and Ministers of Justice Co. 3. 44. Of Bayle what it is And where the Sheriffe may take Bayle and where not BAILE or Ballium is a safe keeping or protection and thereupon we say when a man upon surety is delivered out of prison traditur in ballium hee is delivered into bayle viz. Into their safe keeping or protection from prison before that he hath satisfied the Law it hath its originall or derivation from the French word Bailler and that also cometh from the Greeke word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they both signifie to deliver into hand For he that is bayled is taken out of a Prison and delivered into the hands of his Friends who are his Sureties for his appearance at a certaine day to answer and be justified by the Law Sheriffs Under-sheriffs or other persons making any warrant for the summons arresting or attaching any person to appeare in any Court not having the originall Processe or Writ to warrant it upon examination and proofe thereof before the Judges of Assize or Judges of the Court c. such offender and their procurers shall be committed to the Goale there to remaine without baile untill they have paid amongst them 10 l. to the party grieved and his costs and damages as also 20 l. to the Protector 43 Eliz. c. 6. Such persons as are in Execution upon any Statute or Recognisance or upon judgement given in the Kings Court at the suit of any person they shall not be bailed until they have agreed with the Plaintiff 1 R. 2. c. 12. 23 H. 6. c. 10. F. N. B. 9. 121. a. Persons condemned in any of the Kings Courts and by vertue thereof committed to prison they shall not be bailed untill they have agreed with the Plaintiff 1 R. 2. c. 12. 2 H. 5. cap. 2. F. N. B. 121. a. If the Sheriffe doe let to baile any persons prohibited by the Stat. of Westm 1. cap. 15. to be bailed he shall be punished by the Justices of Goal-delivery according to the forme of the same Statute or the Justices may fine them as for an escape punishable at the Common Law 25 E. 3. 39. The Sheriff might at the Common Law have bailed a suspect of felony
to reason that their Offices and jurisdictions being several and distinct the one should intermeddle within the jurisdiction of the other But it was resolved that the Justices of the Kings Bench Justices of Oyer and Terminer Goal-delivery and Justices of peace may enquire of hear and determine all murthers and felonies within the verge because their authority and jurisdiction are general through the whole County and alwayes hath beene so used and so was it adjudged without any scruple in Holcrofts case What person ought to be Coroner and how qualified OF ancient time this Office was of such estimation that none could have it but a Knight if we looke backe to the Statute of Westm 1. cap. 10. and the current of the Writ in the Register fol. 177. b. is nisi sit miles c. and such a one qui melius sciat possit officio illi intendere for this was the pollicy of prudent antiquity that Officers did ever give a grace to the place and not the place onely to grace the Officer Therefore it was holden a principall cause to remove and discharge a Coroner if he were not a Knight and had not a hundred shillings rent of Freehold Yet in F N B. de Coronatore eligendo it is not allowed a valid and sufficient cause to remove him though he be not a Knight at this day alledging That those words were inserted into the Statute to the intent that a Coroner should have sufficient within the County to be responsible for all that he doth or ought to do by his said Office Mr. Wilkinson in his office of a Coroner also saith that this Statute requireth such a Coroner as can will and may attend to execute the said office And therefore saith he if such a Coroner be elected as cannot will not or may not attend the execution of the said office he is to be removed and discharged by Writ from the same Office and the cause of his not attendance debility or insufficiency must be rehearsed in the writ and if he be discharged of his office by a false suggestion he may by a petition in Chancery pray a Commission to enquire of this false suggestion and if it be found and returned into the Chancery then his Highnesse may grant a Supersedeas to the Sheriffe of the County that he remove not the said Coroner from his office and if he be removed before the Supersedeas come then that he permit the Coroner removed to execute his office as he did before his removall He must have two properties viz. sufficient knowledge ability and diligence in executing his office Sir Edward Cooke in his second part of his Institutes Westm 1. cap. 10. saith he should have five properties viz. 1. He should be Probus homo 2. Legalis homo 3. Of sufficient understanding and knowledge 4. Of good ability and power to execute his office according to his knowledge 5. Diligent in execution of his office And the Common Law doth not only require expert men to be Coroners but men of sufficient ability and livelihood for three purposes viz. 1. The Law presumes that they will do their duty and not offend the Law for fear of punishment whereunto their Lands and goods be subject 2. That they might execute their office without bribery 3. That they be able to answer to the Protector all such fines and duties as appertaine to him and to discharge the Countrey thereof wherewith the County being their Electors were chargeable For the Coroners being elected by the Countrey if they be insufficient and not able to answer such fines and other duties in respect of their office as they ought the County as their superior shall answer the same As for example the County of Kent made election by force of the Kings writ of William Herlizon to be one of the Coroners for the same County who after was amerced for a false return forty shillings Whereupon processe went out to the Sheriffe to levy it the Sheriff upon his oath said that the said William Herlizon non habet terras vel tenementa bona seu catalla in ballivo suo nec habuit unde dict denarii levari possint Now saith the Record Et quia ipse Coronator electus fuit per Comitatum c. ita quod in defectu ejusdem Coronatoris totus Comitatus ut elector superior c. tenetur regi respondere praeceptum fuit nunc vicecomiti quod de terris tenementis hominum totius Comitatus in balivo suo fieri fac praedict 40 s. And the like law was of the Sheriffe and other the said Officers when they were elegible They remain Conservators of the peace within the County where they are Coroners notwithstanding the Protectors death for being elected by the Freeholders of the County by Writ and returned of Record in the Chancery wich is a judicial act remaineth and so of the Verderor It is otherwise of Judges and Justices that hold their place by Writ Commission Letters patents or otherwise at will whose authority is determined by the death of the King or Protector for by the Commission c. he maketh them Justiciarios suos so that he being once dead they are no more his Justices And it might be a reason wherefore the Sheriff of ancient time was eligible for that he had eustodiam Comitatus and principall Conservator of the Peace and therefore his authority should not cease by the death of the King or Protector no more then that of the Coroner Of the number of Coroners in each County THe number of Coroners are not set downe by the Law In some Counties there are sour in some Counties six in some sewer and in some but one 23 Ass P. 7. 14 H. 4. 34. 39 H 6. 40. F N B. 163. Inst 2. Westm 1. cap. 10. but in twelve Shires in Wales and in Cheshire there are but two Vide Lamb. Iust 16. b. Stamf. 48. Of the power and Jurisdiction of Coroners THe Coroners power is duplicace viz. 1. Judiciall 2. Ministeriall 1. The Judiciall authority both of a generall and speciall Coroner is in case where a man comes to a violent death by selony or mischance and to take the acknowledgement of selony to take the enquest of selonies happening within his Liberty to give abjurations pronounce Judgment upon out-lawries appeals of death by bill c. solely to take an Indictment super visum corporis and to take and enter an appeal but he can proceed no further upon the Indictment or appeal but to deliver them over to the Justices and to enquire of Treasure trove and wreck of the Sea c. But if you will enquire more amply what anciently appertained unto him read Bracton lib. 3. tract 4. cap. 5. de officio Coronatorum circa homicidium cap. 26. de officio Coronatoris in Thesauris inventis cap. 6. de officio Coronatorum in raptu Virginum cap. 8.
they might redress misdemeanors within their precincts and to punish offences committed by their Tenants and to decide and debate controversies arifing within their Juridiction and these Courts were termed Courts Barons as it appears amongst the Lawes of Edward the Confessor where it is said Barones vero qui suam habent curiam de suis hominibus c. taking its name of the Baron who was Lord of the Mannor or according to Coo. com Lit. fo 58. a. for that properly in the eye of the Law it hath relation to the Freeholders who are Judges of the Court because in ancient time such persons were called Barons and came to the Parliament and sate in the Upper House but when time had wrought such an alteration that Mannors fell into the hands of inferiour men and such as were farre unworthy of so sublime a calling then it grow to a Custome that none but such as the King would should come to the Parliament such as the King for their extraordinary wisdome or quality thought good to call by Writ which Writ ran hac vice tantum yet though Lords of Mannors lost their names of Barons and were deprived of that dignity which was inherent to their names yet their Courts retain still the name of Court Barons because they were originally erected for such personages as were Barons neither hath time been so injurious as to irradicate the whole memory of their pristine dignity in their denomination there are yet stamps left of their nobility for they are still entituled by the name of Lords Court-Baron cannot be seperated from a Mannor THis Court-Baron is the chiefe Prop and Pillar of a Mannor which no sooner faileth but the Mannor is destroyed and therefore it cannot be separated from the Mannor for it is a wealth to a Mannor the like of a Court of Pypowder to a Faire of which more in its proper place and by granting the principall which is the Mannor the Court which is incident to it passeth without being named 12 Eliz. Dyer 288. if a Mannor be granted cum pertinentiis the Court passeth for it is an incident inseperable to the Mannor and one cannot grant his Court but he may grant the profits of it Brownlows Rep. 175. Yet though a Court-Baron is incident to a Mannor it must be understood of a Mannor in facto in reality and truth but not to be a Mannor only in intendment and a meer nominall Mannor Bolstrod first part fol. 54. Mich. 8. Jac. And as a Mannor at this day cannot be derived out of the CROWNE therefore ex consequente neither the Court-Baron which is incident to such a Mannor but a Court-Leet is not incident to a Mannor but he which hath a Mannor may also have a Court-Leet to be by him held within his Mannor but this ought to be by a speciall grant from the King and not otherwise and then he may punish offenders the which he cannot doe in his Court-Baron he cannot be ousted of his Court-Baron unlesse he be ousted of his Mannor for if he have a Mannor he ought to have such a Court-Baron for this as I have said is as an incident and follows the Mannor as a necessary consequent and adjunct unto the Mannor and therefore if he have the one viz. the Mannor he shall also have the other viz. the Court-Baron What parts a Court-Baron doth consist of THis Court-Baron appertaining to a Mannor consisteth of four speciall parts viz. 1. The Lord. 2. The Steward 3. The Tenant 4. The Bayliffe It is defined to be an assembly of these parts together within the same Mannor and it is likewise duplicate viz. 1. The first is for the taking care counsel and inquiry of causes concerning the same Mannor as for the triall of titles of the land and the taking and pasing of estates Surrenders admittances and grants and to see justice duly executed and the Acts and Ordinances there done to be recorded in the Rolls of the same Court which Rolls are the evidences of all Ordinances duties and customes and conveyances between the Lord and the tenants of the same Mannor and are to be entred by the Steward or an Officer indifferent between the Lord and his Tenants and the same Rolls to remain with the Lord thereby to know his Tenants his Rents his Fines his Customes and his service And the particular grant of every Copy-hold to be copied out of the Rolls and the copies thereof to be delivered to every particular tenant neither can they make any other title to their said tenements but by their said Copy And this is called the Copiholders Court and herein the Steward is judge 2. The other is for the triall of actions under the sum of forty shillings of the nature of the County-Court of which we have copiously treated in the first part of this worke and therefore here not necessary And herein the Freeholders are Judges But to returne to the Copyholders Court And herein the Lord the Steward the Freeholders the Copyholders and the Bayliffs of every Mannor have an intermixt and joynt office and authority in some cases and to some purposes and to other purposes their office is distinct and every of them doth occupy several places persons and parts Five things necessarily appertaning to a Mannor THere are five things necessarily appurtenant to a Mannor and Court-Baron viz. 1. The Lord is chiefe to command and appoint 2. The Steward to direct and record 3. The Free-holders to affere and judge 4. The Copy-holders to inform and present 5. The Bayliff to attend and execute c. And all these united make a perfect execution of Justice and judgment in Court-Barons and without all these a Court-Baron cannot be held in his proper nature in respect of all causes appertaining to the perfect jurisdiction of a Court-Baron But to make a more particular demonstration of their distinct authorities and offices 1. And first of the Lord as he is chiefe in place so in authority and he officiateth three severall places viz. the one of a Chancellor in cases of equity the other of Justice in matter of right and the third of himselfe in cases proper and particular to himself 2. The Steward doth act the part of several persons viz. Iudge and Orderer in cases of Copyhold and also a Minister and Register to Record and enter things into the Court-rolls and in both these to be indifferent between the Lord and his tenants 3. The Freeholders do likewise execute two parts that is to affeere and judge amerciaments and also to return and certifie judgements 4. The Copyholders hold two distinct places viz. to inform offences committed against the Lord within the Mannor and to present such things as shall be given in charge by the Steward 5. The Bayliffe officiates two parts viz. to execute the processe and mandates of the Court and also to return into the Court the execution of the same process
because he is conservator of the peace but now it seems the power is transferred to the Justices of the Peace onely See the Stat. 1 R. 3. c. 3. 3 H. 7. 3. If a prisoner bailable tender sufficient sureties to the Sheriff and he refuseth he shall be amerced to the Protector and Informer 40 l. and shall lose treble damages to the party grieved If a person be arrested by vertue of any Writ or precept in any Action personall upon tender of reasonable sureties to appear at the day and place as the said Writs Bills or Preceps shall require he shall be bailed 23 H. 6. cap. 10. Fitz. 251. b. And the person is not obliged to go to the Sherif if he offer sufficient baile to the Baylif Persons apprehended for any manner of Treason or Felony shall not be bailed Westm 1. Cap. It is the constant course of the Upper Bench that the Bail is never chargeable till there is default assigned in the principall upon the return of a Capias ad satisfac And if the principall render his body though the Plaintiff refuse to take it yet that is a discharge of the baile Winch Rep. fo 62. It is not repugnant to our present subject to transcribe the new Rules concerning speciall Bayle viz. 1. That if the Defendant appeare upon the Summons Attachment or Distresse or by Supersedeas quia improvide or doth truly render himselfe upon the Exigent no baile is requirable 2 That in all causes of removeall be it by Habeas Corpus Priviledges or Certiorari speciall bail ought to be given 3 That in causes where the Defendant comes in by Cepi corpus be it Debt Detinue Trespasse for goods Action upon the Case except slander if the debt or damages amount to 20 l. special baile is to be given except it be against an Heire Executor or Administrator 4 That in Covenant because the damages are uncertain till Declaration bail at discretion 5 That in Battery Conspiracy false imprisonment no speciall baile of course without special motion and order 6 That in slander no speciall baile except in slander of title wherein to be left to the discretion of the Judges 7 That in priviledge other then for sees and disbursments as an Attorney in this Court baile at discretion of the Court. In such case wherein a suite by a common person especiall baile is not requisite 8 That if baile be given upon reversall of an Outlawrie or removall by Habeas Corpus the Originall to be shewne upon tendring of the Declaration otherwise the baile not liable unlesse the party or his Attorney will voluntarily appeare or take a Declaration without shewing of it 9 That in case of a removall out of an inferiour Court or reversall the new Originall to agree in the nature of the Action the summe in demand and the County otherwise the baile not lyable but if the partie will voluntarily appeare to such varying originall to be good as to the partie but if upon a cause removed by Habeas Corpus out of the Courts of Canterbury Southampton Hull Litchfield or Poole which are Counties where the Judges of Nisi prius seldome come if the Action be transitory it must be laid in the County of Kent Southampton Yorke Stafford or Dorcet where the Towne and County lieth and the Recognizance to be taken accordingly 10 That the Principall rendring himselfe at any time after bayle put in and before or upon the day of appearnce of the scire fac returned scire feci or of the second scire facias returned Nihil or in case there shall be an Action of Debt brought upon the Recognizance against the Bayle then if the Principall shall render himselfe upon or before the processe returned or served no further proceeding to be against the Bayle Of the Election of Parliament men how and when they are to be elected c. THe manner of electing Knights of the Shire is as followeth viz. At the next County Court after the delivery of the Writ Proclamation is to be made in full County of the day and place of the Parliament and that all there present as well Suitors summoned as others shall attend to the election of the Knights and then in full County a free and indifferent election shall be made notwithstanding any request or mandate to the contrary And note that no Election can be made by any Knight of the Shire but between the hours of 8 and 11. in the fore-noon but if the election be begun within the time and cannot be determined within those hours the election may be made after And if any election or voyces be given before the Precept be read and published are void and not effectual Likewise he ought immediately after the receipt of the Writ of his Highness for the summoning of the Parliament to make his Precepts under the seal of his Office to every Major and Bailiff of Cities and Boroughs within his County commanding them thereby to choose Citizens and Burgesses to come to the Parliament And those Majors and Bayliffs must make a legal return of that Precept to the Sheriff of their election and their names that are elected The Sheriff setting his hand and seal of Office to one part of the Indentures delivering it to the Major Citizens or Burgesses to be kept the Major Citizens or Burgesses setting their hands and seals to the other part delivering it as their Deeds to the Sheriff to be certified and returned by him with the writ of summons to the Clerk of the Crown whose see is 4 s for every Indenture 23 H. 6. cap 15. Crompton 208. P. Parl. 5. Note that after the Precept of the Sheriff directed to the City or Borough for making of election there ought Secundum legem consuetudinem Parliamenti to be given a convenient time for the day of election and sufficient warning given to the Citizens or Burgesses that have voices that they may be present otherwise the election is not good At the election if the party elected or the Freeholders demand the poll the Sheriff cannot deny the scrutiny for he cannot discern who be Freeholders by the view and though the party would wave the poll yet the Sheriff must proceed in the scrutiny And by the Stat. of 8 H. 6. c. 7. 10 H. 6. c. 2. The election of Knights of the Shire shall be made by the more voices of the people dwelling in the Counties having each of them lands or tenements of the yearly value of 40 s. besides reprises and the Sheriff hath power to examine upon oath the choosers how much they may expend by the year After such election the names of the parties so elected be they present or absent shall be written in an Indenture under the seals of all those that did choose them which Indenture so sealed and taken to the said writ shall be the Sheriffs return thereof touching the Knights of the Shires