A SURVEY of the County JUDICATURES Commonly called the County Court Hundred Court and Court Baron Wherein the nature and use of them and the way and order of keeping them is opened for the great ease and profit of all such as have occasion to keep or use them By WILLIAM SHEPPARD Esq LONDON Printed by R. DANIEL and are to be sold by Nathaniel Ekins at the signe of the Gun in S. Pauls Churchyard 1656. To the Reader and all his dear Countrymen My dear Countrymen WHiles I think of my day far spent and my night almost come when my Body must fall asleep and my Soul must to God my great Master that gave it me to give an account of my Time which I have had and Talents wherewith I have been trusted I am pressed to make use of the little time is left me to do what service I may for you And calling to mind the excellent invention of our Common Law * Coo. 2. part of his institutes fol. 311. observed by an eminent Judge of the Nation that men should not be troubled for suits of small value in the great remote Courts of the Nation but that they might be heard and determined in the Country with small charge and little or no travel or losse of time it ordained County Iudicatures the County Courts Hundred Courts and Court Barons where all Actions of Debt of the Case Detinue Covenant Trespasse and other personall Actions under fourty shillings which would be now more then twice so much were to have been heard and ended And as this Iudge hath it it was then accounted against the dignity and institution of those high Courts to hold plea of small or trifling causes Ne dignitas Curiarum illarum vilesceret ne materiam superaret opus And looking upon our present State that as it is generally conceived a third part of the many thousand actions now depending in Westminster Hall are such trifling actions that might be ended in the Country Iudicatures were these Courts duely regulated So that the Law that was instituted for the quiet and defence of man is now by corruption abused to his vexation charge and offence I cannot but say woe and alas that we are so miserably fallen and degenerated And taking notice further that there is at this time upon the spirit of our present Authority a deep sense of this and some other evils and pressures upon this Nation with a resolution as farre and as fast as it can to cure them if we our selves do not obstruct it These and some other such like considerations as these have put me on the resolution to send this rude draught amongst you that thereby I may perhaps provoke those that are concerned and have power in it to endeavour the regulation and reducement of this County Iudicature again to its pure and primitive institution And that they that are imployed in the keeping of these Courts may the better know how to keep them and they for whom they are kept the better know what to require of and expect from them that keep them I have adventured to send this little piece more amongst you And now if I can but have your good will and good word for all this it shall suffice to Your dear Countryman W. S. CHAP. I. Of the County Court THe County Court is a What the County Court is Court not of Record incident to the Sheriffs office for the hearing and determining of petty matters between party and party within the County wherein the Sheriff is onely a Register or Recorder and the Freeholders of the County are Judges The stile of this Court is GLOUC The first Court of E. C. Esquire Sheriff of the County aforesaid held at Gloucester the first day of May 1655. And the next Court The second Court c. Sect. I. Of the nature of this Court THe office of the Sheriff The Sheriffs office hath this Court incident and belonging to it and not to be severed nor granted away from it Nay the Lord Protectour by his Letters pattents cannot grant away the office of the Clark of the County Court nor the fees c. thereto belonging and if whilst the office or place of the Sheriff remaines void the Lord Protectour by his Letters Patents under the Great Seal shall grant away the said office of the Clark of the County or Shire Clark of the County or shall appoint any to occupy or use the same yet when the Lord Protectour shall afterwards make one Sheriff he shall avoid that grant for that the County Court and the entring of all the proceedings therein are incident to the office of the Sheriff the Sheriff is to appoint such Clarks under him Sheriffs Clark in his County Court for whom he will answer at his perill Sect. II. Of the time of keeping this Court. THese County Courts must The County Court to be kept monthly be holden and kept from moneth to moneth and must be no longer deferred but one moneth from Court to Court and so these Courts are to be kept every moneth upon a day certain and no otherwise and the moneths to be reckoned by eight and twenty dayes and not by the Kalender and so within the twelve Shires of Wales their Sheriffs must keep their Counties monethly The necessity of keeping this The reason of the keeping this Court monthly Court every moneth and upon a day certain is by reason of the Lord Protectors writs of Exigents which must be read there Sect. III. Of the place of keeping this Court. AS to the place wherein these Courts are to be kept these things are to be known First The Sheriff of Northumberland Sheriff of Northum by the statute made Anno 2. Ed. 6. Chapter 25. is to keep the County Court of that Shire in the Town or Castle of Alnewick and in none other place Secondly The Sheriff of Sussex Sheriff of Sussex by the statute made Anno 19. Hen. 7. chap. 24. is to keep and hold the Shire Court for that Shire one time at Chichester and the other time at the Borough of Lewes and so to be kept by turn for ever and every Shire Court holden there to the contrary and all things done therein shall be void Thirdly The Sheriff of the Sheriff of Chester County of Chester is to keep his Shire Court in the Shire-hall of the said County Fourthly The Sheriffs Shire Sheriffs of Wales Courts in Wales of the County of Brecknock shall be holden at Brecknock of Radnor at new Radnor and Prestene of Montgomery at Montgomery and Maghenleth of Denby at Wrixham and of Monmouth at Monmouth and Newport by turn one after another Fifthly For the County of Glouc. it may be kept in the city of Glouc. This Court may be kept in other Counties in any place of the County wheresoever the Sheriff and Freeholders please Sect. IIII. Of the Iudges of this Court AS to the
Judges of these Courts these things are to be known First In this Court which is of the nature of a Court Baron not the Sheriff nor the Steward but as to all actions and proceedings by a Iusticies or other writ as also in other Suits which are there by plaint without writ the Freeholders Freeholders or suitors to be Judges of the County or Suitors are Iudges there But as to Outlawries the Coroners only are Iudges and the Sheriff Steward and Bayliffs are ministers and therefore the Sheriff can do no act there without the assent of the Suitors and if he do an Action of the Case lieth against Action of the Case against the Sheriff False Judgement him not a writ of false Judgement as it doth against the Suitors if they give a false Judgement and thereupon they are to be amerced whether the Suit be upon a Iusticies or not Secondly There must be two Freeholders at the least or else the Court cannot be held Thirdly In some speciall writ now out of use the Sheriff is Judge there Fourthly If the Freeholders do not appear they may be Affering amearced the amearcement affeared extreated and levyed but it must be done by two Freeholders at the least and may not be done by the Sheriffs without Freeholders Sect. V. Of the Povver and Proceedings of this Court in Generall THe power in Generall of this Court is either ex officio and of it self or by commission called a Iusticies and in Justicies both cases the Freeholders not the Sheriffs are Judges of this Court and they may by their own authority hold plea of hear and determine all lesser actions as actions of debt trespasse covenant detinue account and the like and in cases of Replevin where the debt or damage is not forty shillings or upwards and no freehold is in question and by a Iusticies they may hold plea of hear and determine all actions of what value soever and notwithstanding the freehold it self being in question And this not onely between persons and parties living within the County where the defendant lives but also between persons living elsewhere out of the County for any cause or contract ensuing within the County or any transitory things In all which cases their proceeding is much after the example of the higher Courts by entring of Plaints by the plaintiff himself or his Attorney putting in of pledges filing declarations And if the Defendant appear not by processe of summons attachment and distresse upon attachment infinite till he do appear which when he doth he is to plead and so to the triall of the cause which is commonly by wager of law but by consent of the parties it may be by Jeury as it may be also where the use of the Court is so And if judgement be given against the defendant the execution is by distresse a warrant is sent from the Judges to the Bailiff to seise the defendants goods put them in pound or sell them and bring the money in Court for the Plaintiff as the custome and course of the Court is And if the Court give judgement or do any thing contrary to Law the party grieved thereby must have his remedy by a writ of false judgement And Executors and Administrators may sue and be sued here as in other Courts But we shall open these things more particularly in the things that follow Sect. VI. Of a Iusticies A Iusticies is a writ in the nature of a commission directed to the Sheriff for the dispatch of justice in his County Court in some especiall cases wherein of his own authority he cannot deal And as to this part these things are to be known First That albeit the writ doth lie in divers cases yet at this day it is very rarely used in any case but in an action of debt or some such like action of or above forty shillings in which case the Sheriff hath not power in this Court without this commission Secondly That albeit the writ be directed to the Sheriff yet are the Suitors the Judges and their proceedings alike in this as in other actions And yet in this it is a County record and so it is not in the proceedings of all the rest Thirdly The Sheriff upon this writ may not make a precept to a Bayliff of a Franchise to have his cognizance of the cause nor may any other but the Sheriff and the high Sheriff as it is held himself hold plea upon this writ Fourthly A suit here upon Remove this writ is removeable as another suit is that is without it Fifthly The Sheriff is not bound to make any return of this writ Sect. VII Of an Attorney and Pledges ANy man may make a generall Attornees Attorney to sue for or against him in all pleas in this Court. And for pledges pledges which are such as do undertake for the Plaint that they should prosecute the suit and stand to the judgement of the Court there ought to be such in this as in other Courts of sufficient men of the county but this it seems is out of use and not necessary at this day Sect. VIII Of a Plaint THe Plaint is the first entry of the persons to and cause of the action in the Court upon which all the rest of the proceedings are grounded and is thus A. B. complains of C. D. in a plea of debt of ten shillings and so as the case is And as to this these things are to be known First No Plaint ought to be entred except in case of Replevins out of Court but in full County and sitting of the Court. And yet the course is otherwise and as it seems good enough Secondly The Sheriff or his County Clark or any other by either of their commandments or in their names may not enter any plaint in any mans name unlesse the Plaintiff be present in Court in person or else by his Attorney or deputy and yet this it seems is good enough though otherwise entred but for this cause it may be removed if it be set forth Remove and moved in another Court Thirdly Nor may any man enter a plaint in the name of a dead man of purpose to get money of the Defendant Fourthly Nor may any of the Officers of the Court enter or cause to be entred any more plaints then the plaintiffe hath cause and desireth against the defendant Fifthly There must be but one plaint for one contract trespasse or cause Sixthly The plaint that is for trespasse may not be vi armis for then a prohibition Prohibition may be had to stay the suit but leaving out these words it may be brought there for a trespasse Seventhly No plaint can be heard in this Court for charters touching Inheritance or Freehold Eighthly No plaint or suit can be entred here for debt or damages to forty shillings or upwards c. unlesse it be upon a Justicies But under forty shillings it may be for
pleas are that he did not so assume or that he is not guilty a concord performed or the like Or if it be in an other Action of the Case the ordinary plea is not guilty and if it be on a warranty that he did not warrant c. And if it be in an Action of Action of trespasse trespasse the ordinary plea is not guilty also in this case an arbitrement or concord with execution tender of amends before the action brought may be pleaded And in all these actions speciall pleas may also be pleaded as the case is But if the defendant plead Frehold or forrein plea. his freeheld or forrein plea not triable there the Court can no further proceed and if it doth the other partie may have a writ of false judgement to avoid the judgement when it is False judgement given But in all these cases the defendant may if he will refuse to plead any such plea and confesse the action or let judgement go by Non sum informatus defaults by the saying of his attorney that he is not informed But upon these pleas the Triall Issue Plaintiff in most cases may take issue and put it to a Jury which is thereupon warned whereby the Court of any of these Courts Trialls are by Juries to By Jury appear to try it And these appearing the parties are to have their Challenges as in other Challenge Courts Or by consent of parties it seems it may be tryed by Jury in any case And upon some of these pleas pleaded by the defendant Wager of Law where wager of Law doth lye as upon an action of debt brought upon a contract by word without writing or detinue he may offer to wage his Law and may have it for the triall and cannot be put upon another way of triall And this is the proper and ordinary way of triall appointed by Law in all actions in this Court. And where this is admitted the Court doth appoint the defendant to do it at the next Court and set down with how many hands or other men witnesses he shall wage his Law which is taken by the Judges of the Court who do examine the defendant and his witnesses on oath and the Plaintiff also if they think fit Or the defendant if he will By witnesses may deny the debt where it is with out a deed and put it on the Plaintiffs proof and then he must prove it by witnesses at the next Court if it be so ordered and if he do then make default herein he is to be non-suit So if the Plaintiff in person be in Court where the Jury Non suit is ready to appear or give their verdict and renounce his suit or withdraw his action saith he will follow it no more or when the parties have demurred in judgement and have a day given over and at the day the Plaintiff do not appear but make default in these cases Nonsuit the Plaintiff shall be nonsuit and judgement shall be given against him for costs of suit Which shall be levied in the same manner as money recovered against a defendant is levied And in all these cases if the Judges where it is to be judged by them alone or the Iudge Iury where there is a Iury shall find for the Plaintiff they must give judgement for the debt or damage and costs of suit as the Judgement case is and if they find for the avowant in a Replevin they Costs must give damage and costs of suit or otherwise if it go against the Plaintiff or he be non-suit for not proceeding judgement must go against him for such costs of suit for vexation So that as the Court shall adjudge if the defendant be condemned by default or verdict a levarie is to go forth to levie the debt or damage and costs of suit and so if costs be recovered against the Plaintiff and hereupon execution shall be done accordingly by a Levari facias or warrant appointed to leavie the mony And upon this the Sheriffs officers or servants appointed are to levie so much of the goods of the Plaintiff or defendant the which they are to take prise and sell and therewith pay the party that doth recover his money and the costs of suit and give back the overplus But neither can the under officers nor the Sheriff nor the Court deliver over or cause to be delivered over the goods distrayned to the party that is to have the money Sect. XI Of a suit by Replevin and the proceedings therein from the beginning to the end of it A Replevin is where one What a Replevin is man distraineth anothers goods or cattell then the partie that is distrained upon giving security to the Sheriff or his depulie that he will pursue the action and return the beasts again if the taking shall be adjudged Lawfull may have this by writ to the Sheriff or the Sheriff may do it ex officio or if it be within a franchise the Sheriff may send his warrant to the Bayliff of the franchise and hereby he shall have the goods or cattels restored again As touching this these things are to be known First that he that brings this writ must have either a generall Speciall property or a speciall property in the thing as of goods pledged or the like and this must be in him at the time of the taking or otherwise he cannot have or not maintain the Replevin for them Secondly if divers mens cattell be taken they may not joyn in a Replevin but must have severall Replevins Thirdly this is grantable in hundred Courts and Courts Barons also Fourthly the Sheriff is bound to have four deputies in the County to make these Replevins and the Sheriff upon complaint of goods or cattels taken and wrongfully withheld may send his warrant by word or writing if it be out of a liberty to whom he pleaseth to deliver them and if it be in a franchise he must first send to the Bayliff of the franchise to do it which if he will not do the Sheriff himself at the last may do it Fifthly this the Sheriff doth and may do either ex officio by vertue of his office and of his own authority or by a writ sent to him out of another Court to give him command so to do Sixthly the party that sueth it out be it with or without a writ must first before he can have it or the distresses be delivered enter his plaint in the Court of the which to the end that deliverance may be made presently by a Replevin before a Court day he may enter at any time out of Court for the taking of the things and give a band of forty pound at the least to prosecute the suit and make return of the goods if return be awarded by the Court and if the Sheriff do otherwise the party grieved may have an action of the case against
in them this is not grantable It is a writ lying where a man is distrayned for any services Recaption and having that suit he is distrayned again for the same cause though the distress be for service due after the first distresse yet it lyeth not till the first suit be determined Sect. XII Of costs of suits recoverable in this Court AS to the costs of suits recoverable in this Court These things are to be known First in all suits whether judgement be given for Plaintiff or defendant such reasonable costs of suit are to be given as the Court shall set down Secondly where the Plaintiff doth not proceed or the cause doth go against him upon the triall the Court must give the defendant reasonable costs for the unjust vexation Thirdly such remedy and execution shall be made for recovering of these costs as the Plaintiff hath for recovering of the costs he doth recover in that Court against the defendant Sect. XIII Of Amercements in this Court and the streats thereof ANd to this these things are to be known 1. The Court may amerce any man for any contempt or disturbance of the Court made in the presence of the Court for in what case a man may be fined in a Leet he may be amerced here and this it seems need not be affered as all others but Afferement it is safe to do it And when any officer doth commit any default or neglect in the execution of his office and when the Plaintiff is non-suit Quia non est prosecutus Because he hath not prosecuted either at the first or after when the Jury is ready to give verdict or the Court give judgement or pro falso clamore And when judgement is given against the defendant he may be amerced And when any Bencher Iuror Plaintiff or defendant doth make default he may be amerced so also every man for his default of appearance after summons may be amerced But all these amercements upon officers for their miscarriage must be Afferement affered by the Benchers the rest by them or some others otherwise they may not be extreated they may be levied by Estreates distresse and putting in pound not by sale without a speciall custome in it and being levied shall go to the use of the Sheriff And the Sheriff must see that he leavie none of these amercements untill they be first allowed by two Iustices of the Peace Sect. XIV Of removing of suits out of this Court SUits may be removed out of this into a higher Court. And this is to be done either by a recordare or by a pone And Recordare therefore the recordare is said to be a writ out of the upper Bench or common pleas directed to the Sheriff commanding him to send a plaint that is before him without writ in his County Court into that Court from whence the recordare is sent to the end that the case may be there determined And this the Sheriff must certifie under his seal and the seal of four of the Suitors of the same Court and he is to summon the other party to be in that Court whether the plaint is to be sent by a day and a pone doth Pone nothing differ from this but that that is to remove such suits as are there before the Sheriff by writ and not by plaint and as to this these things are to be known 1. That if these be sued out by the Plaintiff in the County Court it may be had without shewing any cause at all if it be had by the defendants suit he must shew cause As first being to remove a plea in a replevin by plaint to shew that the defendant avoweth for damage fesant and the Plaintiff doth justifie for common of pasture which is a plea touching freehold and therefore should not be without writ Or that he before whom the writ depends is a favorer of him that is of the other side Secondly if any officer of the Court proceed after the removeall he may be punished for it in the Court from whence the writ to remove it came for the suit in Law is now at an end in the inferior Court Thirdly and after it is once sent away it can never be sent back again but must be tried in the Court into which it is sent Fourthly a suit is sometimes removed out of this Court into False judgement a higher Court by a writ of false judgement And this writ is defined to be where an erronious judgement is given in any inferior Court that is not a Court of record as County Hundred or Court Baron then the partie grieved by the judgement may have this writ and remove the whole Proces of the suit into the common pleas and there it shall be examined and if it be found the judgement shall be reversed and the Suitors or Judges Jurors amerced of the Court that gave the judgement amerced Sect. XV. Of the Povver and duty of the officers of the Court. AS touching the power and duty of the officers and those that act under this Court these things are to be known First the Sheriff may if he will appoint speciall Bailiffs that is others besides the common Bailiffs to execute the processe of the Court. Secondly some say a warrant from the Court by word may be good in these cases but it is not safe to trust to such a warrant but to have it in writing Thirdly the officers that have any precept to execute must do it with all care and when done or not done give an account and make a return of it especially if they take goods in execution otherwise it is dangerous for perhaps by the not return the Act of the officer may become unlawfull Fourthly in taking of goods they must be reasonable Fiftly they may enter into a close or into any house of any other mans the door being open to take the goods of any man there upon any precept Sixthly they may take the goods of any man in any place within the County in another mans house or ground as well as in his own Seventhly they are to take upon execution so much of the goods as will satisfie the execution and bring them into the next Court where they must be prised Eighthly they are not to proceed in any case after it is removed into another Court Ninthly if the Sheriff or any of his officers shall procure others to commence suits against any person and shall cause them to resort to this Court. The party attached upon any such suit may replieve his distresse so taken and remove the suit before Remove the Justices c. Before whom if the Sheriff be convicted of such procurement he shall be amerced grievously to the Lord Protector and shall answer to Amercement the partie grieved treble damages Tenthly the Sheriff his Shire Clerk or deputies shall Estreates make no estreats to leavy the said Sheriffs