not lie wholly upon some few of the said Hundreders and thus much as to the Persons Now as to the Actions which lie not Secondly as to Actions in this Court but by Original Writ no Quare impedit Writs of Right Replevin and such like come into this Court but either by Original Writ primarily or else Plaints are entred in Inferiour Courts and removed hither by several Writs which are in their own nature as so many Originals and returnable coram nobis ubicunque c. as Writs of Recordare fac loquend Acced ad Cur. Certiorar Writs of Errour and the like and upon these there can be no prosecution by Bill in this Court So that if they could not be proceeded in by Writ this Court would lose and want much of the practice and business it now hath and hath long had and I wish long may have and the same or most part of it would be brought in the other Courts of Common Law at Westm And thus you see that against some sort of Persons in their single Capacities and against other sort in their politick Capacities and against some others as men inhabiting in any Hundred and in some sort of Actions there is no other way to proceed in this Court but by Original Writ That it is most agreeable to the Statute Fourthly lately made for setting forth the cause of Action in the Writ IT hath been formerly the practice in this Court by Bill of Middles or Latitat and process thereupon to arrest in trespass generally not mentioning the cause of action therein and yet obliging the Defendants to put in good Bail to the Plaintiff's Suit by marking the backs of such Writs or Process for good Bail and giving the Sheriff notice to take good Bail to such a Sum whatever the nature and cause of action was and by marking the Roll wherein such Writs and Process were entred for good Bail by drawing a Line under the Defendant's name and writing over it bon Manucapt and then the Attorney for the Defendant ought not to file a common Bail without searching such Rolls But this hath been thought very inconvenient and unreasonable by a late Parliament that Defendants should be obliged to put in Bail to the Sheriff to that of which they understood not any thing of the cause of action which made it very difficult to such Defendants to procure Bail especially if they happened to be arrested in places where they were strangers and therefore ought the rather to be able to satisfy such Persons as would be Bail for them what the matter and cause of action was for which in this way of proceedings the Defendants never knew untill they came at the return of such Writ or Process to put in good Bail above as it is usually called that is before some Judge of this Court and then received a Declaration And if they did not put in good Bail then such Bail-bonds as were given to the Sheriff for their appearance were forthwith put in suit which mischief being seen and considered of both in this Court and in the Common-Pleas was by the said Parliament remedied by an Act made in the thirteenth year of his now Majesty's Reign cap. 2. at the second Meeting of that Parliament The words of that Act amongst other matters are these For remedy and prevention of which so great growing evils and mischiefs and also for discouraging all frivolous and unjust Suits and causeless arrests for the future Be it enacted by the King 's most excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the authority of the same That from and after the twelfth day of February in the Year of our Lord one thousand six hundred sixty and one No Person or Persons who shall happen to be arrested by any Sheriff Under-sheriff Coroner Steward or Bayliff of any Franchise or Liberty or by any other Officer Minister Under-bayliff or other Person or Persons whatsoever within this Realm having or pretending to have authority or warrant in that behalf by force or colour of any Writ Bill or Process issuing or to be issuing out of his Majesty's said Courts of the King's-Bench and Common-Pleas or either of them in which said Writ Bill or Process the Note the true cause of action is to be expressed particularly certainty and true cause of action is not expressed particularly and for which the Defendant or Defendants in such Writ Bill or Process named is and are bailable by the Statute in that behalf made in the three and twentieth year of the Reign of the late King Henry the Sixth shall be forced or compelled to give Security or to enter into bond with Sureties for the appearances of such Person or Persons so arrested at the day and place in the said Writ Bill or Process specified or contained in any penalty or sum of money exceeding the sum of forty pounds of lawfull money of England to be conditioned for such appearances and that all Sheriffs and other Officers and Ministers aforesaid shall let to bail and deliver out of Prison and from their and every of their custodies respectively all and every Person and Persons whatsoever by them or any of them arrested upon any such Writ Bill or Process wherein the certainty and true cause of action is not particularly expressed upon security in the sum of forty pounds and no more given for appearance of such Person or Persons so arrested unto the said Sheriff or Officer aforesaid according to the said Statute in the said three and twentieth year of the Reign of the said late King Henry the Sixth in that behalf made and provided I have recited this part of the Act in his verbis for that it may be of use to them that have not the Act at large and that it may be seen how expresly and to a tittle it is fulfilled in the proceedings by Original Writ For it hath ever been the constant practice in such proceedings to express the true cause of action particularly in the Original Writ and in every Writ of Capias alias and plur thereupon to arrest and also to what Sum the Plaintiff layeth his damage that so the Defendant may procure Bail accordingly And if it happen as oftentimes it doth that such Defendant either is not arrested or doth not appear upon any of the said Process taken out against him but suffers himself to be so far proceeded against as to the Exigent yet still that he may know what he is sued for there is mention made at large of the express cause of action both in the Writ of Exigent and also in the Proclamation directed to the Sheriff where it is known or supposed the Defendant doth inhabit that so he may take care either by himself or his Attorney to appear thereunto and thereby prevent if he will his being outlawed By all which it appears that
Measure the Secondly delay of Execution after Judgment had and obtained IT is very well known to all Practicers I presume in this Court that in all actions brought by Bill in this Court in which after the Plaintiffs have recovered and are ready to take out Execution that a Writ of Errour may be brought thereupon by the Defendant returnable in the Court of Exchequer-Chamber and very easie at all times to be purchased but in all actions brought by original Writ and Judgments thereupon had and obtained no Writ of Errour lieth thereupon but must be returnable in the high Court of Parliament and that not so easie to be purchased the charges thereof being very great the Fees being most or all of them double over and above what those are of Writs of Errour returnable in the said Court of Exchequer-Chamber and upon the affirmation of such Judgment in Parliament there is always very great costs awarded and taxed to the Defendant in the Writ of Errour who is Plaintiff in the action for delay of his Execution occasioned by such Writ of Errour besides no Writ of Errour can be obtained in such case but when there is a Parliament in being for no Writ of Errour can or ought to be returnable ad proximum Parliamentum in regard it would be so great a prejudice and delay to the Subjects Plaintiffs in such actions the times of convening of Parliaments being so uncertain and onely lying in the King's power as Supreme it being his Royal Prerogative to Call Prorogue Adjourn and Dissolve them when he pleaseth So that for the reasons aforesaid Writs of Errour are seldom brought upon such Judgments as are recovered upon actions brought by original Writ Nay yet farther also after all this when such Judgments before obtained by Bill are affirmed upon the Writ of Errour in the Exchequer-Chamber yet may a Writ of Errour per Stat. de Anno. 27. Eliz. Cap. 8. be brought returnable as aforesaid in the said high Court of Parliament to the intollerable delay and vexation of the Plaintiffs in such actions a thing which the common Law of England in its own nature abhors and detests it being Festinum Remedium and its property such as in some reasonable time suum cuique dare and therefore it is certainly the best way so to bring actions and after such a manner especially where Titles of Land are concerned or great damages likely to be recovered that so after Judgment had Execution may not long be delayed which is for the good and interest of the Subjects who are Plaintiffs in such actions That against some sort of Persons and in Thirdly some sort of Actions there is no other way to proceed in the said Court but by Original Writ BY the Law of this Land no Peer First as to Persons thereof ought by his Body to be taken or arrested by virtue of any Writ or Process in any Civil Cause whatsoeever But although he may not be arrested yet may an Original Writ of Pone in the nature of a Summons as the Case requires issue out of the High-court of Chancery to cause him to appear at the return of such Writ in this Court there to answer the Plaintiff in such Writ named to his Complaint therein mentioned and if the Sheriff to whom such Writ is directed do thereupon return that he hath taken Pledges of such Peer to appear in this Court according as by the said Writ he was commanded and he do not appear accordingly Then upon such return there may be had from the Filizer of the said County a Writ of Distring directed to the said Sheriff commanding him that he distrain such Peer by all his Lands and Chattels c. in order to cause him to appear and if he do not thereupon appear and such Sheriff return issues thereupon ad valentiam c. Then the said Filizer may make forth an Alias distring and also upon return thereof a Plur. distring ad infinitum untill such Peer do appear and it is the usual course for such Sheriff to increase or double the issues upon every return but if he return but small issues the Plaintiff if he pleases may move this Court that such Sheriff may return better Issues that is to say greater Issues all which Issues must be by the Plaintiff's Attorney brought into the Filizer's Office who made out such Distring and from thence estreated into the Court of Exchequer there to be levied upon such Peer's Lands and Chattels by way of forfeiture to the King for his not appearing as aforesaid And upon a nichil habet returned by the Sheriff upon such Distring there may go out a Testat distring into another County where such Peer hath Lands or Chattels and be proceeded upon as aforesaid But if in case that such Sheriff do return likewise a nichil habet upon such Writ of Pone before-mentioned then the Attorney for the Plaintiff may have an alias or rather a Testat Pone from the said Filizer directed unto the Sheriff of that County where such Peer liveth and hath sufficient and upon a return of Pledges taken as aforesaid the said Attorney may proceed thereupon by Distring ad infinitum in form aforesaid And besides such honourable Persons as Peers who for their honour are said to be à Latere Regis and are protected by Law from attaching or arresting by their Bodies in all Civil Causes as is before said There are other Persons that in their politick capacity cannot be arrested or attached such are all Corporations and Societies of men that act all under one Common Seal of their Corporation as the Mayor Aldermen c. of any City The Dean and Chapter of W. The Master Wardens and Fellows of a College and the like and any Company incorporated in the City of London or elsewhere And likewise all Hundreders in any County which are liable to be sued upon the Statute of Huy and Cry where Robberies are committed and Felons escape such Bodies of Men being very numerous and no single Person in his natural capacity bound to answer in any Action whatsoever but yet they may be proceeded against to be made appear and answer in the same manner and way as the Peers of this Realm may by Distring ad infinitum and after Judgment had any of their Goods and Chattels may be taken in Execution and if it be in the Case of Corporations they must by their bye Laws apportion the Levari upon the rest and thereby ease him or them whose Goods are taken and if it be in the case of Hundreders then any Person or Persons grieved may complain to two of the Justices of the Peace of the County wherein such Robbery was committed whereof one to be of the Quorum who have full power by the Statute of 27 of Eliz. cap. 13. to tax and rate the said Hundred for and towards an equal contribution of the damages recovered that so the burthen of the Execution may
as is said before was one of those Attornies that made the presentment Trin. 9. several Filizers entred in all 22. Rolls and in them 23 Issues general and special in some of which Gilbert Eveleigh was Attorney for the Plaintiff one that was heretofore well known unto the now Secondary he being his Entring Clerk and filed his Rolls for him as I am informed Mich. 9. the like Hil. 9. several Filizers had 27 Rolls entered several Issues and Judgments by defalt and one Issue is in a Quare Impedit between Noy the Attorney General and the Bishop of Lincoln So that you see here the Filizers are not stinted to 20 Rolls as now it is usual to leave so many for them the cheif Clerk's Rolls beginning commonly at 20 but they may go farther if their number of causes do require it Paschae 10. Trin. and Mich. prox several Issues and Hil. prox 13. Issues and Judgments by defalt and in Trin. 11. and Mich. and Hilary next the like In Paschae 12. two Issues one wherein the aforesaid Merefield enters an Issue in London wherein one George Brome was Attorney for the Plaintiff who as I have been informed was soon after that Secondary of the Court and certainly he well understood what he did or else he was not fit to be in that place who was to give directions to others in Trin. 12. Mich. and Hil. prox Paschae 13. Trin. Mich. and Hilary prox the like in one of which to wit in Hil. 12. the aforesaid John Woodward was Attorney for the Plaintiff In Paschae 14. Rotulo 7. a replevin special plita Judicium sur inde pro le avowant breve de Inquir agard Rotulo 12. Williamson a Filizer enters an Appeal de mort Trin. prox six Rolls of Imparlances Mich. and Hilary prox several Issues entred by the said Merefield and one Sommers then Filizer of Middlesex and other Filizers and Imparlances and Judgments by defalt and in some of those Issues the Plaintiffs themselves were Clerks to the then cheif Clerk Paschae 15. the like Trin. 15. the like in 14 several Issues and Judgments by defalt and in one of the defalts upon which there is a Writ of Inquiry awarded and Judgment thereupon the aforesaid John Woodward was Attorney for the Plaintiff and Woodward Senior Filizer and there also one Rott a Filizer enters process in appeal de mort Mich. and Hil. prox the like as to Issues and Judgments by defalt one wherein Harman Atwood one of the Clerks to the then cheif Clerk was Attorney for the Plaintiff and as able a Clerk as any was in his time in Paschae 16. Rotulo 19. the said Merefield enters as Filizer of London an Issue in London in ejectment inter Lloyd Hide verdict and Judgment Cecill Attorney for the Plaintiff and Antrobus one of the Attorneys that made the said presentment for the Defendant who afterwards brought a Writ of Errour in Parliament and the Judgment there affirmed and the affirmetur entred also on the said Issue Roll Trin. Mich. and Hil. the like as to Issues and defalts Paschae 17. Trin. prox the like and in the last no less than 13 Issues and one defalt in Mich. prox the like in Hil. prox Rotulo 20. the said Merefield entred an Issue in t Hunt one of the Clerks to the then cheif Clerk c. Plaintiff and Brough Defendant breve erroris super inde in Parliamento Judicium affirmetur entred also The Filizers Rolls then reached there to number 24 Paschae 19. Trin. prox the like as to Issues and Judgments by nil dicit Hil. prox Issue in Essex and tryed at the Bar and Judgment entred Paschae 21. Trin. Mich. and Hil. prox the like as to Issues and defalts and in the aforesaid Trin. Term a Scire facias and Judgment upon it Paschae 22. the said Merefield Filizer entred a Judgment in case in London inter Ingram and Inning Hewson Attorney pro Quer. and Gerg pro Defendant two very able Clerks unto the then cheif Clerk and breve de errore in Parliamento super inde affirmetur entred likewise Trin. and Hil. prox several Issues Paschae 23. Rotulo 19. the said Merefield entred an Issue in London inter Finch Wallis Hoddesdon Attorney pro Quer. who was afterwards Secondary of the Court and certainly knew what he did Trin. prox and Trin. 24. the like as to Issues and defalts in the last of which Rotulo 16. Wooddeson Filizer of Yorkshire enters two Issues wherein one Henry Thompson was Attorney for the Plaintiffs and one William Livesay for the Defendants I cannot say it was the now Secondary although I never heard of any other about that time of that name but I presume it was not he because I believe he would have informed the Attorney for the Plaintiff that he ought not have entred it on the Filizer's Roll and in Mich. and Hil. 24. divers Issues and defalts And now having passed through the Reign of that glorious Martyr let us see what was done and practised in this case in the troublesome times of War Anarchy and Confusion when all things were in disorder and turned upside down It appears that in Trin. 1649. and Hil. following there were An. Dom. 1649. the like Issues and defalts entred In Paschae 1651. Rotulo 19. the same Merefield enters a defalt for one Holworthy Plaintiff who was one of the Clerks to the then cheif Clerk this was the Term in which the Law suffered so great a change as to have all the proceedings of it in English yet then it suffered no mutation as to the entring with the Filizer so in Trin. Term following Ironmonger Filizer of Bedfordshire entred two Issues wherein one Blincoe was Attorney for the Plaintiffs he was one of the Clerks of the then cheif Clerk and kept the Files of Writs in the then Kings-Bench-Office In Hil. 1651. Rotulo 19. T. Stone a Filizer inrolls an Indenture inter Whittle and Whittle and the Filizer of Essex likewise an Issue in ejectione firmae inter Wilks and Hil. Brickwood Attorney for the Plaintiff and William Livesay for the Defendant whether this was the now Secondary of the Court or not I know not Trin. 1652. the like inter Garret and Parker An. Baker Attorney for the Plaintiff a very able Clerk and one of the Clerks to the now chief Clerk and is yet living and in Hil. prox Rotulo 16. the aforesaid Wooddeson entred a Judgment in replevin with Retorn habend a Cap. in Withernam In Paschae 1655. Rotulo 18. an Issue and Rotulo 19. another Indenture inrolled In Hil. next Rotulo 12. F. Gregg Filizer of Derbyshire and at the same time one of the Clerks to the now cheif Clerk enters special pleadings in replevin non pros super inde cum retorn habend Paschae 1656. Roll 17. another Indenture Hilary 1656 Rolls 7. 8. 9. 10. 11. several Issues and a defalt Paschae 1657. and Trin. following the like Paschae 1658. Rotulo