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i:,1
AJ3.ZI Jto-
Cw .U.K.
r 686
S 1^^ Ck X
rs
s:-
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1 11 a
A N
Hiftorical Treatife
O F
An Action or Suit at Lawj
ANDOFTHE
Proceedings ufed in the King*s Bench and Common Pleas^
from the Original Proce£es to the Judgments in both
Courts; wherein the Reajon and Vfage of the old^ ob^
Jcure2LV\A formal Parts of our IVrits and P leadings ^ fuch
efpecially as have Reference, or relate to the ancient
Method of PraStice^ as well before the Statute of Nifi
frius as afterwards, ar^ duly confidered, in ordei to
ihew from whence they arofe.
ALSO
An Account of the Alterations th^t have been made from Time
to Time for regulaiing the Courfe of Practice in the fcveral
Courts.
WITH
Such Remaris and OhfirvaU$ns^ as tend to explain and illullrate
the prefent Mode of Practice ;
AND
Pointing out fuch Particulars as v(fou\d contra^ the Prc^efdhgs^
and render them more conciji^ plain dLndJigniJlcantf and ///}
exptnjive to the Suitors.
■te
Nefcire quid anUquam natus Jis aaidtrity id eft femper ejfe puerum.
Cic.
By R. BOOT E.
The Second Edition, with Additions.
>»^— »— — — ■ Mill . -- - -
LONDON:
Printed by his Majesty's Lait^Printers;
For W, O w s Ny between the Templi-Getesy FUet-JIreHi
MDCCLXXXL
[ iii ]
THE
PREFACE.
TH E Obfcnrity and Expence which
nccefiarily attend the conducing of
a Suit at La^iv^ efpecially where Special
Pleadings are requiiite to be made, have
long been the Subject of Complaint, not
only to Clients who fenfibly, feel thcfe In-
conveniences, but like\yi^ to every con-
fcientious Praftitioner^f the Law.
The Courts at Wejiminjler have long
been fenfible of this Grievance; and no-
thing perhaps could be more agreeable to
the Sages of the Law, as well as to
clients themfelves, than to point out fonie
Method by which the Proceedings in a
Suit may be contracted or reduced into
Forms more concife, and confequcntly lefs
intricate and lefs expenfive than they are
at prefent.
To effefl fo delireable an End, nothing
will be more conducive than the rijfbur-
A 2 thenins:
iv PREFACE.
thcning the Pleadings in a Suit of that
great Number of dark and obfcure Re-
ferences to ancient Cuftoms and Things,
with which (though they are now become
obfolete, and apparently unnecefiary) the
Proceedings at Law ilill continue to be
enveloped, obfcured, and rendered unne-
ceflarily expenfive.
The following Hijiorical Treatife of a
Suit at Law, is intended, not only to /7-
lujirate and explain fuch formal Parts of
our Writs and Pleadings, biit to point oat
fuch Parts of them as, having no other
Foundation than in ancient Ufe and Cuf-
toms, it is apprehended may be very well
ipared, and the remaining Part of the
Pleac^ings thereby not only rendered more
clear, lignificant and intelligible, but at
the fame Time lefs grievous to the Client,
How far the Detail I have engaged in,
may be found fufficient to anfwer the End
I had in View muft be left to the Reader's
Judgment to determine. But, if from
the Refledlions and ObfervAtions which
are fuggefted in the Courfe of this Work,
there is Matter fufficient pointed out, to
• Ihew the Reafonablenefs and Expediency
of fuch a Reformation in the prefent MouC
of Law Proceedings, it is hoped fome
Gentleman who may be more equal to the
Talk, will improve upon the Hints I hav6
given
PREFACE. V
given, gnd more jeffedlually point out the
Manner in whicfa fuel) a Reformation, or
Amendment, may be brought about ^ and
that thofe who alone have it in their Power^
will one Day put a finifhing Hand to a
Work fo extremely neceffary and fo much
wiftied for. Till fomething of this Sort
be done, we muft ftill puzzle on in the
obfcure and dark Traits of Antiquity, in
which the young Practitioners often lofc
their Way, to the manifeft Delay of Juf-
lice, and to the no fmall Expence^of tht
Client. "J
King James the Firft was fo fenfi-
ble of the great Burthen and Inconve-
niences of the fuperfluous Branches in
Law Proceedings in his Time, that in
a Speech in the Star-Cbamber in 1614
(as, I have read in an old Tradt of y. •
Cooke s) he promifed to cut them all off,
though in Reality we do not find any great
Matter was done towards it in his Time.
And in the troublefopie Reign of his un-
happy Son King Charles the Firft (the
Martyr to the Laws and Religion of his
King lom) there was no Time for Re-
fledtion on Matters of this Sort; byt in
the Reign of King CJbarJes the fecond,
the Grievances arifin^ from henq^ were
thought fq great, tj^iaf the Courts ajt ^^/^ '
minjiery to their Hpnouf be it remembered^
took jtlj9 JVlaqtcr ii^o their Cppfiderj^tion j
A 3 and
VI
PREFACE.
and in order to remove the expenfive, un-
ncceflary, and vexatious Methods of Prac-
tice then in Ufe, they made a Rule to re-
gulate the Law Proceedings, by which,
as well as by fevcral Adls of Parliament
and fubfequent Rules, many luxuriant
Branches of this overfpreading Vine have
from Time to Time been lopp'd off.
But in doing this it is evident that ma-
ny Intricacies and contradiiflory Methods
(with refpeft to the old Grounds of Prac-
tice, as will be fhewn) were introduced,
and many Things which might have been
fpared were fufFered to remain ; Things
which at prefent render the Proceedings
in a Suit not only contradidtory, but al-
together dark and myfterious, and unin-
telligible, even, as it is imagined, to one
half of the Praflitioners themfelves ; few
of them diving to the Bottom for the
Kcafon and Meaning of their Ufe, but
contenting themfelvqs with a fuperficial
Knowledge only, juft as they find them
directed to be ufed in the Books of Prac-
tice.
It is well known that there were for-
merly various Kinds of Aftions made ufe
of upon different Occafions, efpecially in
the Court oi Common Pleas *, and the Ori--
nal Writs enlployed in fuch Aftions were
as various as the fevcral Cau/es of Actions
upon
PREFACE..
upon which they were graunded. Hence
we meet with Adions of jiffize^ Anions
upon the feveral Writs of Formedon in
Defcender^ in Remainder^ and in the Re^
njerter, &c^ all which are now laid afide,
and fupplied by others, viz. hy EjeSi^
ments, &c.
Again, the fuing out Special Originals
in the Court of Common Pleas, aqd filing
Bills in the Kings Bench, were always the
neceflary Introdudions to a Suit; and tho'
thefe are much laid afide too, (for gene-
rally fpeaking they are not ufed in one
Adion in an hundred, and when they arc,
it is more to enhance the Expence and
hurt the Parties, than for any real Ufe or
Neceffity there is, or need be, for them)
yet we continue in our Writs and Plead-
ings many formal Matters which have
Reference to them, and which (as they
are mere Formalities, are really unnecef-
fary, and tend only to render the Pro-
ceedings more intricate and expenfive)
might very well be fpared. The fame
alfo may be faid with regard to many
other Things now ufed in a Suit. '
When one confiders the great Number
of Amendments that have from Time to
Time been made in Point of Pradice, in
order to prevent the vexatious Behaviour
A 4 of
vii
PREFACE.
That fome of our Formalities are be-
come ridiculous to every fenfible Perfon, I
believe will begrantedj as alfo, that many
are ufelefs and unncceflary. Let me then
aik this Queftion, whether it be moft
prudent to continue fuch Things, which
are an Oppreflion and Burthen upon the
SubjecS, in Reference to old Laws and
Cuftoms, or to reform and eafe them by
«ew ?
If it Ihould be objeded, that a Refor-
mation of this Kind may prove hurtful to
the PraSice in general, I can only anfwer
that I am inclined to think the contra-
ry. As Things are at prefent circumftan-
ced, many People would fooner be con-
tented to iofe their Right, than encounter
with the Difficulties of the Law ; for where
is the Encouragement to a Suitor, when
after having been at a confiderable Ex-
pence in order to obtain Juftice againft
fome litigious Adversary, perhaps for the
Omiflion of fome mere Matter of Form
he (hall become in tangled in a .D^//?arr^r,
or (hall be obliged to drop his Suit, and
pay Cofts, or go through the whole Pro-
ceedings iafrefh ? Or, fuppofing he fues
for a juft Debt, he ihall be obliged to ex-
pend twice as much as the Debt he fues
for amounts to, before he ihall be able to
obtain a judgment or VerdiSt ; and after
I ke
PREFACE.
he has fuccccded thus far, he is certain of
being Money out of Pocket to carry that
"Judgment into Execution,
From fuch Confidcrations as thefe.
People are often deterred from having
Recourfe to the Law in order to recover
what is ever fo unjuftly with-held from
them. And hence it is that Attornies,
like Phyficians and Surgeons, are feldom
applied to but through mere Necelfity, and
then, not without the moft terrible Ap-
prehenfions for the Cofts of Suit.
And indeed there is but too much Rea-
fon for this ; for the Law is fo loaded with
Stamp Duties and Office Fees, that thefe,
together with Counfers Fees, are fufficient
to deter Men from feeking for Remedies
at all. In the mean Time the Attorney
lies under no fmall Difficulty to fatisfy his
Client, that thefe Fees make up the Bulk
of his Bill. Certain it is, that v/hen thefe
Fees come to be dedufted, there are but
few Mechanics who would be contented
with fo little Profit for their Induftry, as
an Attorney is ailowed for condu(Jtii)g a
Suit at Law.
It is well known that not many Years
ago half a Guinea was the common Fee tp
an Opening Counfcl, and in common Cafes
a
XI
xu PREFACE.
^Xluinea to a fuperior one, or Pleader ; and
though it is as well known now that there
is not a Gentlci^an at the Bar whg will ac-
cept of fuch Fees, yet there is fo little
Confideration in the Allowance of Cofts,
that for this, in common Cajes^ no more
than I /. II s^ 6 d. is allowed as the common
Cofts ; the Confequence is, that the extr^i
Cofts muft be paid by the Client, which,
with Execution Fees, (in all Cafes for
fmall Debts of 4 or 5 /•) make the Riemedy
worfe than the Difeafe. Is this reafonr
able ? or is it an Encouragement to Men
to become Suitors to the Courts of Law
for Juftice ? This is mentioned as a Hint
to (hew the Neceflity of a more equitable
Manner of taxing Cofts, and not as any
Rcflcdion upon the Gentlemen at the Bar.
And here I cannot but obferve, that
whilft an Increafe of Cuftoms on Goods
and Merchandife affords the Merchant
and Mechanic an Opportunity of enhance
ing the Prices of their refpedive Commo-
dities, no additional Weight of Taxes, no
extraordinary Dcarnefs of Provifions, or
any other of the NccefTaries of Life, work
any Change with refpcd: to the Attornies ;
but what was their Fee three hundred
Years ago, remains the lame to this Day.
Is not this a Hardihip upoa them ?
But
I* R E F A C E. xiii
But to return. What adds to the Mif-*
chief arifing from the prefent Intricacy of
Law Proceedings, as it refpedls the Prac-
titioners of the Law, is, that Clients, ter-
rified by the great Cofts which neceflarily
attend the Profecution of a Suit' in the
Courts at Wejlminjiery are driven into an
inferior Court within the Confines of this
Metropolis, which greatly fubftrafts from
the Bufinefs in the Courts at Wejlminjier.
In this Cbnrt, juft alluded to, poor Men
ire arrefted iot forty Sbillings *^ a (hocking
Inducement for having Recourfe to it!'
And there too upon the Service of a Pro^
cefs they are prefently run up to an ExecU'-
tion, and imprifoned for very trifling Sums,
with as much Severity as for ever fuch
great ones in the Courts above*
It were therefore to be wifhed for the
Sake of the Poor, that Courts of Con-
fcience were cftablifhed to take Place
of it, and that Matters of greater Concern
were confined to the Courts at Wejiminjier
only. Though with regard to iuch Caufes
as are not cognizable by a Court of Con-
♦ Since the publifhing the firfl: Edition of this Treatiic,
an Ad hath paiTed, whereby this Court alluded to, and all
inferior Courts are reftraincd from holdiikg a Defendant to
bail for any Sum under io/«
fcience.
Xll
\ C E.
^^ -v.l-Tt Intricacy and
. :r:: Jing the Proceed-
.. ^\ourts at Wcjlminjlerj
. Alteration can hardly
. . , unlefs a Law be en-
■,-:>ofe. Clients will have
.„.: Court, where their Suits
, X ibonell ended, and at the
X the Reformation, fo much
vr, once ellabliihed \ were our
w , .*■
,;.n> upon both Attornies ana Clients
,A-;ild vanilh; and inilead of iuch Altera-
i.C'Tii proving hurtful to the Profciiion in
,^neial, the Obloquies it at prcfcnt la-
bours under would be removed, Clier.ts
tvould lind it their Intercft to apply to
the Couits above nther than to an inferior
Court, and the Bufir.cfs a: // V.r.v;;;; f/r
would not fail of receiving a cc::f:icrubl;:
^i.«.«>-« <«• »«« ... .«- _, -».*«^ .-»^ »?-*•"* ■"■•
PREFACE. 7Ct
of Practice, as may tend to illuftrate and
explain fuch formal Parts as are ftill re-
tained in our Writs and Pleadings, and arc
the Means of rendering them obfcure, and
to many unintelligible.
Having given the Reader a fufficicnt
Infight into the Nature and Defign of the
follov^ing Work, it remains to take No-
tice of one Objeftion, w^hich perhaps may
be made to the Manner in w^hich it is
executed.
It may, very probably, be objected,
that too many common zxi^ familiar Forms^
which are to be met with in Books al-
ready extant, are here introduced ; but
the Reader is defired to confider, that thefc
Forms vs^ere introduced either the better to
explain M^hat related to them, or in order
to fliew the DiiFerence therein between
the two Courts, and were abfolutely ne-
ceiTary for that Purpofe ; fuch, however,
may be eafily pafled over.
For the Reft, I am not unconfcious of
many Faults, which may be found-in the
Courfe of the enfuing Pages ; I have not
Vanity enough to think the Performance
is fo compleat, or fo well executed as the
Subjedt deferves. If however what I have
done fhould induce fome abler Pen to cor-
rect
Xfi PREFACE.
redl its Errors, and more fully point out
the Reefon and Grounds of our Jf^rits and
Pleadings^ and expatiate more largely on
the Means of eftabli£bing the keforma-
tion aimed at, I (hall think my Time and
' Labour not ill beftowed; and that I may
deferve and hope for that Candour, which
may be necefiary to excufe the Inaccura-
cies of this Performance.
R. B.
•**^«HMM
A N
[ xvii ]
.!■ ■ n^
M t ■ W I ■ I . , II ■■ W IM
THE
CONTENTS.
THE Introduftion touching the Original
of the King's Bench and Common Pleast
Page I
The King's Bench^ the original Court out of
which the other was formed, ib.
The Judge thereof ftyled Capitalis Anglic Juf"
ticiariusy 2
The Court of King's Bench called Curia Domini
Regis ih.
Removeable with the King'^ Houfhold ib.
Caufes originally held there ib.
Common Pleas held therein ib.
County and Hundred Courts originally the Courts
for Caufes between SubjeSl and SubjeSl 3
Magna Charta made, or rather confirmed by
King Henry 3. 4.
A Curje deuounced againft the Violaters of it,
fee Note 6
Common Pleas fever'd thereby 7
held at Weftminfter Hall 8
The Study of the Common Law begun at
this Time' ^ ib^
Matters cognizable in the Common Pleas ib.
The Chief Juftice thereof ityhd JuJfkiaHus de
Banco ib.
a V \,Writ»
CONTENTS.
/
Writs therein returnable coram Juft* noftris
apud WeftmorC Page 8
Lord Cok€\ Res^fons why Common Fleas niight
be holden in the iSTZ/z^'j Bench 9
By what Means the Court .of Kin^s Bench foon
after Magna Charta beganrto take Cogni-
zance of Common Pleasy viz. firft by Origin
nal out of Chancery yjtcondily by Bill 1.0
An K^iionSupef Cdjum*^ why called, fo ib*
A "jufiicies for Debt, what 1 1
Marihal of the King's Marfhalfea, Mrho ib.
Ejc£lmenti^ fupply lUal Aftions in both Courts
An Aftion, why calkdfo 13
Th^. fyic till Judgment called an ABion ib^
1" he A£lion ends with the Judgnient ib^
i)f t{)e commencf ng m Wm f n t{^
■
By an Original Writ out of the- Chancery ib^
Next by. filing ?lBUI, thereby fuppbfing the.
Pcfendaat in Cufiody of this. Mayfli^l ib^
The Dir,ed:ion of the Bill 1 4,
Of the Pr(?rg/jr thereon iK
Why thp Brocejs alfo called a iSi// /^.
It ufed to be returned and filed before the JSi^^r
tit at iflued 15
And the Re t uf j^rccited ve^ fHe Latitat. ib*
T\\s^^L^fiiat\ 161
FiUn]^ ilit Sill th^ Ground-work of theSuit ib^
w
liCommon plea0.
By<unO^/fj»<j/Writ iffuing*utof the Chanceryi-j
The
CONTENTS.
The Form of the Original in Cafe Page 1 9
Pledges found thereon ii.
— why fo called i^.
— — taken up from the County and Hundred
Courts 18
The Ufe of Pledges, fee Note 1*9
Why the Defendant has no Addition in the
Kin^s Bencby fee Note 20
I'he Difference attending the Execution of the
Original m Cafe, 6?^. 2r
It m^es the Variation in the formal Part of
the Beginnings of the Declaration^ fee Note ib.
The Form of the Original in Caje, Trefpafs,
and Ejeiltnent 22
The Form of it in Debt, Covenant, Annuity,
Account, Detinue, and Replevin ib.
It's Ufe was not to arrejl the Defendant, but
to/ummon him 23
The Return thereof 24
6f the fubfcquent Procejfes ^ ib.
Of the Difufe of Real Pledges, and the new
Method of Praftice thei-eon by firft fuing
but a Capias, without /ummoning the De-
fendant 25
Of an Outlawry ib.
Not ufed originally in Civil Jliions ib.
But only in Fl^lvrrf^ ' ib.
An Outlaw faid xss bear Caput Lupinum ib^
In j5rd^^«'s-Timc ufed in Adtions Vi et Arrms^
26
By Stat. I J Ed. 1 . it lies in ; Account ib.
5y Stat Ed. 3 . enafted, T!hat no Man but the
^ Sheriff put an Outlaw to Death ib.
4y- 25 Edf 3* ;r lies in Debt, ^c. ib.
By 19 //. 7. in Cafe, 6fr. ib.
Of the Capias, Ali(is and Pluries 27
a 2 Of
XIX
XX CONTENTS.
* . * ' • - . ■
Of the Proclamation Page 21
How thefc Writs are now ufed ib.
The Court of iC/V/^V Bench can't proceed to an
Outlawry but by an Original Writ out of the
Chancery 28
Of the Fine upon Originals^ why 2 9
Taken on Precipe" s quod reddat ib.
Why not taken in Aftions of "Trejpafs 30
Why Matters of Debt znd Trefpa/s could not
be put in the fame ASlton ib.
When Precipe' 5 quod reddat begun to be laid
afide to avoid the Fine ib.
Refleftions on the Nature of the Beginnings of
a Suit in both Courts, as unneceflary 3 1
Filing Bills againil Prifoners, as how ufed, in
no refpeft confonant to ancient Praftice —
the Hardlhip upon them, fee Note 32
Suits are now generally ended before they are
formally begun according to the ancient
Grounds of Praftice 34
Of the Form of the Bill or Original in the
Kin^s Bench 35
Of the Bill of Middlefex, and it's Ufe 36
Of the Teftatum Bill, or Latitat 37
Of the Jc etiam introduced therein 38
Untruly faid to be Jecundum Coiifuetudinem Cu^
ria noftr^y i^c. ib.
Of the Alteration of the Latitat by it's fuppo-
fing a Bill of Middle/ex to have iffued 39
The prefent Ufe of the Latitat not confonant
to the ancient Ufe of it ib.
Of the Abufe made of the Bill of Middlefex
before the Statute of 13 Charles 2. 40
Which caufed that Statute ib.
The Statute did not anfwfcr it's Defign 4t
Not
CONTENTS. XXI
Not remedied until the 12 of George t. which
requires an Affidavit of the Debi to hold the
Defendant to Bail Page ^i
Of the Englijh Notice, when not bailable 42
Of thefe Procejfes as now ufed ib.
Of the Difference o(z\\t Ac etiam in the Bill of
Middle/ex and Latitat^ fee Note ik,
Of indorjing the Sum on the Back of the Writ
Of the Method of procuring the Original out
of Chancery by a Note called a Pracipe or
P^»^ 45
ThtjOriginal on the Precipe 46
Original on the P^;/^ 48
Pracipe for Things certain /^.
Pt?;/^ for Things not certain /^.
After Originals were returned of courfe, a C^i-
^/^j quod reddat and the Claujum f regit came
to be the leading Proceffes 49
The Forms of thefe />•
Of the Capias by Continuance 50
Of the Tejlatum Capias rb.
It's original Ufe, fee Note ib.
When Pracipe^ s quod reddat began to be laid
afide, and the Capias claujum fregit to be
the leading Procefs 5^
The Form of it with an Ac etiam according to
the 13 Charles 2. ib.
Without the Ac etiam^ and with the Englijb
Notice, according to 12 George i. 53
Of the prcfent Inftruftions for thefe Writs to
the Filazer. 54
How Originals are now made out by the Cur--
fitor thereon, fcf ^. ih.
a3 ©f
xxii 'CONTENTS.
Of tge Dcfeutiattt'jt^ptieacaiice in fU
If the Debt ao/. Special jB^/7 required P^^^ 56
In Lord WentwortVs Time 10 / fufficient ib.
The Form of the Common Bail Piece: before the
12 Geo. I. i^,
■ ■ altered by that Statute ib,
2)f tde Defen))ant- iS 9|ipear&nce fn tl^
Common pea0.
Much Matter depended on it ib.
Originally the Defendant appeared in Petfon ib.
Of calling an EJfoiny what ib.
Why the Filazery and not the Protbonotary^
figns Superfedeas's before Declaration ib.^
J^Jfoin Day, who fo called 57
Exception Day 3 why fo called ib.
^torna Brevium Dtay^ why To called • ib.
Appearance Day ib.
Plaintiff M^t^ to appear in Per/on ib.
Proceffes on Defendant's not appearing 58
By Magna Charta none were to be imprifoned,
niji per Legale, &c. ib.
It was Part of the Common Law to commit
for Contempts ib.
The Capias Mi^s and Pluries, gr€>unded on
the Defendant's Contempt in not appearing 59
SheriflF was not obliged to take B^il, unleis
Defendant fued out a Writ o( Mainprise ib.
Until 33 H. 6. 60
When Special Bail required ib.
]8y entring Ne recipiatur wi?h the Filazer ib.
Came
C H3 N T E N Y '^. j^ii
'Cunrie in on retummg ihe Capias by :Cepi Cor-
^usy fee Note . Fa^e 60
Bail tifed to be piit m, in To,wn 6 1
CommURoners to take Bail not ^ppornted until
4#.iefM. a.
Of filing Common SaU, and entering j^pfcar^
ance Oh Service of the Procefs with j£te-
glifi) Notice, fee Note why ^EngUJh Notice
Of filing "Dedarafiony and giving iVi?//V^ thereof,
6fr. rn Cafe of no Common Bail or j^ppear-
ance try Are Defendant 56
This Method contraditffcofy to the old Ruleis of
Practice ih.
m m Detwuntorit fn m mtiQ'd
A Declaration, what 68
The Difierence between the Decoration and a
Ufed to be filed by the Clerks in the King's
Bench Office /^.
Attornies at large did not file their own Plead-
ings till after the Fire of London 69
The old Methtxi oF declaring ib^
Of jfiling znd continuing it ii.
This long difuf^d, except, &f r. ii.
Of making up the Paper Book 7©
fl)f tire Declotfftfoft, atro Bertnrliig fn
tl)e comiiHHt pead*
The old Method of declaring, &?r. /^,
Why Summonitus fuit Cff At tac hiatus fuit ufed
}&^ t!ci% Prqthonotaries 7 0^71
a 4 1 h?
xxiv CONTENTS.
The Original Writ the Guide "for the DecJara^
tion Pagej2
Declaration faid to be an Exfojition of the Ori-
ginal Writ^ why ih.
No Variance was to be between the Declaration
and the Original ih.
The Original ufed to be repeated thcreiiT 73
.An Example thereof ib.
Difcontinucd by Rule Car. 2. 75
Therefore he brings his Suity i^c. why 74
Anfwered by the S^uando^ i^c. in the Plea ib.
The Reafons of the Difference of the formal
Parts of the Declarations IS^l^
Examples thereof 77, i^c.
£)rt{je(l3enue.
The Diftinftion between tranfttory and local
Aftions, when it begun, and what gave
Rife to it 90
Of changing the Venue ib.
Of the Time of laying the AElion 9 1
©f 3lmpatlanceia(.
An Imparlance J what 92
Why in the King's Bench formerly allowed in
all Cafes ib.
Why in the Common Pleas not fo ^2
Of the Entry of Imparlances ib.
Imparlances taken away 94
Of the Inconveniences which may arife from
the Ufe of it in the King's Bench 96, 97
Of t|)e piea anti pieatifn00.
A General Plea, v/hit 93
• A
CONTENTS. »y,
A Special Plea^ wha? Page pS
Of Pleadings in general 99
General Pleas introduced by Ufc i co
Of the fcveral Forms in each Court iff. &c.
Non eft faStum on a Bond in the Kin^.s Bench
jyitto in the Common Pleas . tb.
Hitto by an Executor, iSc. ioi
JV/7 debet in the Kin^s Bench ' ib.
■ in the Common Pleas ib.
in ^itam^i^c. in the King^s Bench 102
Ditto in the Common Pleas ib.
iVi7» detinet in Debt in the King^s Bench ib.
Ditto in the Common Pleas 10 j
D///0 in Cafe in both Courts ib.
Nil debet nee detinet in both ib.
Nonfregit Conventionem for either ib.
Non Affumpfit in the King^s Bench 104.
■ — in the Common Pleas ib.
Ditto by an Executor for either ib.
Not guilty in Cafe in the King^s Bench ib.
in the Common Pleas 105
in Trelpafs in the King^s Beneh ib.
— in Trefpafs in the Common Pleas ib.
in Trelpafs and Aflault for cither ib.
The common Replication to thefe ib.
Of Special Pleas 106
Of the Order of Pleading ib.
In /Abatement, vfh2Lt ib.
In Bary what ib.
Anciently reduced to a general and concife
Form, &fr. ib.
The apt and formal Beginnings and Concluftons '
of them 107
Special Pleadings, how divided 108
-•———- bow anciently called ib.
Double
x£?i CONTENTS.
J)(mbk Pleas, not anciently ^owcd Pag^ 109
• ^- why *■ ' t^jj,
' — — allowcdljy 4^ 5 i^. ^^ ii.
"Sir Mattbeio i8ii//3 Remarks an the Length t)f
"Specidi^lefadlnrgstn lib Time iro
•Xord Coke'^ Obfervations thereon 1 1 1
•Of the Length and Intricicytjf Special Plead-
ings as now in Ufc 112, .6iV.
. ©r «n 3flftte.
• An IJfue of two Kinds, in liawb and in FtiB f ^5
*— — in £tfw, what pb.
'— — in Fait or FaSy wliat • fb.
Of making up an IJJiit fn dve King^s Bemb 1 1-6
• Of the Memorandumy fte Note 117
It's Significancy i'b.
Pledges omitted, why ^.
Notes thereon ik
Notes on the A^^rds of -the Venire 118, tig
"Examples of varying the Mtmorandum 1 20, ^<.
The Dies datus^ what 120
Of the Entn-of'En Ippari^ncey when of aftib-
fequerit Term 122
The Inconreni^rces of it 1 23
f)f maMng up an W\xt (n t^e Common
ptof .
As anciently done 124
The prefeAt Method U^
• Example thereof 125
The Dies datas^ as ufed in tiie King's Bench,
not ufed in the Common Pleas ; why 1 2 6
Of the Difference in the Award of the Fenir^ ib.
No Record of Nifi prius unt41, 6?r. 1 27 , 1 34
.^ Qf
CONTENTS. am^
Of the Statute of Niji prius Page 1 27
bbfervations on the Venire y and it's Ufc i %%
It was the only Writ ufed for Trial ' 154
How the Ihbem Corf or a and Diftringas came in
129
Of continuing the Venire by Vieecomes non snijk
' Brme ij4
Df mtiinQ up tlic BfQ utUifi EoII, 4ii
By whom ancieatly done 4^6
Examples of the- prefent Method in the King*s
Bench 137^ Sc^
Ofthe^j/^V/ >3*
,Qf the Award of ^he Tfiftriv^f^ « 4 1
Notes ojn the A^oitrnifmh^^^ or J)qy in 5<w»*
Of the Nifiprlus Clauje 141
Of the i^ppofed Befault of the Jurors ^ (^c. ih.
Of the BiesMiusy (ic. i4cr
Examples tbcreo/as now \ifc4 . , 142
Why no Jecond Phciki is ufed (as is done in
the King's Bench) except, &c. ib^
^f tfte 3[utp-l^?oceire0, viz. t^e (Venire,
The Forvi of the F<w/W in thp ^/>j^'j 5^»ri&, as
now ufed 145, 6fr.
i^]'oteson it's feveral Parts 146, fc?^
^he Form of it in the Common Pkaf 148, 6fr.
Th?
Mviii C O N T E NT S.
Th^Vorm of the Dijlrin^as Page 149, 150
Notes on it*5 feveral Parts ib.
The Form of tb^ Habeas Corpora 1 ^i
The ^enor of the Dijirirjgas and Habeas Cor-
• />^r^ to one and the fame Purpofe, i^c. 152
Why they differ in Form ib.
Until 43 Ed. 3. the Venire was the only Procefs
ioxjummoning a Jury, fsfr . 1 53
Why the Dtfiringas and the Habeas Corpora
were introduced /^.
€)f Julifcesi of aiRje, anU I3ifi piiua.
y^2?w, why called fo 156
yujiices of ./(J^z^ and of Niji frius to be confi-
dered in different Lights » 59
/The Nifi frius Day, znd't)ay in \B^z;/)t efteenned
in Law as one Day for fome Purpofes ib.
. , fD( t&e Ctfal, 3iWh anti Caleis.
A 7>/<?/, what, 16 r
'the Salifications of the Jury as required by
the Writ ib.
^f c&allengfng tlje 3!ujcp.
Challenge, what 163
Challenge to the Arrajy what ^ /^.
- to the Folly what 164
«aitaii^M
The Caufes of Challenge ih,
A Twi/iV^, why called fo 165
■ ■ ■ —— is cither General or Special ib.
A General Ferdiff, what /^.
A
CONTENTS.
k Special VerdiSl^ what Page 165
A Nonfuit, what ib.
no Bar to a new Adion ib*
The Difference between a Nonfuit and a Re-
, traxit ib.
A Reiraxit muft be in Perfon 166
©f tSe Ipottea.
•
K Pofteaj why called fo 167
The Form of a P^^tf at the Affizcs, in the
King's Bench y &c. 167, j68
Notes thereon ib.
The Fi?ri» of the Pqfiea in Town for the Plain-
tiff on Default in the King's Bench i6g
— — at the Affixes for the Plaintiff on Non
AJfumfftt in the Common Pleas ib.
' in Town in the Common Pleas hy Default
170
The fame where the Defendant appears ib.
— ' for Plaintiff on Nil debet 171
— for Plaintiff in Trefpafs ib.
■ for Plaintiff in Ejetlment ib.
•w-J — in EjeSlmenty Guilty as to Part, Not
guilty as to the Refidue i!/.
For the Plaintiff on Plene Adminiftravit in the
Kind's Bench 172
How It differs in the Common Pleas ib.
For the Defendant on Not guilty in Trefpafs ib.
One Defendant guilty in Trefpafs^ the others not
173
That Teftator Non ajfumpftt ib.
Part for Plaintiff, and Part for Defendant on
/jjfumpfit ib.
For Defendant in Trefpafs oh the Statute of
Limitations 1 74
The Entry when Plaintiff is nonpros' i ib.
4 Thi:
XXIX
C 6 ^ T fi N t S.
'the M0ry in the Common Pleas Page 1^5*
■ ■ - where a Juror is withdrawn ib*
A Pofteay with z,Tales in Towh 176
" • at the Affizes with a Tales 177
Of taxing CdT^j on the Poftea^ £sff* 175^
Amerciaments were inftead of Cofts before the
Statute of Gloucefter 1 8*
This Statute the Original of Cofts de increment
ib.
The Statutes relating to Cofts ib.
The awarding Cofts ^fifcretionaty in the Court
ib.
ufed to be fettled by the Puifne Judge ib.
and a Rule made upon Non-payment ib..
What Cofts to be allowed^ what not^ 181
makes the Difference in Cofts between
. Partv and Party, and an Attorney and Cli-
ent ib.
S)f entecf ng up Hutrgment on tlie EoII
fn t&e mfng^js OScntlj.
of the Generil Beginning by Poftea ContinUat^
indeProceJfu 182
The Form ofthe jB»^ ib*
Notes there6n ib.
Of Continuances by Vicecomes non mifit Breve
J84
Cif entering up Jungment fn t^ Comntott
Why they differ, and do not begin by PdJ^ea
' Continuaio^ &^. as in the^Kin^'sMencb 185^ 6.
I The
CONTENTS. xxxi
The Form of the Entry Page 1 86
The old Form before Cofts were given 1 8 8
Why the Judgments were to be diftinguifhed
by MVa^ or Capiaiur in the Margin i^.
The Omiflion thereof, or putting one for the
other, was Matter of Error ib.
Capiatur Fines taken away 189
Or rather rendered certain by 4 6? 5 ^. tf M.
The Judgment the Voice of the Law ib.
In what Manner Continuances by Vicecomes non
mijit Breve, (^c. may be fupplied 1 90
S>t an Cjcecutioit.
An Excciiftion faid to be FruSlus et Finis Legis
192
> is a judicial Writ grounded on the
Judgment 193
Of the Ctf • Sa' ib.
Of the Ft' Fa' 1 94
Of the Elegit ib.
APPENDIX.
An Iffue in Cafe, with Special Pleadings,' /(?///?
144. grounded on trivial Circumftances, i^c.
197
Refleftions on the Length thereof, with fomc
Arguments for the Reafonablenefs of fup-
plying fpecial Pleadings by fome more eafy
and cheap Method 230
An Iffue in Replevin, with fpecial Pleadings
241
A N
. A N •
HISTORICAL TREATISE
O F A
SUIT at LAW,
S th/e following Sheets are defigned
to exhibit the feyeral Forms of Pro-
ceedings, ufed in an A£tion at Law
in the Courts of King's Bench and
Common Pleas, from the original
Procefs down to the Execution ; fo far at leaft
as may fuffice to explain iand illuftrate the
formal Parts of fuch Proceedings, and to
point out the Grounds and Reafons for the
Ufe therfcofj it will be proper to fay forne-
thingj, by Way of Introduftion, concerning
the Original of thejfe two Courts. . .
The Court of King's Bench is that out of
which 9\\ the other Courts of Law were ori-
ginally formed. It appears from the moft
ancient and authentic Hiftorkins, that in the
Times of the Saxons and Danes our Kings did
hol4 a Court of Juftice, wherein they ufed to
fit in Perfon, and to judge not only according
to Law, but alfo to Equity ; and that as Pe-
titions and Appeals became burthenfome to
the Prince, he was under a NeceHity of fub-
ftituting fome Perfon to adminifter Juftice to
his Subjefts. The Perfon {o fubftituted v/as
invefted with proper judicial Authority as the
King's Chief Juftice ;-and as there was originally
B but
An llificrical liuattije of a Suit at Law. -
but one Court for the Determination of C'r^'l
Caufes of all Kinds, {q he had in Effect ic.z
whole Power, not only of the Chief Juftice of
the Kin^s Bench, but iikewifc of the Ccmmbn
Pleas and Exchequer j centered in him for a long
Time, viz. 'till the Reign of King Richard the
fecond, (as it is prefumedj who made two
other JufticeSj and afljgned to each a diftinft
JurifdicVion, that is, one of the North; and
the other of the Soisth Part of England^ which
fomcwhat diminifhed the great Authority of
the former, who notwithltanding was ftill
looked upon as the Chief, and was accoidingly
Ihled Capitalis Anglia * Jujliciariits.
The Court, wherein ^he Chief Juftice fat was
Part of the King's Palace. It was called
Curia Domini Regis, and was rcmoveable with
the King's Houfehold. And by the 28 Edw.
I. c, c. this Court is to follow the Kins:. In
this Court all Differences which happened be-
tween the Barons, and other great Men of the
Realm, were heard and determined; and like-
wife all Caufes, as well concerning Common
PleaSy as Pleas of the Crown ; but Matters of
an inferior Nature, between Subjeft and Sub-
jeft, as Coatrafts, Debts, ^c. were then ufu-
ally determined in the County^ and Hundred
Courts, which were the original Courts for
fuch i^urpofes in thofe Days,
* JuJJiciarius — the Rcafon why "he Is talleJ Jujilaa
rim, uiid not Ju^exy^h bccaufc hi :;n:ient Times the Latin
Wcid for Uim wa«i ^Jufiicia, anil not yujliciarius, ns appe?rt
by Glanvill, lib. 2. i. 6. IcconJly, bccaul'che has his Aiith*)-
ritv bv 0«'put*iLioAi, t^i-id not 7.«/r Mciv'ilh'aius. See Bio.
And
An Ilift dried Treattfe of a Suit at Law.
And it Is beyond all Doubt that before the
Conqucft, thefe two Courts, the County
Court and Hundred Court, had long been and
then were the Chief Courts of Law for deter-
mining all Matters between Party and Party,
as well Ecclefiaftical as Civil, and wherein the
Bilhops ufed to prefide, jointly with the Sheriff;
nor can it be faid with any Certainty that there
were any other' Courts of Law fubfifting for
determining Dilputes between Subjeft and
Subjeft ; but it is obferved by feveral Hifto-
rians, that amongft other the arbitrary Pro-
ceedings of this King, the Conqueror, " The
** Bifhops were prohibited from prefiding at
County Courts or Sbire-gemots, in order to
deprive the Bifliops of their Share of the
*' Fines or Mulfts ; and that he inftituted
" other Courts, before unknqwn to the En-r
^ glifh'i which not only tended to the Incon-
** venience of the Parties, who were ignorant
** of the Rules and Praftices of thefe Courts,
but they were under the Neceflity o{ follow-
ing the Prince, wherefoever he went, becaufc
they always attended on him." What thefe
new Courts were, is hard to determine, but it
may be prefumed, one was the Court of Com-
mon Pleas (now fo called) for at this Time, it
is well known, that with Refp^A to landed.
Property there was a General Change ; and the
Nonmn Laws took Place and werefubftituted
infteaa of the Saxoa Laws ; and the Proceed-
ings were carried on in the Norman Language %
or rather that Common Pleas, and Matters with
Refpeft to Land, were drawn into and deter-
mined in the King's Court, inftead of the Coun-
ty Court, And it is very evident that molt of
B a our
An Hijiorical ICr^atiJe of a Suit at Laii).
our Law Terms are derived from the Norman
language during that Period.
About the Year 1215 in the Difpute be-
tween King John and the Barons, and upon
their adjufting the Articles of the two famous
Charters, entitled Magna Charta and Charta de
F^refta ; one of the Articles was '* That Sbe^
riffs Jhould not bold County Courts above once a
Months and that they as well as Caftellans, Co-
roners S>cc.Jbould he reftrained from holding Pleas
of the Crown ; before which Time it is to be
prefumed, that the County Court ufed to be held
oftener than twtrj fourth Week throughout the
Year as it now is, and from that Time has been
the ftated Time for holding of it. It is alfo as
xrertain that Pleas of the Crown ^3 well as Civil
or Common Pleas were held and determined
in it.
Afterwards King Hen. 3. being requefted by
the * Nobility, granted by Magna Charta, or
the Great Charter, that Communia Placita nen
fequerentur*
* Gnvift, in the Prelkce to his Readings y faith that until
Henry 3d. granted the Great Charter, there were but two
Courts in all, called the King*5 Coarts, \iz. the Exchequer
<nnd the King*s Bench ; which was then called Cnrm 'Domim
:^egisy and Aula Regis-, becaufe it followed tketCourtor
King ; and that upon the Grant of tiiat Charter, the Court
of Common Pleas was erected and fettled in one Place cer-
tain, viz. ^'^^/^/«/fr Hally'nnd therefore, after that, all
Writs ran quod fit coram Jufliciariis meis apud Weftm, ;
.whereas before they ran car am me 'vel Jufiiciariis meis, with-
.out any Addition of Place, fo that Common Pleas, if not
tryed in the County Court, which was called the Sheriffs
Court, muft of courfe have been tried in the King's Bench;
and by what has been before obferved, they ceitainly were,
'cfpecially from the Time of King William the Firft. In
Jljiort, from the bell Obfervations which have been hitherto
madt
jfn Hijhrrcal Treat i/e. of a Suit at Law. ^
fiquerentur Curiam fuamy fed' in * loco certo tene-
rentutV This Great - Charter f, or the Revival
of the Saxon Laws of King Edward the Con-
fcflbr.
made, it maty be collefted and agreed upon, that the County
Court took Cognizance of Pleas of the Grown in fome Rc-
fpedls, and alfo of Common Pleas or Plea of Land and all
other Matters between Sabjeft and Subjed until the Con-
quer ; alfo that Toon after the Conqueil, the Norman Laws
with refpeA to Terms and Services of Land took Place,
and Pleas of Land were taken up and tried in the King's
Bench, or rather they were tried heard and determined by
jiiftices appointed for that Purpofe, who fat in the King's
Bench jointly with the Chief Juftice of that Court, fo that
Pleas oi the Crown and Common Pleas were held indif-
ferently iA the King's Court or King's Bench, and ufed to
follovU the King ; alfo that it thus continued until the Con*
firmation of Magna Charta by Hen. 3d. when the Juflices
appointed for trying Common Pleas or Pleas of Land were
ordered to fit in a fixed and certain Place and not to fol-
low the King, (whkh the Chief Juftice of the King's Bench
continoed to do) and by their being thus icver'd, they be-
came a diftin^i and feparate Court, viz. a Court of Common
Pleas, fo that this Court may be rather faid to be fever 'd
from the other, than created by this ftatute, and from this
Time the County Court began to lofe great Part of its Bu-
fmefs. — The Coniideration of this may help to determine
our Judgment with refpeft to what hath been faid of late
y&ars of this Court of Common Pleas; viz. that it was
created by Mag. Ch.
♦ In loco certo, — Wefimnfttr Hall, with the Exchequer,
was the King's Palace at this Time ; the Hall was built by
King William Rufus, and the Courts of Law held there ;
and whenever the King^s Honfehold removed from it, the
Courts of Law alfo did, and f<>I!owed the King, until the
making of M. C. from which Time the Court of C. P,
by virtue thereof, remained iixt, and continued to be held
in this certain Place, notwith(b;nding the King'* removing
from it. And it has continued to he a. Place for the Courti
of Law ever fiiice, unlefs upon vnj extraordinary (Jcczfiom,
f There is a nr,tahle Remark in Hiftory, that at the
renewing the ti^o Great Charters by this King, the l^trd§
Sfiri-
^. jIn Hiftorical ^reatife of a Suit at Law*
feffor, had before been granted by King Henry
the firft, to ingratiate hinafclf with his Ba-
rons,
Spiritual and Temporal being aflembled, with eacH a light-
ed Taper in his Hand, before him in Weftminfier HalU the
Archbifliop of Canterbury denounced a Curfe againlt thofe
who ihould violate the Laws, or alter the Conftitution of
the Kingdom. After which the Lords threw down their
lighted Tapery upon tlie Ground, Crying out, So may the
Souls of thofe, who ihould violate the Charters, /moke and
jPittk in Hell, So precious were thofe Laws then elle:^med,
and are now reckoned, and it is hoped ever will remain the
Bulwark oi Englijh Libfrti^s. This Anathema was denoun-
ced May 3, 1253. There was anothef Excommunication
againft the Breakers of this Charter, denounced the 25 Ed, i .
By this lall mentioned hti (25 Ed, i.) it was ordained
that thefe two Charters Ihould be fent under the Great Seal
to all Sheriffs to be publiihed in the County Court 4 times
in the Year in full County. And to ail Cathedral Churches
to be read to the people twice in every Year. It was alfo
ordained ^* That if any Statute he made contrary to the Great
** Charter, or the Charter of the Forefl, that fhall he holden
** for nbne^\ \
It is worthy the Remembrance of every Englifhman, that
fo great was the Power of the Pofe at this Time, over a
blind ignorant and bigotted People, that after he had inter-
tiided the Kingdom and excommunicated King John ; ab-
•folved his Subjefts from their Oaths of Allegiance and not
X)nly depofed the King but abfolutely gave away his King-
dom to Philip of France, and ftirred up the Barons to aid
Philip by making War againft their King ; but that King John
no fooner made Peace with the Pope, by a mofl fhameful Sub-
^iffion in refigning his Crown, without the Confent of his
rPeopIe, and receiving it again from Pandolph his Legate
to hold as a Feudatory of the Church of Rome, and alfo
itgreeing to pay a very large Sum of Money j but his infal-
Jihle Hclinefs then changed Sides ; Jind not only abfolv^d the
jKing and excommunicated the Barons, but when the Char-
ter of Liberties was fliewn to him, for which tliey contended,
.He cry'd out. '* What, do the Barons of England cndea-
■VQur to dethrone a King who has taken upon him the holy
Cro{s
An Hjjiorical ^rcatife of a Suit at Law.
rons, in Prejudice to his elder Brother Duke
Robert^ and afterwards by King John, and was
a Bone of Contention between the Kings and
their Subjects for near 200 Years j being fome-
times granted, then recalled, not being fully
confirmed to the Subjeds until the 9th of this
King.
By this Aft, or rather Charter of Englifh
Liberties, (it not being deemed an Aft of Par-
liament, but a new Declaration, by this King,,
of the old fundamental I>aws of the Land or
Liberties of the Subjeft) the Court of Common
Pleas was fevered from the King's Bench, (fo
called from an old Saxon Word, Banc, fignify-
ing an high Seat whereon the Kings ufed to
fit) ; for before this Charter, all Pleas were held
indifferently therein, and confequently the
Common Pleas did. follow the King, Ubicunqui
fuerit in Anglidy with the Court of King's
Bench ; and though fome hive been of Opinion
that the Court of Common Pleas was created by
Magna Charta, yet by the Proyifion in the next
Chapter, viz. Et ea qu^ per eojdem, (f. Juftici-
arios Itinerantes) proper Difficultatem aliquorum
Articulorumy terminari non p'ojfunt, referantur ad
^ufttciarios npfiros de Banco et ibi terminentur, \x
is manifeft that at the Time of making of Mag^
na Chart a there were Jujiiciarii de Banco \ which
mufl, as my Lord Coke obferves, be meant of
the Commcn Plea:. This is eafily reconciled,
I I
Crofs and is under the ProteSiicn of the Jpojlolk See, and
would -they enforce him to trd.n&[er f^e Domin/ons o^ the Ro-
man Church to, others ! By Saint Peter this muil not go unpu-
nifii^^d.' And then by a definitive Sentence he damn*d and
Cai'i'^red for ever the Charter of Lihertief, and fent the King
a Bull conr^finlng that Sentence at large. See Echard, &c.
B 4 by
9 An Hijiorical Treaiife of a Suit at Law.
by confidering that Ju/liciarii de Banco ufed to
fit, and all Pleas were held indifFerently, in one
ind the fame Court which was the Kings bench \
but after that Charter was granted Common
Tleas were fever'd and held apart, and became
the* Btifineifs of a diftinft Court, vvz. of the
Court of * Common Fleas.
At this Time, 'tis faid, began the Study of
th-e Common Lawy and the Chief Jnjiice of the
King's Bench was no longer filled Capitalis
Angliie JuJticiariuSy but Capitalis Jujiiciarius
ad Placitd coram Rege tenenda^ vel Jufiiciarius
de Banco Regis ; and the Chief fuftice of the
Cofnmm Pleas was Itiled, Jufiiciarius de Banco.
The two Courts being thus fcparated, the
Kings's Bench was now efpecially exercifed in
criminal Matters and Pleas of the Crown j and
the handling of private Contracts, and civil
A<5lions, was left ^ to the Court of Common
Ple(?Sy which feem, by the 12 £s? 13 Ch. of
M. C. to be efpecially limited to this Court,
and the jr/;7^'j Bench to be thereby reftrainea
, fronfi holding Pleas thereof:- and therefore,
afterwards, all Writs returnable in the Common
Pleas were returnable Coram Jufticiariis nofiris
apnd Weftmonafterium j but Writs returnable in
the Kings Bench continued to be returnable
Coram Kegey vel Coram nobis ubicunque fuerimus
in ^nglid.
' Therefore, wheli we read at this Time, (as
.we-often may) that ** The Suits in the King's
* The Common Pleas was anciently To called j^nno 2
Ed-w,'^. f. II. becaufe, faith Camden, Communia. P/acita
inter Subditos ex Jure nofiro,, quod Commune ^oocant, in hoc
difceftantur,
''Bench
An Hijiorical Trentifs of a Suit at Law.
^^ Bench ^ttt orhinally Suits for OffcRces only,
^' and Matters that were againft the Peace of
" the Realm, (Sc.'' here the Term originally
mud be underftood to mean ifnmediately after
Magna Cbarta, for before the making of thjji
Statute (fays my Lord Coke) Common Pleas
might have been holden in the King's Bencb^
and all Writs were returnable in the fame Bench i
and becaufe the Court was holden Coram Rege^
and followed the King's Court, and was re-
turnable at the King's Will, the Returns were,
Ubicunque fuerimus injfnglid; whereupon ma-
ny Difcontiniiances enfued, great Trouble was
given to the Jurors, great Expence to the
Parties, and great Delay of Juttice.: for which
Caufes this Claufe of Magna Cbarta was made.
And the Pleas of the Crown were divided into
High Treafon^ Mi/prifion of Treafon^ Petty Trea^
fony Felony y &c, and were limited to this Court,
becaufe contra Coronam et Dignitatem Regis ; fo
that of thefe the Common Pleas cannot hold
Plea. But to fhew that Common Pleas may be
holdien in the Kings Benchy my Lord affjgns
thefe Reafons, viz. ift, It is. to be obferved,
the King is out of the' Statute, and may fue in
that Court j idly. If a Man be in Cujlody of
that Court, any Perfon, may charge him with
an A5lion therein for Debty Covenant ^ or the
like perfonal Aftion, becaufe he that is in
Cujiodyy ought to have the Privilege of that
Court ; 3dly, Any Aftion that is ^are Vi eJt
Armisy where the King is to have a Fine, (of
which hereafter) may be fued in that Court ;
4thly, Replevins may be moved thither ; 5thly,
Albeit originally the King's Bench be reftrained
by this Aft to hold Plea of any Real AilioHy,
yef by a Mean it may, as when removed thi-
2 thcr
lo AnHiJlorical Ttreatije cf a Sail at haw.
*
ther by a Writ of Error from the Common
PleaSi &CC. This leads us to fliew by wh^^t;
Means the Court of King's Bench, foon after
the making of Magita Charta, drew to itfelf
the Cognizance of Civil AEtions, as at this Day,
notwithftanding that Statute.
Firft, as the Court of Common Pleas had it's
Jurifdi6tion by an origi^ial Writ out of Chancery,
16 (after the fettUng-that Court at Wefiminfter,
"which became the foie Court for Civil Mat-
ters, and by which, great Variety of Bufinefs,
and Profit accrued to it) the Court of Kings
Bench y in order to hold Plea of Civil Aft ions,
very foon claimed a Right to hold Pleas of
Aft ions of Trefpafs * on the Caje, by the like
Original, being made returnable therein \ z
Trdfp^/s /uper Cafum, being confidered, in it*s
'Nature, to be an AEiion ofTrefpafs-y and all
Trejpajfes being contra Pacem, tht King's Bench,
^by this Means, afiumed the Cognizance there-
of.
' Secondly, As to Pleas of Del?t f, and Real
Anions, or Pleas of Land, they for fome Time
* It was called an A<5>.ion Sttper Caju?n^ bccaufe the
Original was framed and adapted to the Nature and
Circumilances of the Cafe, according to the Statute Weft.
2. 13 Eii: I, i^c,
f Fitxherh. N, B, fo. 119, h, i£ k. declares that
there is no Writ in Law fcr Debt, but a Jufticies, which
is a judicial Commiffion to the Sheriff to uetennine the
Matter ne amplius inde Clamorem audiamus ; io that the
King's Bench ought not to be troubled with the Matter at
all ; or, if by Original, in the Common Plcas^ Is not the
Original ]fv:ii' c. Summons? And A7/c- in -^^/. Bre'v, fo,
4 'I'it. Com, Bank, declares, that Su?Hmons, Attachment,
and Diftrefs, fuccelfively diitind 15 Days, is the only i'ro-
.cefsat Common Law for Debt,
longer
An HificrUal Tuatije of a Suit at Law. 1 1
* •
longer continued cognizable in the Commcn
Pleas only i for, as to Debt^ that being certain
and denriandatory, it could riot come under
the Title of an Aftion Super Cajum^ and con-
fequently the King^s Bench could have no Pre-
tence for a Writ to be returnable therein, to
compel a Perfon to appear in fuch an. Aftion :
therefore, at length, it became the Method of
the Kings Bench, in order to take Cognizance
pf Deh ijkcwifc, to file a Bill againft the Dr-
fendanty thereby fuppofing hinri to be already
in the Cufiody of the Marjhal of the King's
Houftiold, (if not really fo) in which Cafe tae
Tlaintiff had Liberty to declare againft him
there in Debt, rather than xht Marjhal fliould
have his Prifoner taken from him, to be charged
in another Court $ we may obferve, that one
of my Lord Cokeys Reafons, which he afligns,
why Common Pleas might have been holden in
the King*s Bench, is, that if the Defendant he
in Cufiody of that Court, &fr. and indeed this
ufed to be the real Cafe at firft, and it was
•not grounded on a Suppofition only, as after-
wards it was ; and this, at length, introduced
the feigned one; that is, the now prefent Me-
thod of declaring againft a Defendant in the
Kings Bench, as being in the Cujlody of the
* Marjhal of the King's Marjhalfea. And the
• Marjhal [Marf/caHus] of the King's Houfe, other-
^ifc called Knight Marjhal y ufed to cxercife his Autho-
*rity in the King*s Palace, in hearing and determining all
•Pleas, and Suits, between thofe of the King's Houje and
Perfons within the Verge, and punifliing Faults committed
there, fee i8 Ed. 3, &c. and Marjhedj'ea was the Court
ex Seat of the Marihal. Tlie Marjhalfea Prifon, in South-
nvarky is of late Foundation, though perhaps derived froM
the former.
Proceedings
.. * • ...
i± An HiJlpricdT Tredtife of a Suit at LwJO.
Proceedings by the Original our of Chancery in
Anions Super Cdfiimy as at firli ufed in the
Kings- Bench i isJric to He KkieWife fuf^plied by
t&is very Metjipd of declaring^ iiid the Origi-
nal in fuch Cafes became tor he^ difcontiriiied.
H^nce you fee iarofe Adtions' 6ri the tafe iil
•il^e. King's Bench y from hence Jli^g Bills, and
(declaring againft the 'Defefidanty as fn Cujtody
etf the Mar/hat, ;
,.; As to Real A(5tions, or Pleas of Land, thef^
fOpW^ued fliir longer cognizable only in the-
pmmon Plea^, by- Writs b( Right, Writs of
^ze, aiid other m^V;/t7/WHcs /iffu in of
Chancery, and ft^urnable therein ', but thefe
being' now generally difufed; "by Ejeilments
.taking place of thefe Real ^ABions i dnd as
lEjeSlments are Anions of Trefpafs, (at fealt
grounded on fupfiofed Trefpafles) and id can-
$ra P^r^;»j they confcquently became lilceWife
cognizable \nth6^ Kings Bench \ 'but this is ftitl
upon fuppofihg* the Defendant in Cujiody, (^c.
for that ia.the Ground- work of the Cau'fe de-
pending inei;e, uhlefs it is by Orignal om o(
Chancery. So that, at prefent,;the CoUft of
Common. Ple^S feems to have rid more to do in
keal A^iions, (except in paffingF/Wj and Reca-
r^eries) then the Court or Kings B^nch.
The EjeVlione Ferma's, td recover the Pbf-
feflion, became- frequently -in Ufe \n Henry the
Eighth's Time, and is now the moft com-
tnon Means of trying Titles to Land, inftead
•of Real Aftions \ from which Time the Courts
of Kings Bench and Common Pleas feem to
have had a concurrent Jurifdiftion in all Civil
Matters except as to Pines and Recoveries, as
^t this Day.
Ah Hijiorical treatije of^ .Suit «/ La^. 1^
An AftionY^^^*^ agUur de Injuria) Is defi-
fied to hty^yliiight of jprqfecu/ing to Judgment
for what is due toOnisJelfi or, A legal De^
mand of Om's Right. And it is of two Kinds,
btie that concerns Pleas of the Crown, the
other which concerns Common Pleas. And
this .of Common Pka^ is diyided into Aftipns
Ueflil, JJerfonal, and Mixed,
The ''5'«//, .6r following the Profecution un-
til Judpnefity n regularly called an A£iion, but
not afterwards; and therefore it is, that a
'Rehaje d( H'll Anions is ndt a Releafe of an
Execution^ becaufe the Execution doth "begin
after .the .^5/^ff. doth end. . The Foundation, of
the Anion is an original Writ, and doth deter-
mine by. the Judgment; but Writs of Execution
are called Judicial, heczufc they are grounded
upon the Judgmeftt.
M tU comuieitcins: an asion fn t^z
miiff'iB T5enc().
The Coinmencement therefore of an Aftion
in 'the King's Bench was, at firft, by an original
Writ out of Chancery y in like Manner as was
ufed in the Common Pleas ; or elfe it was by
-filing a Bill againft the Defendant ^ both which
Methods ftill continue to be made ufc of, but
the common Method is by Bill.
If the Aftion was commenced by Bril, the
Defendant was, and now is, fuppofed to be
* J^h nihil aliud eft quam Jus profeqitendi in Judicium
qucd ftbi djtetur. Co. Lit. Jilicn n' ft auler Ckofc que
lojM^ Dvnar.d de fen Droit,
' ■ in
l4 An Hijlorical freatife of a Suit/at Lav).
in the Cujiody of the Marjbal of the King's Mar-
Jbalfeuy as before obferved. The particular
dd Diredion of this Bill is loft by Difcontinu-
ance, though it is reafonable to fuppofe it was
to thisj or the like Purpofe :
To the lujlices of our Lord the Kingy before
the King himfelf
B. to wit. A. B. complains of C^ D. being in
the Cuftody of the Marjhal of the ^^fjhal-'
fea of our /aid Lord the King, before the
King himfelf. For this, to wit, That where-
as, &c. fetting forth the Complaint, or
Caufe of Adtion.
Upon the filing this Billy a Procefs uftd to
iflue to fummon the Defendant to appear
before the Lord the King, on (a certain
Return Day) wherefoever he Jbould then be in
England y to anfwer the Bill. This Procefs was
called a Bill of that County wherein the Court
then refided, (as at prefent it is called a Bill
of Middle/ex) becaufe the Marjhal y being an
Officer of the King's Houfhold, (in whofe
Cuftody the Defendant was fuppofed to be)
was then in that County, viz.
Middlefex, to wit. It is commanded the ihe-
^^ffiJhat he take A. B. // he be found in
his Bailiwicky and fafely keep hhuy fo that
he may have his Body before cur Lord the
Kingy on wherefoevery (sfc. to
anfwer to CD. of a Plea of Trefpafsy and
that he have there then this Precept.
ByBilL E •
This
An Hijlorical Treatife cf a Suit at Law. ig
This fhort, and comniandatory Proccfs
was figned per BilLm, (to fhew the Suit was
by a Bill filed, and not by Original) and
with the Nanne of the chief Clerk ajftgned. to
inroll Pleas in the Court before the King himfelfi
and it iflucd upon the Bill'% being filed : but
in cafe the Defendant had niade his Efcape,
and was not to be found in that County,
(which was fuppofcd to be the Cafe when the
Defendant lived in any othqr County) then the
Sheriff returned the Writ with Non eft inven-
tus J upon which a fecond Writ iffued into
the County where the Defendant lived or was
thought to be. This fecond Writ was called
a Teftatum, but it afterwards gained the Name
of a Latitat^ from that Word therein. Cum
Teftdtum eft qucd Latitat, ^c. and is in the
Nature of a '^Veftatum Billy and in this fecond '^
Writ * of Latitat^ the very Return of the Bill
ufed to be inferted therein, inftead of the Words
" jit a certain Day nozv paft, &ff.'* till which
Time the Latitat could not ifTue. Afterwards
it became the Method, firft to fue out a Bill,
and to get it returned of Ccur/e by the Sheriff,
and then to fue out a Latitat ; and this Me-
thod continued (as 'tis prefumed) along Time,
(7. e. until about 90 Years ago) when for
cafing the Subjeft, and for expediting Juftice,
(as it was called) it was contrived to put thefe
two Writs in one i fo that the Defendant might
be attached in any other County than that
^vherein the Court rcfided, without firft fuing
out and filing the Bill of Middlefex. And this
was done, by only fuppofing in the Latitat,
that a Bill had iffued, and was returned, Ncn
eft inventus, and filed ; as the Latitat itfelf now
plainly Ihcws, viz.
GEORGE
J 6 An Hytorical freati/e of a Suil at Law.
%
.. GY.O^G'^ the "Third, &c. ^o the Sheriff of
B. greeting. Whereas we lately commanded our
Sheriff of MiMXtkx^ that he Jhould take A. B^
and CD. if they might be found in his Baili-
wicky and keep them fafely, fo that he Jhould
have their Bodies before Us at Weftminfter, at
a certain Day now pait, to anfwer to E, D. in
a Plea of l^refpafs \ and our f aid Sheriff of Mid-
dlefex at that Day returned to Us, That the
aforefaid A. an4 C are not found in his Baili"
wick: whereupon y on the Behalf of the f aid 'E^. it
isfufficiently attefted in our Court before Usy that
the aforefaid A. and C. do run up and downy
and fecret themf elves in your County. Therefore
we command yoUy that you take themy if they
fn^y be found in your Bailiwicky andfafely keep
themy fo that you may have their Bodies before
us at Weftminfter, on next after
to anfwer to the aforefaid E* of the Plea afore- ^
faid'y and that you have there then this fp'rit.
Witnefsy W. Lord M. at Weftminfter, the
"Day of in thefirft Year of our Reign.
Lee.
jfi. B. and C. D. you ar€ ferved, ^c. Vipofli,
Though this firft Procefs is called a Billy
(in all Probability from the Words per Billam
at the Bottom, to fhew it is grounded on a
Bill filed; and was not by an Original out gf
Chancery) yet this is not that Bill, you fee,
which fuppofes the Defendant to be in the
Cujiody of the Marjhaly &c. This Billy or
Procefsy is a Summons only for the Defend-
ant to appear, and anfwer the other; which,
.conicquently, was filed before this Procefs
iflucd. Nor is this called fimpLy a.jB///j but
An Hiftorical Treatife of a Suit at Law. 17
a Bill of Middlefexy to diftinguifh it from the
original Billy or Declaration^ fwhich in this
Court is called a Bill) and uled to be filed
before the Procefs iflued, or againft the Return
thereof: and fuch a Bill is ftill prefumed to
be filed, to warrant every Declaration in this
Court, (though it is never filed now, but of
Neceffity, unlefs it be againft Prifoners, or At*
torhies and Officers of the Court) and upon
the Defendant's Appearance, the Declaration
is received as a Copy of it only. See Styles* s
Prall Reg. 210. where the filing fhe Bill is
faid to be the Ground-work of the Caufe de-
pending; and is, as the Original in the Common
Pleas, which gives the Court a Jurifdillion to
hold Plea of the Matter therein complained of.
Having feen the Original and Nature of the
Billy by which a Suit was, and is now ufually
commenced in the King's Benchy and of the
SummonSy that is, the Bill of Middlefex ; let us
fee how a Suit ufed to be, and is now begun
in the Court of Comjnon Pleas.
Df tfie Cottimencemrnt of an aaff on in tlje
.Common Ipleas.
Since Magna Cbartay the Gommencement of
every Suit in the Common Pleas (unlefs againft
Attornies and Officers of the Court) is by an
original Writ ifTued out of the Court of Chan-
cery \ which, by it's being made returnable
therein, gives the Court a Jurifdiftion to hold
Plea of the Matter therein fpecified; (as it
does the King's Benchy when made returnable
in that Court) for though this Court was fevered
from the King's Bench by Magna Chartay for
the trying of Common Pleas ; yet it had not an
C Au-
1 8 ^n Hiftorical ^reatife of a Suit at Law.
Aut^jority thereby to prpceed in fuch Matters
ex Officio ; but there was from the Beginning
a Precedent for it's Proceedings, and Rules of
Pradice \ and that was the County Court ; now
as the Sheriff in his County Court could not
take Cognizance of a Plea of Debt, or Dama-
ges, above forty Shillings, without the King's
Writ ; therefore in every fuch Cafe, a Writ
ifluedout of the Chancery direAed to the She-
riff to give him a Jurifdiftion to hold Plea
thereof, and was the original Writ for trying
fuch Caufes*: So the Common Pleasj being de-
figned to be a Court of a fuperior Nature to this,
in all Matters of a civil Nature, between Sub--
je6t and Subjeft, required fomcthing in every
fuch Caufe to give it a Jurifdidtion to proceed
therein ; and this was done, by taking the like
Original Writ out of Chancery y as was ufed for
the County Court, but made returnable before
the Juftices of his Majefty's Court of Common
Pleas at Weftminfter ; the very ifTuing of the
Writ, fuppofes the Caufe of Aftion to be above
forty Shillings, and alfo that the Court ought
not, or rather, that it is beneath the Dignity of
the Court to take Cognizance of any Thing un-
der 5 and it feems that much of the Method of
the Praftice of t;|tc County Court was taken up
by this \ for Inftance, at this Time the old Law
, oi Frankpledge *, as cftablifhed by King Alfreiy
• I '• — ^— Ml 111 I 1^— — — — ^^^— — ■«»•
* It is obfervable that though the Law of Frankpledgi
is difufed arobfoletc ; yet it was never legally fet afide :
therefore the Summons grounded on the Plaint in the
County Court very reafonably continues the old Fonn> vf«*
Berks, to ijoit, W,E. Efq\ Sheriff of the County afortfrnd^
To the Bailiff of the Hundred of O. tfW R.S. jwy B^liff
jointly and feverally greetings Becaufe h^B. at my Cmirthdd.
4
An Hijtorical Treati/e of a Suit at Law. x^
ftill prevailed in all the Kingdom^ and therefore
the Original was framed in purfuancc of it, and
Pledges to profecute ufed to be returned there-
on. Now the Method of procuring this Ori^
gintilv^2is, by making a fhort Note to the Curfi*
for of the County, which Note was called a Pri^''
cipe, or Pone. Thefe were varied according to
the Nature of the ASlion ; zn^four Defendants,
and no more, were to be inferted therein : And
upon this, the Curjitor made out the Original^
and gave it to the Attorney j under Seal. The
Original in Cale run thus :
CHARLES, hy the Grace of God, &c. To
the Sheriff of Berkfhire, greeting, if A. B.
makes youfecure to profecute his Claim, then put
C. D, late of Wantage, in your County, Teoman, •
hyfureandfafe* Pledges, that he be before our
Jujiices at Weftminfter, in eight Days of St.
for the County aforefaiJ, complains againft CD. of a Plea
of Trefpajs on the Cafe ; and hath found Pledges of profecu-
ting and io forth^ Therefore I command you and each of you
that you fummoUf &c.
♦ Pledges.— jP/pg-H dicuntur Perfona qui fe ohligant ad
hoCf ad quod qui eos mittit tenehatur. The Reafon of theie
Pledges is fet forth in the Writ* and they afed to be
aflually found, and ftand Securities to anfwer the Fine ;
9Ad alfo fuck Coib and Damages as the Defendant or
Tenant fhould be put to in ail Perfonal or Real A<^ons.
Afterwards they were only fbtind in Real Actions ; but as
thefe came to be difufed* they were, and are now, become
feigned Pledges, and ufed only as Matter of Form, to
agree with the Writ, and iignify now nothing, unlefs to
ihew what the Pradice once was« It is faid, that if the
Plaintiff was a poor Man, and could not find Pledges, he
pledged his Faith, and then the Writ run, ^'Ifjf.R, JbM
** make you fecure H profecute hit Claim by his Faith, hecauft
bt it poor, then put, &c."
C 2 Hilary
ao An Hijlorical Treatife of a Suit at Law.
Hilary, to anjwer to the Jaid A. B. in a Plea^
that * whereas the Jaid CD. on the lotb Day
of December in the Jeccnd Tear of the Reign j
&c. (fo on, reciting the whole Complaint or
Declaration in the Writ) to the Damage of the
Jaid A. B. 30 /. and have you there the Names
of the Pledges^ and this Writ. Witnejs Ourjelf
at^ &c.
The Original J we obferve, was twofold;
firft, for the Sheriff to take Security from the
Plaintiff to profecute his Suit, ftfecerit teje-
curum, £5?f . and then to put or fummon the
Defendant, tunc pone^ C. &cc. nor indeed could
the Sheriff even fummon him by good Sum-
moners (as the Method then was) except the
Plaintiff had firft indemnified him by giving
good Pledges, that his Claim was juft as the
Words of the Original did import, viz.Ji A. B.
fecerit tejecurum de clamore Juo profequendo tunc
Summoneas CD. per bonos Summonitores^ &c.
which fhews what excellent Provifion the Com-
ilion Law made to prevent frivolous, vexatious,
and grovindlefs Suits; nor was itlefs careful in
fecuring a Man's juft Right and Property;
and this was taken up by the Courts of King^s
Bench and Common Pleas, from the general Law
* In the Original, the Complaint, or Declaration, is
fully fet forth, that the Defendant might know the
Canfe of J£iion ; but in the King*s Bench it is fet forth
in the Bill filed, as that is the Original there, to which
the Defendant, by the Bill of Middle/ex, was fummoned
to appear and an^er ; aud he being fuppofed to be al-
ready in the Cuftody of the Mar/htd, there was no Occaiion
for any other Addition : and we may fuppofe this is ftjll the
Reafon why no Addition is given to the Defendant there,
as it is done in the Common Pleas m
I of
jln Hijiorical Treatife of a Suit at Law. 1 1
of * Frankpledge^ then in Ufe, whereby all the
Freemen in the Kingdom were formed into fuch
admirable Communities, and Fellowfhips, that
all the Members thereof were Pledges for each
other, and refponfible for one another, as well
in Cafes of private Debts and Contrafts, as for
public Peace and Security ; and therefore no-
thing could be bought or fold, but in the Pre-
fence of two Vouchers, at lead, of the fame
Hundred or Community ; by which you fee
the Common Law aimed as well to prevent
the committing of Wrongs, as the providing
Remedies for Wrongs, when committed. And
hence on good Reafon, Pledges de Profequendo
•were introduced, and aftuaHy given by every
Plaintiff in this Court, on his commencing
every Suit,* before the Defendant was fum-
moned or attached to appear, ,
The Original being made out, it was given
to the Sheriff to be properly executed, and
returned ; there was this Difference attended
it : In J Cafe^ Trefpa/Sj trover ^ and Ejeilmenty
an Attachment of the Defendant's Goods, by
the Sheriff, was the firft Procefs on the Origi-
nali in which Cafes the Defendant was hurt ;
therefore here the Writ commands the Sheriff
that he fhould take Pledges for the Defendant'^
* Omnis Homo out njolueritfe teneri pro liberoyfit in Plegio,
ut Plegius eum hah eat ad yufiiciam, Ji quid oj^'enderit , &c,
was the Law of William the Couqueror.
X It is from this, that the formal Beginnings of the
Declarations in this Court vary as they do, for they ftill
refer to this Pra&ice. For by the Declaration in Cafe, ^c,
it is faid the Defendant nvas attached to anfwer. And in
Pebty ^r. it is thereby faid that the Defendant was Jum^
tnoned to anfwer, fcfc . V, under Declaration.
C3 Ap-
22 An Hiftorical ^rtatift of a Suit at Law.
Appearance ; but in 'Debt^ Covenant^ Annuity^
Account y Detinue^ and Replevwy the Sheriff be-
gun by fummoning, or warning the Defend-
ant to appear, in which Cafes the Defendant
was not hurt, in the firft Inftance ; and there-
fore here there was no Command in the Writ
for the Sheriff to take Pledges of the Defend-
anty but in every Cafe the Sheriff was direfted
by the Writ to take Security from the Plaintiff
to profecute his Suit. The Writ run thus in
Cafe J ^reffafsy and Ejeliment :
CAR. &?r. yic. B. faPtem. Si A. fecerit te fe-^
cur urn de clamor efuo profequend' tunc pone per
Vadios et Salvos Pleg. B. C. nuper de^ i^c.
quod fit coram Juft. nojiris apud Weftm' in
Oft. &?r. ad refpond" A. D. quare cum, (ifc.
(vel quare Vi et Armis, 6?r. ad dampnum^
6f r. ut dicit Et habeas ibi nomina Pleg^ et hoe
Breve. T^efie^ (sfc.
And in Debty Covenarft, Annuity, Account^
Detinue^ and Replevin^ the Writs were thus,
viz.
CAR. &?r- Vic. a. far tern. Precipe C. D. nuper
de, ^c. quodjufte, fcf^. reddat A. B. 50 lib.
quas ei debet et injujie detinet ut dicet Et nifi
fecerit et pr^d* A. fecerit te fecurum de cla-^
more fuo pr of equend" tunc Summoneas per bonos
Summonitores pr^ed' C. quod fit coram Juft.
noftris apud Weftm' in 06b. fffr. oftenfurus
quare non fecerit Et habeas ibi fum" et hoc
JSreve^ Tefte^ i^c.
Only
An Hiftorical Treat if e of a Suit Ht Law. ft 3
Only in Covenant it was, quod teneaty &?r.
Conventionem, isc. And in Replevin j quo J
jujie etftne Delatione Replegiari fac- A. ^c.
However, notwithftanding this, the Sheriff
ufed to take Pledges in Debty isfc. for unlefs he
did, it was thought t^ere was not fufficient Au-
thority from the Return to warrant any further
Procefs. In neither Cafe originally was the 5^^
of the Defendant arrejied, fo tender was the
Law of a Man's Liberty ; unlefs the Sheriff
returned Summoneri feci in Trefpafs^ f^c. and
the Defendant did not appear, then the Court
awarded a Capias^ or a Dijiringasy as they
thought fit ; and in Debty bfc. the Court
awarded an Attachment and Dijlrefs infinite:
but when the SheriflF* returned Nil habet on the
Originaly then the Capias was ayrardcd even in
Debty and fo on to the Alias 6? Pluriesy and
then to the Outlawry y on Non eft inventus re-
turned on thefe Writs,
We may obferve that thefe Proceffes were
only to enforce the Defendant's Appearance,
and iffued on his Contempt in not appearing,
on being fummoned ; for if the Defendant ap-
peared after an Attachment or DiftringaSy his
Goods were thereupon difcharged by the Court ;
and if he was arrerled on the Capias y he could
fue out a Writ of Mainprize.
But when thofe real Pledges came to be
difufed, the Sheriff afterwards ufed to return
the Original of courfc, thus:
fjohn Doe
and
Richard Roe.
C 4 The
ii4 -^» Wftorical 7reatife of a Suit at Lam.
The within named CD. hath nothing in my
Bailiwick whereby to Jummons him. The
. Anjwer of K.C Efq\ Sheriff.
Upon which it was carried to the Filazer of
the County, for fuch furth(^r Procefs to be
made out thereon as was required, either to
arreji the Defendant, or fue him to an 0«/-
lawry ; and then the Original was filed by the
Filazery with the Cujios Brevium^ for a Tefti-
mony that the Court had a Jurifdidtion to take
Cognizance of the Matter therein y for upon
filing the Writ, the Court became poffeflcd of
the Suit.
But ftill the more ancient Praftice was, (be-
. fore thefe common or feigned Pledges became
abfolutely in Ufe) that when an Original was
fued out againft a Knight, Efq ; or Gentle-
man of Worth, who had fufficient Lands or
Tenements in the County, for the Sheriff ftill
to execute the Original, by fummoning the
.Defendant ; for if it was returned of courfe by
Nil habet as above, the Defendant might have
brought his Aftion againft the Sheriff for dif-
. ablinghim in his Eftate. And \i Pledges were not
found to the Sheriff, by the Plaintiff (or in the
Chancery before upon taking out the Original,
which ufed often to be done for Expedition) yet
they might be found afterwards in the Court
wherein the Writ was returnable, rather than the
Writ fhould abate for want thereof. And but
of late Years, notwithftanding the Difufe of
real Pledges, if thefe common or feigned Pledges
were not returned by the Sheriff, upon the
Original, it was Error, and the Defendant
might plead it in Abatement. How was this
con-
An Hiftorical ^reattfe of a Suit at Law>
confonant to reafon ? Severe Praftice indeed !
But this, though late, was remedied in Bayn-
ton V. Mayfer et aV Paf. 1 6 Car. i .
On the Difufe oireal Fledges^ a new Method
of Prafcife was introduced \ for the Method
offirft fuing out, and executing, or even get-
ting the Original firft returned of courfe, came
to be dropped \ and for Eafe and Expedi-
tion, the Praftice came to be, for Attornies to
make out a Precipe for a Capias^ which the
Filazer, as now, made out, and afterwards, at
his Leifure, entered the fame upon a Roll;
which Roll, at the End of the Term, he de-
livered to the Curfitor, who thereby made out
the Originals to warrant fuch Capias's all at
once ; and giving them to the Filazer^ he filed
them with the Cujios Brevium, which Praftice
is (till ufed ; fo that the Original is, now, be-
come a meerufelefs, and as it is prefumed, an
unneceffary Procefs, unlefs confidered as a
Procefs fued out, and filed, meerly to give
the Court a Jurifdiftion to hold Cognizance
of the Matter therein, which certainly was not
the only End and Intent of it.
An Outlawry, originally, was not ufed in
Civil ASions ; for in the Reign of that ever
memorable, great and good King Alfredy and
until long after the Conqueft, no Man was
outlawed but for Felony , thePunifliment where-
of was Death 5 and therefore an Outlaw was
faid to bear Caput Lupinum, becaufe any Man
might kill him, he being out of the Protec-
tion of the King's Laws, as he might kill a
Wolf, which was then efteemed the moft per-
niciQUS Animal that infeftcd the Kingdom.
C7/-
2$ Jln Hijiorical I'reatife of a Suit at Law.
Utlegatus et H^aiviata Capita gerunt Lwpina^
qua ah omnibus impu%e poterunt amputari\ me^
rito enim fine lege perire debenty qui fecundum
iegem vivere recujant \ alfo utlage pur felonie
teigne leu pur loupy et eft criable IVoolferjBeredy
pur ceOy queloup eft heaft bay.de touts gents ^ et
de ceo en avant lift al afcun de le occire or feor
del loupy dont cuftome Jolvit leu avoire dun man
del xountie pur cbafcun tefte'de utlage et de loupy
ice, i. e. an Outlaw for Felony holds the Place
of a Wolf, and is called Wolf-head> becaufe
that, as a Wolf, he is hated of all Men, and
becaufe it is as lawful for any one to kill him,
as he might a Wolf; of whom it is faid, that
it was the Cuftom to have of the Sheriff of the
County, as a Reward for each Head of an
Outlaw, and a Wolf, 6?^. IVingate fays a
Mark, which was then a great Piece of Mo-
ney, and confequently a corifiderable Reward,
Therefore, conudering it was not only lawful,
but meritorious to kill an Outlaw^ there is no
Room to wonder why it was then common
for Outlaws to fly to the Woods for Shelter,
fome of whom, as Robin Hoodj and others,
have tranfmitted their Names to Pofterity by
their Audacioufnefs. In BraSlon's Time it was
refolved, that Procefs of Outlawry fhould lie
in all Aftions that were Vi et /frmis» By the
Stat. 13 Ed. I. it lies in Account; and it was
not until the Beginning of the Reign of Ed. 3.
that it was refolved, " That for avoiding In-
" humanity and Cbriftian Bloody it fljould not le
" lawful for any Many but tbe Sheriffs to put
an Outlaw to Deatby though it was for Felo-
ny** By 25 Ed. 3. f. 17. it lies in Debt^
Detinue y ^hd Replevin ^ and by the 19 Hen. 7.
the like Procefs lies in Gj/Jr, as in Irejpafs j fo
that
cc
An Uifiorical freatife of a Suit at Lai%. 47
that an Outlawry is* now grounded on an ori^
ginal Writ in every Circumltance. But Pro-
ceis of Outlawry, being to put the Defendant
out of the King's Proteftion, and by which
he forfeited all his Goods, and was imprifoned,
and loft the Profits of his Land ; great Care
was formerly taken that no Perfon Ihould be
outlawed without fufficient Notice, and there-
fore it was, that :tbree Capias's fhould iflue,
before, there fhould be Procefs of Outlawry^
i. e. the Capiasy yilias, and Pluries. Thus when
a Capias iffued upon the Return of the Origin
naly and that Capias was returned Non eft in-'
ventusy the Alias iffued i and upon Non eft ith-
ventus returned on the Aliasy the Pluries if-
fued ; and upon the Return thereof, Procefs
of Outlawry iffued. How far this Law was
abufed, may be imagined by the * Stat 6 i£
8. that no Man fl^all be outlawed before be is
proclaimed in the County wherein he lives y or did
laft live\ and by the 31 Eliz. c. 3. that the
Sheriff is to make three Proclamations y the firft
in full County y i. e. at the Sheriff's I'omy the
fecond at the SeJJionsy and the third near the
Church Door where the Defendant lives.
Thefe three Writs now, are made out all at
once by the Filazery and returned of courfe bjr
the Attorney himfelf, merely as introduftory
to the Pj'ocefs of Outlawryy without any Sum*
monsor Notice to the Defendant, otherwife than
by the Proclamations. But, in ihort, an Out^
lawry in civil Adions i$ only neceffary againft
a Man of Worth, where it may fervc to com^-
• It is preftimed this Statute gave Rife to the Writ
of Proclamation,
fiB An Hiftorical ^reatije of a Suit at Law.
pel his Appearance, in order to get Judgment
and Execution.
It is to be noted, that the Court of Kin^s
Bench cannot proceed to Outlawry y but by an
Original out oi Chancery ^ returnable therein.
And here one Thing remains to fpeak of
relating to this original Writ, and that is, with
relpcdt to Fines upon Originals.
Sir Matthew Hale tells us, That before
and until the Reign of King Johny Fines ufed
to be impofed fro Jlultiloquioy from whence
arofe thofe common Fines pro pulchre Pla-
citando. As the firft were impofed in order
to enforce Plainnefs and Perfpicuity in our
Pleadings, fo the laft were no other than
Fines impofed by the Court for Profit ; and
^ oftentimes confiderable Sums of Money, Hor-
fes, or other Things were given to obtain
Juftice ; and he gives us an Inftance, inter
Placita incerti Temporis Regis Johannisy the
Men of Tarmouth againft the Men of Hajiings
and Wincheljeay wherein it is faid, " Jfferunt
Domino Regi tres Palfredos et fex Afiurias Na-
renjes ad Inquijitionem habendam per Legalesy
fcfr. and that frequently the fame was done,
and often accounted for in the. IMpe-Office un-
der the Name of Oblata.
But this was in part remedied by King
John and Henry the Third's Chartersj Nulli
. vendemus Jufticiam vel Return. However,
Fines upon * Originals, being then become
certain.
♦ It has been obffcrved, that there vvere Originals If-
fued out of Chancery long before the Common Pleas was
fevered by Af. Cb. for. even in the County Courts, if the
Pcht
An tBftorical ^reattje of a Suit at Law. 219
certain^ have continued to this Day; and
though it is uncertain when thofe Fines arofe,
yet it is certain they were to purchafe the
King's Favour or Leave to profecute in his
Courts^ rather than in the County or Hundred
Courts, or the Courts of their Lords ; and they
became ('tis faid) a confiderable Profit to the
Courts feeing, that if the Debt or Damages
(pecified in the Original exceeded 40 /. a Fine
of a Mark was to be paid to the King, and io
proportionably for, a larger Sum. But if wc
confider the Value of Money, and that no Fine
was paid for a Sum under 40/. it will not ap-
pear Co have been fo oppreflive, at that Time,
as it does at prefent, for 40 /• then, I fuppofe,
was as much as 200 /. is now ; and yet the fame
Fine ftill remains to be taken in Debt^ i^c.
Originals on Precipe's quod reddat were the
moft common Writs upon which thofe Fines
ufed to be taken (the Sum therein being af-
certained) at the Beginning of a Suit; but
Fines upon Trefpafles, ^c. were according to
Debt was above 40 /. there always i/Taed a JuftUies to the
SberiflF to enable him to take Ccgmzamce of it ; which
yufiicies was an Original. And with reipe6l to Lords of
Courts, it was a Maxim among the NcmumSy That u0 9me
V9mld bold Plea of Lands miitbout the Kin^s Patent^ nor
Flea if Debt abo^e 40 /. luithont the King's Writ. The King's
VtTrit was the Original ifiued by the Chancellor, who had
d\<t Cnftody of the Seal of the Court, both for Writs
nd Patents; which, originally, were formed by him.
And horn what is obferved by Sir M. Hale with refped
:o Fines, until the Reign of King John, it is not unrea«
Ibfiable to fuppoie that even in the King's Court, before
ilf. Cb., in Ci*vil Canjes, they proceeded by Original out
>f Chancery, upon which Original, thefe Fines ofed to .
}e taken.
the
An Hifiorital 'Trealife of a Suit at Law.
M Wftoftcal Treati/e of a Suit et La-x.
certain, have continued to this Dif i arxi
though it is uncertain when thofe Fir.a s.".:'-,
yet it is certain they were to purchifc :,-■;
King's Favour or Leave to profec-te in ': .-.
Courts, rather than in the Ceuxlj or Hurdrtd
Courts, or the Courts of their Lcrd: -, ar.d ir.zj
became ('tis faid) a conliderable Pr&fi; to :he
Court, feeing, that if the Debt or Di^.zua,
fpccificd in the OrigtKal exceeded 40/, a \.r.t
of a Mark was to be paid to the King, arA fo
proportion ably for a larger Sum- But if »c
confider the Value of Mcr.c)', and that no V-.tk
was paid for a Sum under 40/. it will not ap-
pear to have been fo opprdHve, at that Ti^/r,
as it does at prefent, for 40/. then, I fuj.^xjf*,
was as much as aoo /. is now ; and yet tr.r fame
Fine ftill remains to be taken in JJeht, He.
Originals on Precipe's quod rediat were the
moft common Writs upon which thofe tines
ufed to be taken (the Sum therein being if-
certained) at the Beginning of a Suit; but
Fines upon Trcfpaffes, ^c, were according to
7'A«w 10 tlM>
cA loLttdi vi
mud 1^^
.^^
30 An iTtftoricat T^reatije of a Suit at Law,
the Damages in the Judgment, which Fine die
Court fet and levied by Capiatur in the Judg-
ment, v^hich was entered up accordingly, Et .
Pr4tdi£lus defendens Capiatur. And this was
in all Cafes, where the Plain tifF declared for a
Thing done Vi et Armis \ but by 4 Gf 5 ^.
fcf M. this Capiatur Fine in ^rejpafsy EjeS^
menty AJfault^ and Impri/enmenty is taken away,
and in lieu thereof 6 s. S d. is to be paid to the
Prothonotary at the Time of figning the Judg-
ment y which he allows the Plaintiff again in his
Cofts.
From hence it was, that all Matters of Debt
might be put in the fame Adlion, becaufc
the Fine upon the Original could be taken
in Proportion to the Sum demanded; but
Debt and Trejpafs could not, for the Fine in
Tre/pafs was to be in the Judgment, and to
,be fet by the Court: and from this arofe a
Diftinftion between Adions, and how they
were to be feparated.
After the 13 Car. 2. Praecipe's quod reddat
began to be laid * afide in Debt^ on purpofc
to avoid paying this Fine-^ for it became the
Praftice for Attornies to make out Inftruftions
for a Capias claujum fregit, with an Ac ftiam
in Debt, for as much as it was (according to
that Statute) inftead of a Praecipe quod reddat i
and this is the prefent ufual Practice; fo that
thefe Fines are not paid now, but upon Special
Originals. As when an Original on a Precipe
quare Claujum fregit with an Ac etiam in Debt
is fued out, and Judgment is figned thcreoft
* The Reafon why Originals were laid . ailide, f«e
Am WJiorical ^reati/e of a Suit at Law. 31
by Default. Now this Judgment is not war-
ranted by that Original, the Writ being in
Tre^a/Sf and the Judgment in Debt; and
therefore, in this Cafe, if a Writ of Error it
brought, the Plaintiff muft purchafe a New
Original to warrant his. Judgment according to
the Nature of it, which is in Deil ; and 'tis
upon this Special Original the Curfitor takes
the Finei for if not fo warranted, the Judgment
may be fet^afide for Error. But in cafe no
Writ of Error is brought, then no fuch Special
Original is filed, and confequently the Fine is
avoided ; as it is if the Caufe is tried upon
fuch Clau/um fregity and a VerdiEl has palled,
Ux then it is helped by the Statute of Jeo faille^
aad no Error lies. In many other Cafes a New
Original is ncccffary.
Now when we confider the Nature of thefe
Beginning of a Suit, that is, the Bill which
i% fuppo/ea to be filed in the King's Bencb^ and
the Original which is Juppojed to be fued out,
returned, and filed in the Common Pleas^ and
the formal Parts of our Pleadings which de-»
pend on each of them ; when, I fay, we con-
fider the Obfcurity that appears therein, we
conclude^ that though thefe, and the formal
Parts of the fubfequent Proceedings, depend-
ant on them, might in ancient Times have
been necefTary and material 5 yet that at this
Time they are become ufelefs and unnecefTary,
and almpft unintelligible Forms ; and that what
-were then introduced for Convenicncy, are now
anticjuated as to their Ufe. And yet thefe are
^optmued as Things wonderfully material, and
with much Exaftnefs followed, though one
may venture to fay, (as it is very certain) that
they
31 An Wjlorical Treatife of a Suit at Lata.
they only ferve to fwell the Bulk of the fub-
fequent Proceedings, and very unneceflarily
increafe the Expence of a Suit, if no other
Inconveniencies depended on them.
For with refpeft to the Bill fuppofed to be
filed in the King's Bencby it is thereby afferted
that the Defendant is in the Cujlody of the Mar-
Jhaly £ffr. which is fiftitious; alfo that Pledges arc
given by the Plaintiff to profecute, i^c. which
is altogether as untrue ; nor does it appear that
ever any Procefs iifued requiring Pledges^ or
that ever any Pledges were really found in this
Court, yet with thefc the Declaration is con-
cluded, and the Memorandum at the Beginning
pf the IJfuej with the Imparlance before the
Plea, fcfr. depend on, and refer to it, as moil
of the fubfequcnt Pleadings do in fomc Re-
fpeft or another. And yet what is this Bill
but a mere formal Thing grounded on Fiftion,
and full of Falfities, and which is, indeed,
never filed but of Neceffity ? For the Statute
of J eo faille helping the Omiflion o( filing and
continuing it on the Roll, if there is no Writ
of Error brought, there is no Bill filed, (un-
lefs againft * Prifoners, or Attorn ies and Offi-
cers
• The filing a Bill againft Pri/oners^ in the Manner as
it is now done, is in no Refpeft agreeable to the origi-
nal Ufe of it ; for this is not done till after the Defend-
ant has been tmprifoned by virtue of a Procefs fubfequent
to a BiW% being fuppofed to be filed, and not till when
the PlaintiiF comes to declare, which fuppofes an Appear-
ante likewife to that Bill. And how great is the Hard-
fhip upon thefe poor People that this is fuiFered! As
Prifoners, they merit fome Mercy ; but inftead of this,
tncy arc burthened with greater Cofts than ever, for in-
ftead
jin Wfiorital ^reatijc of ^ Suit at Law. 37
ccrs of the Court; and in cafe a Writ of Error
is brought, fuch a Bill nnay be filed at any
Time before Errors are affigned. But is it
not ridiculous to thinks that a Judgment fliould.
be fet afide for Error, for want of fuch a Piece
of Formality ? What is the Intent of it, that
makes it fo neceffary? Why, it gives the
Court it's Jurifdiftion !
And with refpeijb to the Original out of
Chancery i (which is faid to be fued out to war-
rant the Capias in the Common Pleas y as the
filing the Bill warrants the Bill of Middlefex in
the Kings Bench) is it not juft fuch another for-
mal, ufclefs, and unnecefTary Procefs, which
draws after it many Inconveniences, and for-
mal Matters in the fubfequent Pleadings ? DoeS;
it not create an extraordinary Charge for the
Capias ? Is not the Fine, when taken, an un-
neceflary Expence? They are in themfelves
evidently unneceflary, becaufe we often do
without, and indeed never fie a Bill or a Spe^
cial Original^ but in Cafes where they are par-
ticularly required, or purely to increaje the
Cofts of the Defendant. Do not thefe Pro-
ceedings render^ the Beginning of a Suit ob-
ftcad of one BlU^ they are faddled, I may fay, with no
lefs x^'aji four: for inftance. When a Plaintiff cOmcs to
declare againft a Prifoner, the Bill is filed on Stamps, and
a Copy (that is, the Declaration, which in this Court is
received as a Copy of the Bill) on Stamps is to be delifver^
edto him/« Cuftodj^ another on Stamps to be annexed to an
Affidavit for him to give a Rule to plead on. One may
wonder at the NecelTity for all this, but fo it is ; and with
refpedt to the Cofts to the Prifoner, it* is in EiFcdt as fo
many ^///r againfl hii]j.
D fcure
X
34 ^ Hiftorical freatifk of 4 Suit at LaW.
fcurc and difficult? Or, to ipeak paradoxi-
cally. Is not a Suit almoft always ended be-
fore it IS begun ? For Judgments arc generally
Jir/t obtained, before the Suits are thus formally^
begun ; and then (fonnetimes) fet afiJe for not
bang fo. Befides, when a Judgment is figned,
^hrch requires a Special Original to warrant it,
and that Original is not made out aod filed in
due Time, which is very often the Cafe, there
tiiuft be a Pitition to the Majier of the Rolls,
and an Order drawn up upon that Petition,
which Order muft be entered and filed, even
for Leave for the Curfitor to make it out ; by
which we fee how Proceedings may .be en-
larged, and Cofts multiplied, for what, at this
Time, may jufHy be deemed the moft ufelefs
and unneceffary Proceedings in a Suit imagin-
^le.
'Tis true, it may be faid, that without fiich
a Bill filed, or prefumed to be filed in the
Kings Bench, the Gouft has nO Jurifdi<9non to
proceed in the Caufe; and without fuch an
Original fued out, and filed, the Comm&n Pleas
has none : fo that the two greateft Courts of
Law in the Kingdom, wherein Right and Juf-
tire is to be adrainiftred' to the Subjedtsy muft
continue to owe their Awthority to meer For-
mality and Fiftion, when it may be very eafily
remedied, and fuch unneceflary Things fu-
plied, by only declaring the Bill of Middlefex or
Latitat in the one, and the Capias in the ocher,
to be the original and leading Procefs ; and
then, the formal Proceedings depending on the
Bill and Original, with all it's Obfcurity, would
fall of courfe, the Foundation being removed.
And thus the Beginnings of. a Suit would be
nendered eafy, plain,'andfignifica«t.
Having
Jbi tSfiorital ^nafife $/ a Suit at Latv. 55
Having thus fiir treated of the Commenc^-
ment of an Aftion in each Court, in the Man-
ner they were formerly and are fomctimes
MW ufed^ in order to explain and render mofe
intelli^ble the formal Parts of the fubfequent
Pkfldmgs that depend on, or relate to them ;
it t&ay here be ufeful to fet forth and examine
the F6rm9 of the Proceflcs or Writs them-
felt^sf, as w^re, and are now in ufe, that the
Chaogea made therein may appear. And firft.
The Bill^ when fSedj runs thus :
Hilary Term in the 2d Year, 6fr.
Middlefexi ff. A, B. complains of C. D. ieing
in the Cif/to4y of the Mcrfhal of the Marflial-
fea of our Lord the King^ before the King
ttttfelf for this, t^ wit. That whereas the
faid C. on the ' Day of, (^c. (fetting
forth the Complaint as. ip the Declaration,
and concluding) and therefore he brings bis
Suit, &e.
t John Doe
Pleifges to profecute, < and
C Richard Roe
It has been obferved why tlie Defendant was
faid to be in the Cuftody of the Marjhal ; but
h may fcem odd, why fledges were indorfed
upon this mi, feeing no Procefs iflued to re-
quire them. To Iblve this Difficulty,, it may
be alledgedi they were brought in ufe from
the gener^d Law of Frank-pledge, and were
D 2 bor«
36 An Hijioricnl ^reatife of a Suit at Law.
borrowed from the County and Hundred Qo\ix\.^\
and this Court firft introduced thefe feigned or
fornmal Pledges, in order to agree, in fome
Refpeft, with the Pra6lice of the other Courts,
wherein they were really found ; or rather to
agree with the original Writ in the Common
Tleasy which they firft made ufe of. On filing
this BilU the chief Clerk's Procefs iffued, for
the Defendant to appear thereto, which Pro-
cefs we now call a Bill of MiddleJeXy and re-
mains yet the fame in Form, except as to the
Return, the Ac etiam, and the Englijij Notice.
Middlefex, ff. The Sheriff is commanded to -take
C. D. if he may be found. in his Bailiwick, and
keep him fafely, Jo that he may have his Body
. before our Lord the King, on ■ ne^t
after wherejoever our Jaid Lord
the King floall then be in England, to anjwer
to A. ^. of a Plea of Tre/pajs, and that he
have then there this precept.
By Bill. (Chief Clerk's Name.)
* This Procefs was direfted to the Sheriffs as
the proper Officer to execute the King's Writs ;
for though the Defendant either was, or was
fuppofed to be already in the Cuftody of the
king's Marfialfea, or Steward of his Houfhold,
yet as that Officer's Jurifdidion extended thro'
the whole County, where his l^Iajefty was, tlie
Si&^r/^was, notwithftanding, the proper Offi-
cer for executing this Procefs, asnd to have
the Body wherejoever he fhould be at the Re-
turns and on this Procefs, (being the firft af-
ter the. Commencement of the Suit) the De-
fendant;
An Hrjiorical Treati/e of a Skit at Law. yj
m
'fcndj.nt was crrejied or Jummoned to appear;
but: if he was not found before the Return
thereof, then on Non eft inventus returned by
the Sheriff, an Alias Bill iffued; and after that
a Pluries Bill. But if the Defendant lived not
in that County where the Court lay, then the
Sheriff TCivuntdi the Bill of courfe, thus :
ne witkin-named C. D. is not found in wy Baili-
wick.
And then, upon filing the 5/7/, the Plaintiff
was at Liberty to fue out a Teftatum Bill into
any other County, where the Defendant was
fuppofiid to be 5 and after that an Alias ^ and
Pluries Teftatum Bill. This Teftatum Bill foon
gained (as before obferved) the Name of a
Latitat ^ and runs thus :
€;&c Ccaatimi ^Bfll, or latftat
CHARLES, by the Grace of God, of ^c.
to the Sheriff of B. Greeting. Whereas we
lately commanded our Sheriff of Middlefex,
that he Jhould take C. D. if he might be found
in his Bailiwicky andfafely keep him, fo that
he might have his Body before Us, on
(the Return of the Bill exa6lly infc^rted)
to anfwer /^ A. B. in a Plea ofTrefpafs\ And
whereas Our f aid Sheriff of Middlefex, at that
"Day, returned to us that the aforefaid C.
was not to be found in his Bailiwick, where-
upon, on the Behalf of the faid A. it is fuff^
' xiently attefted in our Court, before us, thii
• the faid C. doth run up and down, ard fe^^
cretes himfelf in your County, ^^erefore we
D 3 comm^rd .
3 J An ItifiorUal ^eatifo qf a ShU ai JLaip*
command you^ thai you fake the /aid C. if hi
^47 kis found in your Bailiwick^ and fafely
hep bim^ fo thai you may have bis Body before
us at Wcftminfter, on next after
to anjwer to the faid A. of tbe
flea aforefaidf ai^d bave you then there this
Writ. Witnefs at Wcftminfter,
tbe Hay of in the Tear of
oiir Reign. ( Chief Clerk's Name.)
This was the ancient Form, and it ferved
in all Cafes, as the Bill of Middle/ex did, with-
out ever exprefllng any Caufe of ASiony but
only by Trefpafs, until the, 13 Car. 2. c. 2.
which enads, T^hat no fFrit of ^reffafs fbould
hold the Defendant to any Bail, i^c. atr^ further
than an Appearance, unlefs the true Cauje of
ASion was exprejfed in the Writ. So that then
in order that thefe Writs Ihould exprefs tbe
Caufe of Aftion, as tbe Common Pleas Writs
did I diey begup tp life the Ac etiam BilU af-
ter the Words of a Plea of Trefpafs. And this
was untruly faid to be ficundum Confuetudinem
Curia nojlra coram nobis exhibend\ to exprefs
the Caufe of ASion^ and thereupon hold the
pefendant to Bail ; as in a. Bill of Middle/ex,
thus : *^ Andalfo to a Bill of the /aid A. againft
the /aid C. to be exhibited according to the Cu/-
fom of the Court of our /aid Lord the King, be-
fore the King him/elf, for 20 L upon Promi/e,'*
or 20 1. Debt, i^c. And in a Latitat, thus:
•* And al/o tp Bill of the /aid A. againft the
/aid B. to be exhibited according to the Cuftom of
^ pur Court before Us for 20 1. upon Promi/e^*
^ 20I. Dipbt, tfr. as it was, for the Ac etiam
Y^M>i^accor(Ung to the Nature of the Afbion.
a ?ut
Aa HJlorical Treati/e of a Suit a$ Lato. 39
But about the Ycv — *— , it was contrived
for the Ea/e of the Subjeft, and for expediting
jufbice, as it was called^ to put the Bill of
Middlejex and the Latitat into one; fo that
the Defendant mi^ht be taken on the LatitM
in any County, without firftfuing out a BUI of
Middlejex \ and this was done by only fuppo*
fing a 5/7/ of Middlejex had iflued, and was re^
turned ; and upon this the B orm of the Latitat
came to be altered to what it now is, viz.
ANN, iy the Grace of God, &c. ^9 the Sheriff
of B. Greeting. IVhereas we lately commanded
our Sheriff c/ Middlefex that he Jhould take
C- D. if be might be found in his Bailiwick^
andjafely keep him, fo that he might have his
Body before Us at Weftminfter, at a certain
Day now paft, to anjwer to A.B. in a Plea,
For as the Bill of Middle/ex was not, but was
only fuppofed to be, fued out, it was impoffi-
ble to infcrt in the Latitat the very Return of
it, as ufcd to be done j and therefore the
Words, St a certain Day now paft, were intro-
duced to fupply the Return of the Bill of Mid-
dlefex fo fuppofed to be fued out.
One would reafonably have imagined, that the
Courts at IVeftminfter, in order to eafe the Sub-
je£l, and to expedite Juftice, might have fchemed
out a more eafy Method, than thus putting thefe
two Writs into one, as they might have order-
ed the Bill of Middlefex to have run into every
County, and have fuppreffed the Latitat; and
it might have been called a Bill of Berk/hire, a
Bill of Oxford/hire, &?r. as well as a Bill of
Middlefex. Is it not the King"% Procefs, and
D 4 every
40 An Hiftorical iTreafi/e of a Suit at Law.
. every County under his Jurifdiftion ? Or they
might have fuppreffed both the Original Bill
and Latitaty and have eftablifhed it as a ge-
neral Procefs for the Commencefnent of a Suit.
This would have rendered the Beginning of a
Suit fonnewhat more intelligible: but now,
whenever a Latitat is fued out, (though it be
the leading Procefs in every Countjy except
Middle/ex) two Things are firft fuppofed to
have been done, which are, an Original Bill
ingroffed and filed in the Office, and a Bill of
Middlefex fued out, returned, and filed likewife;
and which, in faft, feldom or never are done.
Before the Stat. 1 3 C. 2. there was the greateft
Abufe, that can be conceived, made of the Bill
of Middlefex 'y for thereby it was in the Power
of any one Man to devour the Credit of* 500,
hy arrefting them, as was then the Praftice, on
this Writ for large Sums; and by never de-
darings to avoid paying any Cojls to the De-
fendant. It even became a By- word to fay,
* ril heftow a Bill of Middlefex onfuch a one, and
this meerly to vex and difquiet a Man, or
mifchievoufly to injure and hurt him : There^
foi^ the Intent of this Statute was to prevent
frivolous and vexatious Arrefls, by ordering,
that no more than 40/. Bail Jhould be taken^ un-
lefs the true Caufe of ^ISlion was exprejfed in the
il/'rit^ (and this was done, as obferved, by the
Ac etiam^ or elfe they mufl: have had Recourfe
to Originals out of Chancery again) and alfo by
fubjefting the Plaintiff to pay Cofts (for not
■» ••
* This was a Complaint made, I find, in the Time
of OJi'ver''s Ufurpation, as a Thing that had been long
in Praftice : how long before is hard to fay ; but it i^ vcxy
f vident that; it continued until the making of this Statute.
declaring)
An Wftorical ^reatife of a Suit at Law. 'j^t
declaring) to the Defendant on his figning a
Non proSy which the Defendant could not do
before.
But this Statute was not attended with it's
defired Effeft and Defign, nor did it remedy
thofe Evils the Aft complains of ; for it was
as eafy to infert an Ac etiam *, where there was
no true Caufe of Aftion at all, as it was to
arreft a Man before any yfr etiam was ufed ;
for nothing more was reqtiired by this Aft
than that the Writ fliould exprefs the Caufe of
Aftion : So that the Abufe ftill continued, and
it was not remedied until that excellent Statute
of 1 2 Geo. I .
By the 12 Geo. i. it is ordered, That the
Plaintiff, to hold the Defendant to Bail^ mufifirft
make an Affidavit of his Debt^ which muft be
/worn to be lol. or above ^ and thereby Jet forth
his Caufe of ASfion \ and if no fuch Affidavit is
made and filedy the Defendant ts not to be ar-
refledy but to be ferved with a Copy of the Pro-
cefs^ under which is to be an Englifh Notice
declaring the Intent of fuch Service. And this
made great Alteration in the Ufe of thefe Pro-
ceflcs, viz. That where an Affidavit of the
Caufe of Aftion is made and filed, the Writ
is made out with an Ac etiam as ufed to be,
and the Sum fworn to is indorfed on the Back,
that the Sheriff may know for what to take
Bail ; but if no Affidavit is made, the Defen-
dant is not to be arretted, but to ht Jerved
with a Copy of the Procefs only : in which Cafe
* The only Check upon the Plaintiff, from illll purfu-
ing this iniquitous Pradice, was his being fubject to pay
Coils for not declaring in due Time ; which Cofts at this
Time, was about 10 j. only»
the
41 ^ Hiftorical Treatifs of a Suit at Law.
the Writ is made out without any Ac etium^
and the following Englifo Notice is fubjoined.
C. D. you are Jerved with this Proce/s^ to the
Intent that you may^ by your Attorney^ appear
in his Majefiy's Court of King's Bench at the
Return thereof^ being the Day of.
next^ in order to your Defence in this ASlion.
So that our Proccffes now are as follow :
Middlefex, to wit. ^he Sheriff is commanded in
take C. D, and J. D. // they be found in his
Bailiwick J and that he keep them Jafely^ fo
that he may have their Bodies before our Lord
the King at Weftminfter, on * Monday next
after eight Days of Saint Hilary, to anfwer
to A. B, in a Plea of "Trefpafs ) f and alfo to
a Bill
* All Prccefies and Writs in this Court are now made
returnable at a D^y certain, which before were made re-
turnable on a general Return, nuherej'oe'ver , I3c,
f There are a great many Niceties and curious Dif-
ftindlions in the Writs in Pleadings in a Suit which often
pafs unobferved. Here is one in the A(/etinm ; in the Bill
It is, Acccrding to the Cujlom of the Court of our f aid Lord
the Kingy he fore the King himfelf\ in the Latitat it if.
According to the Quftom of Our Court before Us, The Bill
is not ttjfed, but is fuppofed to be a commandatory Pre-
cept ilTued by the King's Order, and figned by his Chief
Clerk, alTigned to inroll Pleas before himlelf. The Latitat,
and all the fubfequent PrccefTes, are tejied in the Name cf
the Chiefjuftice of the Court, who are fuppofed tq be-
come polieiied of the Caufe upon the Sheriff's Return, and
filing the Bill of Middlefex ',fed fuare^ if not upon filing the
Original BilL
As
^ Hificrical TreaH/e of a Suit at Laiv. 45
a Bill of the faid /f. againft the iaid C to
' be exhibited according to the Cuftom of the
Coiirt of our faid Lord the King before the
King himfclf, for ao /. upon Promife ; find
that be then have there this Precept.
By Bill, Lee.
Indorfcd on the Back^ Bail hy Affidavit affilei
for lolp
a 13111 of ^Itmierert fallen not Mlahlz^
Middlefex, to wit. The Sb^ijl i^c. (it \^ the
fame as the other^ only the /ic etiam is omit-
ted, and the Englijh Notice i^ fubjoined,)
By BUI, Uc.
C. D. Tou are Jerved with this Procefsy to
ibe Intent that you maf^'^&t. ut flipra. Sq
likewife is made out the Alias a^ Pluries BilU
with or without the Ac etiam, ai for a BUL
9 Latitat, fnben bailable.
GEORGE the Third, hy the Grace of God,
(^c. To the Sheriff of Berkfliire, Greeting.
As the Caufi of jStion is to be {worn to, according
to the 12 Geo. i. juid the Affidtt'vit i| to be filed in
the Office from whence, and before, the Proccfs iflVies^
whereby the Caufe of Action muft be fet forth ; Sljutre,
whether Ac ttiums are not become unneceiTary ? The
Diftin^on is full enough, by ind&rfing the Sum fwom
to, for holding the Defendant to Bail in the one Cafe,
and omitting fuch Indorfement in the other. And the
Caufe of Action is better fet forth by the Affidavit;
beiides, the Ac etiam Billet refers to a fictitious
Thing.
lyhereas
m> ' An Hificrkal Treatije of a Suit at Law.
Whereas we lately commanded our Sher-tff of
Middlefex that he Jhould take C. D. and R.
R. ;/ they might be found in his Bailiwkk,
and keep them fafcly^ fo that he Jhould have
their Bodies, before Us at Wcftininfter, at a
certain Day now pajiy to anfv)er to A. B. in
a Plea of ^refpafs ; and alfo to a Bill of the
faid A. againft the faid C. to be exhibited
according to the Cuftom of our Court be-
fore Us, for 20 /. upon Promife : And our
faid. Sheriff of Middlefex at that Day. returned
to Usy that the aforefaid C. and R. are not
found in his Bailiwick ; whereupon, on the
Behalf of the faid A. // is fuffictently attejled
in our Court before Us, that the aforefaid C.
and R. do run up and down /ind fecrete them-
Jelves in your County, Therefore we command
you, that you take them, if they may be found
^in your Bailiwick, and fafcly keep them, fo
4hat you may have their Bodies before Us at
Wcllminfter, en Monday 7:ext after eight
Days of St. Hilary, to anfwer to. the aforefaid
A. of the Plea and Bill aforefaid, and that ycu
have then there this JV^nt before W. L. Mans-
.field ^/ Weftminfter, the lUh Day of No-
vvember in the firfi Year of our Reign.
Lee.
*
Indorfed on the Back, Bail by Aff.davit affiled
' for 10/.
If the Latitat i? not to hold the Defendant
to Bail, then the Ac etiam and the Words and
Bill are omitted therein -, and the like Noiice
is fubjoined, and fo it is in th^ Alias tind Pluries
Latitat,
. . Our
.r
Jin Hijioricnl Treatife of a Suif at Law. :4j
Our \Vrits being now printed with Blanks,
•they run in the plural Number, in cafe therp
Ihould be more than one Defendant to be in-
ferted therein ; but if there be but one Defen-
dant, then lohnBoe or Richard Roe h ^dtd
to- make it agree with the printed form.
S)f tf)e ©jfginnl out of Clianccrp, auH
jpioccps tOereoji.
It has been obferved, that the Commence-
ment of a Suit in the Common 'Plea's^ is byiah
original Writ out qf the CdArt oiXbancdryi
\and the Procejfes are faid to be the IVrits and
Precepts that go forth upon that Original.
'" The Original ufed to be procurcrihb^ z^Nofe
to the Curfitor^ called a Pracipe\ or Pone.
Berks. (T. Precipe CD. nuper de^iSc. and
- therefore called a Precipe.
• ■ . . * ^ . . .
BerkQiire to wit. Command C. D. late of W.
in the faid County^ Teoman^ that he render tjo
A. B. loo/. Debt^ which he unjujlly de'tainiy
6?r. Ret^ — -^ In Detinue, that he rendhr
to A. B. one Horje^ or^ ^c which he unjujily
. detains^ iSc. Ref »
*
Cfje pone tfjusj :
Berks. ^. Si. K.^, fecer* i^c tunc Pone], &?t.
C. D. nuter^ ^c. and therefore fo called. .
Berkihir^*
t \
4^ An Hifi^rical ^reatife of a Suit at Lst».
Berklhirc to wit. If A. B. fnakes you Jeeure
in projetuting his Claim, then putby/afe Gages
and Pledges C. D, late of W. in the Jaid
County^, Teoman^ to anjwer to the faid A. in
a Pka of "Trefpafsy tSc. fctting forth the
Complaint. Ref.
s
Clie * C)2f0inal on tlie p^aetfpe.
CHARLES, tii. 'Ta the Sheriff of "R. Greeting.
Ccmmand C. D. late of^ ^c. that be juftfyt
and
• Here are only two Precedents given of Original
Writs. The Originals, as formerly m^de out by the
Curjiurs, and whkh are now difuied/ being as fnasy
and as various, as the Caufes of Adtion on which
they wei^ gromided ; fome of thefe Originals oftd
SecBohun^s ^^ ^ proceeded on before the Sheriff, as a JufiidtSt
£ng. Lawyer. * ^^ ^f ^^'ifp^fi* ^^' ^'^^ therefore were iaid to
be FicetinUel ; and thefe were removeable into the King^t
Mtncb and Gomfn^n Pleas by another Original Writ, Cl^led
% fMi, He^ The Regifter, and Natura Ateuht^, ihew
fh^ Vari^ lad Nature of Original Writs, iAoxh are
now fupplied by other Methods of Pradtiee, both is kefd,
Ferfonal, and Mixifd Adions.
T^ Coufity Cotb-ts, and ShcrifPs Turn, wttt andent
Courts in the Time of King Mfredr and before^ hi
the Turns were tried all Pleas, of the Cronvn ; and in die
County Courts, all C$mmon Pkas under 40 #. without the
King's Wrii; afld above, to any Vakie, with the King's
Writ, according to the Maxim, ^d Flacita de Catauit^
tMitis, ^r. que$ Summon 40/^ attirtgunt, n}d exteeHMt,
Jk^nd^m Legem et Con/uetttdinem ji^liee, fine Brevi Regis
flacitari non debent. Hundred Courts, and Courts Baron,
^J^d afterwards the fame Powers granted them ; and Jhis
mAs becatrfe Men fhould have Law^^md '^vifizt ^t
Home
An ffijtoricat freatife of a Suit at Law. 'ji^^
and without Delay, render to A. B./w Pounds y
which be owes to, and unjuftly detains from
him, as he faith j and unlefs he fhall fo do,
and the aforefaid A. fiail make you fecure to
frofecute his Claim, thenfummon by good Sum--
moners the, aforefaid C- that he be before our
Juftices at Weftminfter in oight Days of St.
Hilary, to fhew wherefore he will not do it.
Hooiey aild not be obliged to Toe in^ or fbllotv the
King's Courts, fiut after the Court of Common Fleas
wa» ftttled at JVtftminftir^ thefe Courts came to de-
<dkie ; for by the Contrivance of the Judges tnd
Attemks^ mm were brought to fue ia the Common
Pleas and Kin^i Benchy or rather were neceflitated {}a
tb do : fbr what did it fignify for a man to feek.for
JuRtce-ttoaf Homa^ when after Judgment there, oc be-
foa^ lus fuit wat^ fisre to be removed lly virtue of thefe
Oripued Writs into one of the Courts above } and the
Km^s Setteb efpecially, by- virtue of a Bill filed by way
df MktHOttts, (as it ic (kid) would take Cognizance of
a Cauie of 5 j. and oblige a poor Man ia TorA or Corn"
nvuM,. not worth 40 /. to try his Caufe at Wefiminfitr f
f'br otherwife it was not lawful for a Man to fue in a
Court of Record for a Debt not amounting tp 405.
aud* therefore the Courts below> in order to keep the
Bufinefs there, and to prevent their being fwallowed
ap by thoic fuperior Courts, allowed the Suitors to
fib^ide tkeir Anions uflfder 4<» ^^ to hinder the Re*>
moval of them^ I3c. It was certainly beil whea
jufllce was provided for poor Men at their own Door^;
and was the Sum of 40/. to be multipHed to it's*
teal worth that it was at that Time, atuL the Courts
above reib^ned from taking Cognizance of any Thing
under, to what a low Ebb would the Courts at Weilminflen
be reduced ! And notwithftanding the whole Bufinefs i&
now engroffed by them, how little is coniidered the cx^
cefive Dearnefs of obtaining Juiiioo for inall Sums aC
> or 4> or %L,iSe,
And
4^ An Hiftorical Treaiife of a Suit at Law.
And have then there the Names of the Sum^
monersy and this Writ. Witnejs Ourfelf at
Weftminfter, the Day of
in the Tear of our Reign.
X-Jv
an ©n'gfnal on tf)e pane-
CHARLES, ^y the- Grace of God, &?r. To the
Sheriff ofB. Greeting. If A. B. makes you
fecure in profecuting his Claim , then put C. D.
tote of W. in your County y Yeoman , hy fafe
Pledges and Gages, that he be before Our Juf-
tiees at Weftnlinfter in eight Days of St.
Hilary, to anfwerjo the f aid A. in a plea that
whereas the fdid C. on the firfi Day of May
in the Year of our Lor dy ii^c. (fctting forth
the Complamt, or Caufe of Aftion, accord-
ing to the Attornics Inflruftions) to the Da^
m'^ge of the f aid A. i oo 1. and have you then
there the Names of the Pledges y and this fVrit.
Witnefs Ourfelf at Weftminfter, . the
D^y of in the Y^ear of
our Reign.
The Prcecipe was for Things certain, and on
which the Curfitor received the Fine. The
Pone was for Things not certain, as for Tref*
poffesy &fc. and on which no Fine could be re-
ceived. Thefe Writs being returned by the
Shertffy were carried to the Filazer for fuch
further Procefs to be made out as was necef-
fary, and to be by him filed with the Cuftos
Brevium; and until King Charles, the. Second's.
T^e it was abfolutely necefiary fur thefc Ori-
• ^^ ginals
An ttijiorical i'reattfe of a Suit at Ld'oo. 4^
pnals to be firft made out and filed, becaufa
the Declarations were to be warranted bv them a
but more efpecially in Trefpa/s^ Ca/ey ^c. for
the Original ufed to be recited fully in the
Declaration, and the Declaration was to agree
with it ; for if there was any Variance between
the Writ and Declaration, the Defendant could
take an Advantage of it, by pleading it in
Abatement \ for which Reafon the Declaration
in this Court has been properly defined to
be an Expojition of the Original Writ.
After Originals were returned of courle, and
Attachments and Diftringas's were laid afide,
but more efpecially after that Rule of Car. 2*
the leading Procefles were, either a Capias quod
reddat on the Precipe, or a common Capias
quare Claufum fregit on the Pone.
9 Capiais quoQ reHHat^
CHARLES, fcfr. To the Sheriff tf B. Greet-
ing* We c ommdnd you, that you take C. D*
late of W* in your County, Teoman, if he fhall
he found within your Bailiwick, andfafely keep
him,fo that you may haije his Body before Out*
^ujiices at Weftminfter in eight Days of St^
[ilary, to anfwer to A. B. of a Plea, that
he render to the f aid K^ lool. which he owes
to, and unjuftly detains from him, as it is /aid -,
and have then there this Writ. Witnefs, S^c.
at Weftminfter. T,
ft
9 Capfais quare Claurum fce^ft.
C H A R L E S, &ff . To the Sheriff of B. Greets
ing^ We cdmmand you, that you take Q. D,
E late
t .
50 An Hiftorical 'Treati/e of a Suit at Law.
late of ^ . in your County y Yeoman^ifhefijall
be found in your Bailiwick ^ and Jafely keep
hiniy fo that you may have his Body before our
Juftices at Weftminfter in eight Days of St.
Hilary, to anfvjer /(? A. B. in a Plea where-
fore with Force and Arms he broke the Clofe
of the faid A. at W. and other Injuries to
him dtdy to the great fiamage of the Jaid A.
and againfi our Peace ; and have you there
this IFrit. Witncjsy is'c. at Weftminfter
the Day of in the
Tear of our Reign. T.
This was called a Common Capias Claujum
fregity becaufe the Caufe of Adlion was not
efptcially fet forth.
If the Defendant could not be taken upon
the firft Capias^ the Plaintiff had then a Ca-
pias by Continuancey being the fame in Form,
but called fo by it's being continued on the
Roll by the Filazery from the Time the firft
• iffucd, and fo on from Term to Terrh until
the Defendant was taken. But in cafe the De-
fendant was gone out of that County where-
in the Original was filed, and as the Plain-
tiff could not fue out a Ccpias into any other
. County, therefore upon the Capias being re-
turned Ncn ejl inventus by the Sheriff, Leave
was given for the Plaintiff to take out a * Jef-
tatum
* As the Plaintiff cculd not fue out a Capias but into
that County wherein he had fiJed an Original^ the In,
tent of the Tejiaium was to enable" the Plaintiff to fol-
low the Defendant into any other County, and take hinj
tiicrewith. The Ufe of this Writ was at firft much abuf-
ed, in this Refptft ; if the Plaintiff had a Mind to try hit
Caufi
Ah Hijiorical Treatife of a Suit at Law. 5 1
tatum Capias into any other County, in order
that he might follow the Defendant, and take
him wherefoever he was to be found.
Thefe Procefles continued in Ufe until the
Reign of King Charles the Second, at which
Time great Amendment and Regulation was
endeavoured to be made in the pradlical Part
of the Law ; for, firjty by a Rule made for
fettling and regulating a Courfe of Practice,
it was ordered, (for avoiding long and un-
neceflary Repetitions of the Original Writ^ as
ufed to be, and was then done j Jee under De^
claration) that Declarations in Actions of Tref^
fafsy Cafoy tf f . other than Debty Jhould not re-
peat the Original fVrit^ but only the Nature of
the ASlion. And Jecondlyy by the 13 Car. 2.
the Sheriff was reftrained from taking any
greater Bail or Security than 40 1. unle/s the true
Caufe of Anion was exprejfed in the IVrit^ that is,
in the Claufum fregit. And from hence arofe a
new kind of Praftice ; for as the Original was
not to be repeated in the "Declaration^ it was
very evident there was po Occafion for any
Caufe in B, and the Defendant lived in T, the Plaintiff
would file his Original to warrant his Judgment, and fue
out a Capias in B, and then fue out a Tefiatum to take
the Defendant in T, which put the Defendant to the
Necelllty of trying the Caufe in B. and bringing his
Witnefles at a great Diftance : and therefore the Courts
thought proper, in order to remedy this, to change the
Fenue in fuch Cafes, upon the Defendai t's Affidavit
that the Caufe of Jdion arofe in T, and not in B, that
the Caufe might be tried in*the proper County, if th^
Defendant required it. .
E a Original
• »
52 -^» Hijlorical Treaitfe of a Suit at Law^
Original at all, at the Beginning of the Suit,
to fet forth the Complaint as ufed to be ; and
therefore Attornies, inftead of making a long
Precipe or PonCy for the Curjitor fetting forth
the Complaint as Inftruftions for the Original^
made a fhort Note for the Capias, thus :
Berks, ff. If A. B. makes, ^c. then put y 6?r*
C. D. late of W. in your county, Teoman,
Ret. broke the Clqfe at W.
w.
Upon which the Filazer f inftead of the Curji-
tor) granted the Capias Claufum fregit, and en-
tering this Precipe on a Roll, delivered the
Roll at the End of the Term to the Curfitor,
y^ho thereby made out the Originals all at
once, to be filed with the Cuflos Brevium. Thefc
Common Originals now were only the Claufum
fregit teftcd in the Name of the King, to give
the Court it's JurifHidltion ; but as it was ne-
ceffary by the 13 Car. 2. to exprefs the Caufe
of AStion in the Writ, to hold the Defendant
to Bail, the Ac etiam was introduced in the
Claufum fregit \ and frotn hence Precipe' s quod
reddat began to be laid afide likewife ; inftead
cf 'Dohichy in order to avoid paying the Fine,
Attornies befpoke a Claufum fregit with an Ac
etiam in Debt, or, ^c. for as much as the
Debt was, viz.
Berks, ff^ If A. B. makes, fcfr. then put, fc?r.
C. D. late of W. in your Countyy Teoman^
broke the Clofe at F. Ac etiam for 100 1. irt
Debty Ret, in eight Days of St, Hilary.
W.
Of,
■ *
An HiJ^orual Treatife of a Suit at Law. 5j
Or, if in Ctife, thus :
Berks. fC. If A. B. &?<:. then put, tf^-. CD.
late of W. in your County y Yeoman^ broke the
Cloje at F. Ac etiam in Cafe ftn- 20 L
Ret. in eight Days of St. Hilary. W.
So that the Claufum fregit became, and is
now, the fcading Proeefs in this Court, with
this Difference only \ If the Defendant is not
to be held to bail, the Claufum fregit ^ without
any Ac etiam as before, is the proper Proeefs \
and which now, in purfuance of the ,12 Geo. r.
has the like Englijh Notice under it, as the Bill
of Mi^dlefeXy or Latitat-^ but if the Defendant
was, and is now, to be held to Bail, the Ac
etiam is infeKed therein, and therefore is called
a Bailable Capias^ and the other a Common Clau-
fum fregit.
a Capfaier, cuftl) an ^c ttimi
GEORGE /he Thirdy ^c. To the Sheriff' of ^.
Greeting. We command yoUy that you take
C. D. late of W. in your County^ Teoman^
and R. R. // they fhall be found in your Baili-
wicky and fafely keep them^ fo that you may
have their Bodies before our Jujiices at Weft-
minfter in eight Days of St. Hilary, to an-
Jwer to A. 'Q. of a Pie ay wherefore with Force
and Arms they broke the Clofe of the f aid A.
at E. and other Wrongs to him didy to the
great Damage of the /aid A. and againji our
Peace, And alfo that the faid C. may an-
fwer to the faid A. according to the Cuftom
of our Court of the Brnch, in a certain Plea
E J of
54 ^^ Hijiorical Treatife of a Suit at Law.
of Debt upon Demand for ao/. And have
you there this Writ. Witnejs Sir Charles
Pratt, Kfjt. at Weftminfter, the Q.%th Day
^/ November^ in the 2d Tear of our Reign.
The only Inftruftions to the Filazer for thefe
Writs are as follow :
B . ff. Capias for A. B. againft C. D. late
of W. in your County^ Yeoman^ ret. in eight
Days of St. Hilary. B .
3lf baf (able*
B . ff. Capias for A. B. againft C. D. late
of W. in your county^ Yeoman^ ret. in eight
Days of St. Hilary. B— ■ ■ .
And alfo for 20 1. Debt. Affidavit for 10 1.
Or,
Arid alfo for 20 1. on Promife. Affidavit for lol.
Thefe are the Vracip^s which the Filazer
enters on the Roll, as Inftruftions for befpeak-
ing the Originals of the Curjitor-^ and it is eafy
to judge what Sort of * Originals are made out
(if
* The Original Writ, that is now fuppofed to ifliic out
of the Chancery i to give this Court its Jurifdiftion, is no-
thing mere than a printed blank Form of the Claufumfre-
git itfelf, filled up by the Curjttor, with the Parties Names,
returnable in the Common Pleas, and tefted in the Name
of the King, (without any Stamp, or ever pafling under
tjie Seal of the Court) and then filed with the Cuftos Bre-
viuffty in whofe Office they lie to be confumed by Time,
un-
An Hiftorical ^reatife of a Suit at Law. 55
(if any are) from them. It is not pretended
i:hey are to warrant any Judgment in the Court,
tut only to give the Court its Jurijdilfion ; for
if any Original is required to warrant a Judg-
Tnenty on a Writ of Error brought, fuch Ori-
ginaly which ufed to be rnade out and filed at
the Beginning of the Suit, is now bcfpoke af-
ter the Judgment^ and is called a fecial Ori"
ginal. By this we fee, how Time works a
Change in Things ; for inftead of one Original,
as ufed to be, there are now two requifite, one
to give the Court its JurifdiSfion to proceed in
the Caufe, the other to warrant the Judgment
of the Court in the fame Caufe. And inftead
of the firft Original being to warrant the De-
claration and the Judgment^ as was the original
Intent of it, the Judgment is now a Warrant
for the Original !
Of tDe DcfenHant'jBi 3ppenrance.
With refpeft to the Defendant's Appearance
in the Court of King's Benchy little need be faid
of it, further than, that when this Court began
' to take Cognizance of Civil Pleas, it was ufiial
to arreft the Defendant on every Procefs of
the Court, and bring him up into the Cuftody
cf the Marjhal of the Marjh^ljeay in order to
enforce him to appear to the Bill filed. If the
Aftion was for any thing under 20 /. they let
unlcis e.i^en by Vermin ; for 'tis not pretended they
are of any Ufe in fhe Suit, iinlcls it \r\\\\\ b-", that the
Court cf Czmmon Phas ^,\:A\ hcivc no Juriiuiclion but from
fuch Ori^jiiuus !
E 4 the
tS An Hijlorical "Treatife of a Suit at Law.
the Defendant out of Cujiody upon Common Bath
but if for %o L or above, they made him give
Special Bail.
In Lord IVentwortbh Time the ao/. funk
to loL
i
The Common Bail, it is prefumcd, always
run thus :
M. ff. C. D. is delivered to Bail upon the taking
of his Bodyy (that is to fay) to John Doe and
Richard Roe, at the Suit ef A. B.
But after the 1 2 Geo. i . the Form was aU
tered to what it is now, viz.
M. (T. C. D. having been Jerved with Procefs^
is delivered to Bail (that is to fay) to John
Doe and Richard Roe, at the Suit of A. B.
But with regard to the Defendant's Appear-
ance in the Court of Common Pleas, a great
deal of Matter and Form depended on it -, for
formerly, every Plaintiff and Defendant was
obliged to appear in his proper Perfon at the
Return of the Writ, which Appearance was
recorded by the Filazer, who * continued the
Procefles of the Court until the Prothonotary
took it up on the Delaration. For,
On the Defendant's being fummonedy he was
to appear, or caft an EJ/cin ; that is, fend his
* It is from this, that now, when a Defendant is
difcharged by the Court Srfcre Dechiration, the Fila-
sur is tlie Oflicer to iign the SupaJcJcas ; but after
Deckritiun l^i-^crfcdias^s are figncd by llic Prothono-:'
tary,
Excu(e
Jn Hifioricat ^reatife of a Suit at Law. f^y
^^cufe for his not appearing ; and the Clerk
^C the EJfoins entered fuch EJfoin^ and after
^vjch Entry the Defendant could not appear
st.gain that Term, becaufe the Plaintiffs by the
£ffoin Roll, had the fame Day given him ; and
therefore the Defendant was not allowed to
appear and plead in the Plaintiffs Abfencc.
This Effoin was to be fent on the very * Day
the Writ was returnable, for if the Defendant
omitted calling an Effoin that Day, the Plain-
tiff had Liberty the next Day to enter an Ex^
option with the Clerk of the Effoinsj and ob-
tain an Order that the Defendant's Effonium non
recipiatur.
And therefore, as the/^Day of theTerm was
called the Effoin-day^ fo tht fecond was called
the Exception-day \ and the third Day was called
the Retoma Brevium Day ; . for on this third
Day the Sheriff rttyyrntA the Writs into Court,
and delivered them to the Cujios Brevium ; and
then it was that the Court was feifed of the
Caufe by the Poffeffion of the Writ.
The fourtli Day was called the Appearance
Day, for on this Day both Plaintiff and De^-
fendant were to appear ; it was granted to the
Defendant ex Gratia by the Court, and if the
Defendant did appear, the Court proceed-
ed ore TenuSi and ex Officio abated the Writ,
or gave further Time for the Plaintiff ko de^
clare\ but if the Defendant did not appear.
• EJfoins were allowed on many othgr Occafions in
the Court of Ccjitmon Pleas cfpecial ly in Real Anions.,
^«d evci^ on the Hctitrn of the Venin &c. See ^ojl,
then
jIh WJIorical Treati/e of a Suit at Law.
then the Plaintiff appeared and * offered him-
felf, and the Filazer recorded his Appearance,
and that the Sheriff had returned the Writ. And
this he did to pray further Procefs of the Court,
for if the Writ was returned by Summoneri
feci, then the Court granted an Attucbment and
Difirefs infinite in Debt-, but in Trejpajs, bc-
caufc of the Fine to the King, the King's Pro-
cefs iffued, which was a Capias, or a Difiringas,
as the Court thought proper. But if the Writ
was returned by Nil bahet in Ballivd med per
quod Summoneri petefty the Capias ufually iflued
in both Cafes. If the Cfpias was returned Non
eft inventus, the Plaintiff again offered himfelf,
and then an Mtas Capias iffued -, and upon Non
tft inventus thereon, the Pluries; after which
ihey proceeded to Procefs of Outlawry', f
By Magna Cbarla, none are to be imprifoned
Niji per Legale Judicium Parium Juorum vel per
Legem Teme, It was one Part of the Law of
the Land to commit for Contempts, and it was
confirmed by this Statute ; and we may obferve.
• The Fonn of die Entn- i
PlaiKtiJ' in this Cafe was. "
t
An Hijiorical ^reatife of a Suit at Law. 59
the above Procefles, i. e. the Capias^ Aliasy and
J^luriesy were grounded on the Defendant's
Contempt in not obeying the Summons, and
4ippearing accordingly; and which ilTued to
compel . his Appearance, and not to imprifon
the Body for the Debt only.
If the Defendant * caft an EJfoiny he had of
courfe Time given him to the next Term,
la fome Cafes the Defendant had two EIToins
allowed him, until the Delays thereby grew
fo great an Hindrance to Juftice, that in many
Cafes they were difallowed. See Stat. Weft.
a. and 12 -E. 2. But it is difficult to Ihew when
it became the Praftice for the Sheriff, in order
to take away EJfoinsy to return the Original
Writ of Courfe by Nil habety that the Capias
might ilTue thereon, and the Defendant to be
arrefted without being firOi/ummoned : Though
we can't obferve the Inconveniences previous
to it, yet we may judge of the Severities that
enfued.
For, If the Defendant was taken by the Cj-
piasy Alias y or Pluriesy the Sheriff was not obli-
ged to take Bail for his Appearance, unlefs
^e Defendant fued out a Writ of f Mainprize^
• Before the Stat, of Weftminfter 2. c. 10. All At-
torniesy it is faid, were made by Letters Patent under
the Broad Seal, and thefe Patents were inroUed by
the Clerk of the Warrants ; but this Statute gives
Liberty to all Perfons of appearing by, and appoint-
ing an Attorney ; and then the Clerk of the War-
rants received each Perfon's Warrant of Attorney y after
which EJfoins were call, and Appearances were by At-
tomiesy and not in Per/on fo frequently as ufed to be
before. .
f See Natura £rc*v. for this Writ.
becaufe
€o An Hijlorical T^reatije of a Suit at Law.
bccaufe the Writ commanded him to take him,
Jo that be might have his Body^ &c. though he
might take Bail for him of his own Accord. .
Therefore, by the 23 //. 6, c. 10. the Sheriff
is obliged to take Bail, otherwife an Aftion
lies againft him ; and the Plaintiff is at Liberty
to take an Affignment of the Bail Bond, or, upon
his Return of Cepi Corpus, amerce the Sheriff
for not bringing in the Body.
From hence it is concluded, that after it
became the Praftice for the Sheriff to return
the Original by Nil habet of courfe, every Zte-
fendant ufed to be arretted on the Capias , as
on the Bill of Middlefex ; and upon fuch Arreji
was obliged to give Bail to the Sheriff to ap-
pear J or elfc (where the Aftion was (ot fame-
thing of fmaller Concern) fend to an Attorney
to undertake to appear for him; which was
done, if the Sheriff thought proper to accept
of it, by his indorjing oh the Back of the Writ,
or Warrant, fuch his undertaking, to appear for
the Defendant ; and there are fome Inftances
tvhere Attornics have been fined, or ordered
to pay Cofts, i^c. for refufing to appear ac-
cording to his Undertaking.
If the Defendant was arretted for 20 /. or
above, the PlaintifTs Attorney, by entering
a JVi? recipiatur with the Filazer, did crave
* ipecial Bail to the Aftion ; for this Ne re-
cipiatur
* The giving Bail to the Aclion oame in on re-
turning the Capias by Cepi C. Z>. cujus Corpus y l5fc, for
before then, if the Defendant did not appear on the
Summons, thh ^Sheriff fiiight attach him by his Goo4s,
'or
2
An WfiorUal treatije of a Suit at Lavf. ^%
€ipiatur was, that no Warrant of Attorney, or
Appearance fhould be received until Bail was
filed with the Judge; and therefore it was ir-
regular for the Defendant to file a Warrant of
Attorney, before Bail was put in. And thiflf
Rule was taken from the Pradice of the King*s
Bencby where they difcharged no Perfon out of
Cuftody, without fpecial Bail, if the Debt was
20 /. But here, as well as in that Court, in
Lord lVentworth\ Time, it funk down to 10 h
The Hardfhip in this Cafe was, that the De-^
fendant's Bail were obliged to travel to Town^
live where they would, to put in fpecial Bail j
for the Judges were not impowered to ap-
point * Commiffioners in the Country to take
Recognizances of Bail until the 4th of JV. 6?.
M. €. 4,
or by Pledges ; if by his Goods« and Re did not appear^
Ihey were f<H'fieited $ if by Pledges, and he did not appear,
the Pledges were amerced^ And this Bail^ as Pledges are
difufedy fupply their Place.
• The Commiflioners appointed are Jufiices of Peace^
or Barrifters at Law, who refide in the Country, and
are fo few therein, that it now frequently happens, (ef-
pecially where the Arreil is upon a ihort Rettftn) that
after a Man and his Bail have been riding from TenAm to
fomjn after a Commiffioner^ to take the Recognizance^
they can't meet with one, and are obliged at lad to
come to London f ta put in Bail before a Judge, to pre-
vent an Affignment of the Bail-bond; and what adds
to this MifchieO is, that if Bail is put-in in Town,
fuch Bail muft jujU/y in Town ; confequently a Man
and his Bail may be kept a Week in Town from their
Bnfinefs ; for, if they go down, they muft come up
again to juftifyi This is a Hardship that may be eafily
leme^ed.
But
t% jh tBftarkal ^feaiije of a Suit at Lms.
But as it was become the general Praftice,
in both Courts, for a Man to be arrefted upon
a general Writ of Capias Claujum fregit y Bill of
Middle/ex y Latitat^ i^c. for 40 j. and lefs, and
even where, as in Trefpafs, nothing was due>
and where only Common Baily or a Common
Appearance could be required, without ever
exprefling the Caufe of Aftion, many litigious
and vexatious Proceedings arofe, and extraor-
dinary Bail was exafted by the Sheriflf s Offi-
cers, Csfr. as are complained of by the Statute.
Therefore, to reftrain thefe Abufes, the 13
Car. a. was made, whereby the Sheriff is re-
ftrained from taking any greater Security than
40 /. unlejs the true Caufe of A5lion was expref-
Jed in the Writ. And this, as before obferved,
gave Rife to the inferting the Ac etiam in the
Procefles of each Court, thereby to fet forth
the Caufe of Aftion; but yet, as no Proof
was required to be made of the Debty or Caufe
of Aftion, previous to the fuing out the Writ,
Ac etiams were neverthelefs (where Ill-nature
and Malice prevailed) inferted therein, and
thofe litigious and vexatious Proceedings ftill
continued, to the great Injury, Oppreflion,
and Expence of the Defendant.
For when a Man yras arrefted on fuch a Pro-
cefs, and could not find Bail to the Sheriff, he
had no Way left^to obtain his Difcharge, but by
Jummoning the Plaintiff before a Judge ^ tojhew his
Caufe ofASfiony which was generally done by the
' Plaintiffs, fwearing to his Debt ; if not, the
Defendant was difcharged by the Judge's Or-
der. But all this while the Defendant conti-
nued in Cuftody on the Arreft, and though
tjje Defendant could' give Bail to the Sheriff,
yet
An Hijicrical Treatife of a Suit at Law. 63
yet Summons's were no lefs as frequently ta-
ken out, to Jhew Caufe why Common Baily or a
Common Appearance jhould not be acceptedy to
avoid putting in Hail to the ASlion. Here was
rare Work for the Attornies ! It is more cafy
to conceive, than exprefs, the litigious and
vexatious Mifchiefs in the Praftice, while thefe
Proceedings continued; and yet it was not
remedied until the 12 G. i.
By this Statute the Plaintiff is obliged to
make an AJfidavit of his Debt or Caufe of Ac-
tion, and that the Sum due is 10/. or upwards,
previous to fuing out the Procefs, to hold the
Defendant to Bail; for if the Sum is not 10/.
the Defendant is not to be arretted, but is to be
fcrved with a Copy of the Procefs only, with
an Englijh Notice thereto, (for the Procefs ftill
continued in * Latin) to fhew the Intent of fuch
Service. This was an excellent Law indeed !
and worthy of being made perpetual ! for it
introduced a new and eafy Method of fum-
moning the Defendant to appear ; and through
this, as obferved, the Common Bail-Piece was
altered in it's Form.
As to the Defendant's Appearance in this
Court, where fpecial Bail was not required, it
was made by a fhort Note of the Attorney,
and is now thus :
♦ William the Firfl brought in the Norman Language,
but the Proceedings were recorded in Latin, being a
dead Language, and not .fubjeft to Variation. The
French continued till Hill. '^6 Ed 3. when it was abolifh-
ed, though Notes were much longer continued to be
taken in French ; and Proceedings continued to be re-
corded in Lati.'* until 4 Geo, 2.
B .
€4 ^» Hiftorical Treatife of a Suit at LaWi
B . ff. Appearance f$r C. D. late ofVf. ii
thejaid County ^ Yeoman ^ at the Suit o/A.K
R. B.
Which is left with the Filazer^ to be entered
on his Appearance Roll 5 and in cafe the De-
knd^int fails to file Common Bail, or enter fuch
Appearance, on the Return of the Procefs, or
in eight Days after, this Statute gives the Plain-
tiff Leave (upon an Affidavit made, and filed of
the Service of the Procefs) to appear for him, and
to leave a Declaration in the proper Office, and
upon giving him Notice to plead thereto, (accor-
ding to the Rules of the Court) to proceed to
Judgment. And this is very reafonable, as in this
Cafe the Defendant is in no Relpefit furprized
in the Plaintiffs Procefs, but is, as we may
fay, * twice fummonjed to appear, and defend
himfclf
• Our ancient Laws were much in Favour of hu
fcerty, and though now a Man can't be airefled in th^
Courts of Weflmirtfler but for lo/* or above, yet it h
queftioned, if it would not be better if it was reduce'd
to much left. This is fpoke in Favour of Trade; fbf
Was a Matt under no Fear of Reftraint, it would put a
Stop to Credit ; and was the Arrcft to be for a lefs Sum^
the Plaintiff (on whom the Hardfhxp lies, to be forced
to tak^ any Remedy for a juft Debt) would be in a fairo*
Way of getting his Money,
A Man can fooncr pay 5 or 67, than 10/. and it was for
this Reafon, that about Londotiy a Plaintiff had Recourft
to the Palace Court j which Court for t'wel've Miles ibun4
London, and alfo the City Courts for London, held to Bail
for forty Shillings, and above ; but now by an Ad paffed in
the 19th Year of his prefent Majefty, it is enaded^ that af-
ter the I ft oijuly, 1779, no Peifon fhall be arreAed or hel^'
To Rail upon Procefs iffuing out of any inferior Court flr kfs
than lol. fo that now a Man can't be arrefted for lefs
than 10/. and in fome Counties not under 20/. and id
fuch a Cafe, how can it be expefted^ if the Defendant
can't pay his Debt upon the Arreft^ he can diicharge him-*
.Jbir Hffiiri^l fnati/e of a Suit at Law. 65
hinfifelf againft the PlaintifTs Suit^ that is once
by the Service of the Writ, and next by the
Notice
felf from Gaol with the Addition of Cofts ? Whereas, had
the Arreft been for 4 or 5 /. only, a Defendant might have
raif(id it, or ^t Friends, much fooncr, to relieve him.
But lAxm, as the Arrefl is for 10/. a Plaintiff* is very
imwiUing the Defendant fhould be difcharged; and, to
puniii lum, IBll proceeds to prevent it, and thereby in-
O'caies the Hardfhip on both ; for the Plaintiff^'s Revenge
& fh^fpenied by reafon of his Cofts, and the fame Cofts
fa ail Addition to the Defendant's Debt, and thereby his
piicharge is rendered ftill more difficult ; for thefe Cofts,
upon a Writ of Inquiry, may be jL or 8/. at the leaft;
and 14/. or 15/, if by Verdid on a Trial: generally
they are much more.
The not holding a Man to Bail for le/s than loA and
that by Oath of the Plaintiff", was defigned to favour a
Man's Liberty ; now fuppofe a Man is fewed with a Co^
j»y of a Writ, for a juft Debt of 4/, or 5/. only, the
OAly Check upon the Defendant for the Non-payment is
the growing Cofts ; and what is then the Confequence,
-Hdth reiped to both Parties ? The Plaintiff" muft pro-
^ted to Judgment by Inquiry, or Verdidl^ to prevent his
being non-profi'd, and add fuch large Cofts to his Debt,
before h^ can receive any Benefit by his Suit, that are
{xAcLtvX to deter any Plaintiff" from fuing at all, where
the Payment is the leaft doubtful ; and 'tis evident an
e^tpeiienced Tradefman will rather lofe fuch a Debt, than
m^t a certain great E^mence in endeavouring to get
it* This is an Occafton for a Defendant to exult, and
rtn in Debt wherever he can get Credit; and as to
Ha Defendant, thofe Cofts are fuch an Addition to a
finaU Debt, that it is impoflible to expedt a Man, who
cte't pay 4/. or 5 /. ftiould pay 15 /. or 20/. and if not,
]^ 'ScAjf Geods, and Chattels, muft be, and continue
Id be, liable to be taken in Execution, to the imme-
^iXt Ruin of himfelf and Family, and remain a Dif-
4(HiAM)[kefit t6 his future Endeavours, for thefe are large
, F CQfo
£6 Ah Hiftorical "treattfe of a Suii at Ld^4
Notice of* a Declaration being left in the (5ffice.j
and without this Liberty given to the Plaintiff
thus to proceed, he would be in no Capacity of
receiving any Benefit by his Suit, nor the Court '
of giving any Judgment or Relief t6 hiiti
therein.
However, it may be obferved, that this,
and many other Methods of the prefent Prac-
tice, are quite oppofite and contradiftory to
the old, eftabliflied, and fundamental Laws
and Cuftoms of the Courts, in many Inftan-
ces, as may be obferved throughout, (See
Cofts for a poor Man to pay. However, the induftri-'
ous Creditor is the greateft Sufferer; his Debt, is moft
often lofti and his Cofts are a certain Addition to it;
and it is difficult to point out a Method to fave or pre-
vent it ; unlefs a Plaintiff, ty eftabliming a fmall Debt
by Oath, might arreft a Defendant, and after ibine fliort
Time of Imprifonment, if the Debt was riot paid^ the
Defendant fhould be releafed both from Gaol and th6
Debt« Such Punilhment, when rendered certain, and
proportioned to the Debt, might deter the wild, thtf care*
lefs, and difhoneft Fait of Mankind, from contradtirig
Debts but with an Intent to pay them. Then the
Plaintiff would know his Lofs, and be at Liberty, not
to add fuch extraordinary Cofts to it, as he now mull.
It need be no Bar to a Man's giving Bail,- and conteft*
ing the Suit ; and it would prevent fuch long Imprifbii.
ments, for fmall Sums> that poor Prifoners labour under.
It would prevent a whole Family's being ruined (as is
often the Cafe) by an Execution againii the Goods,
&c. it is difficult to fay- what, but fome fuch Me-
^od might be fubftitiited to fave the Plaintiff's Ex-
pence in proceeding, who in general is the Sufferer,
and the long Imprifonments poor Men moil frequently
endure, i^c.
poft.)
An Htftorical Yredtife of a Suit at Lakv^\ €f
poft.) However it is an excellent Law, and
ihews how much the Prpceedings. or Plead-
ings in a Suit, want to be regulated, and made
agreeable to the prefent Mode of Praftice,
without harbouring fo much Obfcurity, and
unintelligible References to ancient Matters as
they do.
^ After the Defendant has appeared to the
Plaintiffs Procefs, or in cafe the Plaintiff ap-
pears for him, according to the above, new
eftablifhed Method of Praftife, the next re-
gular Proceeding in a Suit is the Plaintiffs
County or Declaration^ exhibiting his Complaint
or Caufe of A£lion ; which ufed, and is now
Juppojedy to be done by the Bill or Original
fPrit, filed in the refpeftive Courts ; though,
in faft, neither the one nor the other is but
•vjery rarely or ever done, except, as obferved,
againft Prifoners, ^c. neither of them being
no'io requifite at the Commencement of a Suit,
they being helped by the Statute. And there-
fore they may, with great Reafon, be laid afide ;
clpecially, as by what has been (aid, and as it
will evidently appear, they only (when now
occafionally ufed) tend to. the increafing the
Expence of the Suit, and mulj:iplying the
Proceedings, without the leaft Neceflity for
them.
Fa Of
tp ^ tii^orkal "irtatift of a Suit ati X^tef^
iDt tU Declacatiott-
A Deilaration* y or Counfj is m Iuftrqr)aAli( .
framed to fet forth the Complaint or Dermaod
of the Plaintiff or f Demandant, againft ikio
/ Defendant or f Tenant ; and which ufed, and
ought to contain, the whole Matter or Sub-
fiance thereof. ■
Thjb- original Defign, and principal Efi^ar
bjdftiment of the Court of King's Bench^ af-
ter the making^of Magna C&^r/^, being; tq cfc-
termine criminal Proceedings, it. is faid,^ Civil
Caufes were the i[y-buCnefs of thb Courts
and entered by way of MemarandumJi % ftom^
which it may be concluded^ that the Vedm'a^
tion was begun with the fame Memorandum^,.
which is now prefixed before the Iffue^ (fee
pofl.J it fecms to have been fo. But tp bcgioi'
on this Head with more Certainty :
In the Court of King's Bench ^ the Declaratiam
ufed to be drawn from the Bill then filed by,
the Clerks in the King's Bench Office, who were
. '^^ Though a Declartuion and Count may be £}xnetiQiei
confounded^ yet a Count more properly fignifies tht^^
Declaration in the Original Procejsy and diiefly ufed' ili^
Real A6lions in the Common Pleas i it feems to come
from the French Word Counter, or Contor, to declare:
So Serjeants at Law have been called Counters, or Con-^
tours ; and at this Day we call their paffing a Recovery
at Bar 9 Counting at Bar.
, -(•; Demandant and ^ntigit were Terms ufed in R$JL
Actions only, in the Common Pleas, and are difufed with
them*
thea
jIn Hifiorkal Trtatife ofn Suit at LaviK ^
then many, and did the Bwfincfs therein iox
the Attomies at large, or for thofe who had
iiot Seats there \ in like Manner as the €lerks
in the EKcheqicer of Pleas do now^ for thefe
Clerks^ in Right of their being Clerks in the
Office, were called Attomies of the Court-, and
ifro Attomies ^t large^ till after the Fire of Lon-*
ihny vrere admitted to file their own Plead*
mgs$ &nd it was ^rom thole Clerks that the
Clerk of the Declaratrons received his Fee of
ft J. a Term for * fyeing^ fiHiig^ and keeping the
Declarations $ and 'tis fuppofed they paid him
US well for the Attomies at large who employed
ttem as for themfelves.
The Bill or Declaration being j" ingrofled
and filed by the Plaintiff's Clerk, (which was
dpne for the entring up Continuances thereon)
he then delivered a Copy of it to the Defend-
tot's Cleiic, who tiled the Common Bail, who
caking a Copy of it for his own and Client's
Ufe, returned it again the next Term when
he came to plead, with his Plea (if he pleaded
the general Iflue) wrote on the Side of it, {or
tti^^^tmM >H *IMiirf» f i II
* This word p^^t^p ^^ i^ade ufe tof iit an «ld Rnlc
of Court, figtiiftcs" tSie felc^ng the Declarations from
that <:Qnfiii(ed Manner an whkh they were brought ki,
tad reducing thejn into an alphabetical Order, ror the
iaore ready .findiiDgf them, Sffr. It is a Term yet in Ufe
amotig the Printers, but here it fignifies the Reverfe of
this, for they call pyeing the ca^ng away the Letters
out of A« Frame, or Box, confufedly tcjgethcr ; and this
-tibey can making Pye.
+ ^^^^ffi^Ky fi^'^S ^^^ continuing, have been long dif-
ufed ; but it is yet charged for, as done previous to the
ik iivcring j «f ^Uag -the declaration.
F 3 fife
V
^o An Hijiorical ^rtattfe of a Suit at Latx^.
elfe entered his Plea in the general Iffue Book
in the fame OfBce) which was called giving a
iPlca on the Book-fide. And in the Books of
our prefent Praftice it is laid down as a Rule,
that the Plaintiffs Clerks or Attorney^ may make
up the IJfue^ or Paper-booky in all Cafes where
the Plea may be given or the Book-ftdey without
Taying what fuch Pleas are which may be fo
.given, it being to be underftood to be the
-general Iflue ; for if the Defendant pleaded
any fpecial Plea, he filed it with the Clerk of
the Papers in the fame Office, for the Plain-
tifFs Clerk to befpcak a Copy of it ; and then
the Clerk of the Papers had a Right to make
up the Paper-book or Iflfue from the Pleadings
of the Parties, which Privilege they ftill retain
in this Court; and in this Office the Clerk of
the Bails y the Clerk of the Rules^ and other
Officers of the Court had their Seats, and
therein all Bufinefs was tranfafted by thefe
Clerks from their Clients Inftruftions.
In the Common Pleas the Bufinefs, originally^
was from Time to Time heard Ore tenus at
the Bar, and the Prothonotaries were then the
.Scribes who took dqwi^ the A6fc$ of the Court.
They began to take up the Caufe from the
Return of the Writ, therefore, upon the Plains
tiff^s declaring; they kt forth the Authority
by which the Court proceeded, that it might
appear that the Court had Cognizance of the
Caufe. Wherefore, in all Aftions where the
firfl: Procefs wa^ by Summons, they took Nor
tice of the Summons, and faid, C. D. * Sum-
* It has been obferved before, what gave Rife to this
DifTerence in the frothonotary's Entries, /.
monitu^
An Hifiorical S^reatife of a Suit at LaiJtf, 7 1
• •
monitus fuit ad rejpondendum^ i^c. And fo in
Trefpafs, (s^c. where the Procefs was by At-
tachment, they faid, C D. Jttacbiatus fuit ad
refpondenduniy ^c.
As the Plaintiff declared Ore tenusy which
was minuted down by the Prothonotary, who
afterwards entered the Declaration in Form,
agreeable to the Writ on the Roll : So was
likewife the Prayer to imparle^ this being all
that was done the firft Term by the Court,
after the Parties had appeared 5 and then the
Roll was called the Imparlance Roll j and
afterwards, when a Plea was given to enter,
they made the Entry on another Roll called
the Plea Roily and from thence they tran-
fcribed the Niji prius Roily on the Back of
which the Judgment was entered. But as the
Bufincfs of the Court increafed, the Prothono-
taries found it difficult to manage the Bufinefs
of the Court, in making thofe Entries j and
therefore they permitted Attornies to draw up
the Pleadings, and leave them in their Office
to enter occafionally ; and afterwards to deliver
the Proceedings in Paper to one another, and to
pay them for the feveral Entries on paffing
the * NiJi prius Roily [the Practice of the King's
Bench is fuppofed to have introduced this in
the Common Pleas']. And from thefe Plead-
ings in Paper, or in the Office, the Nift prius
* The Prothonotaries in the Commcn Phas (and Clerk
of NiJi prius in the Kings Be?ich) do pais ail Records ^ or
Nifi prius Rolls y for Trial, and are paid fo much /fr Sheet
for fo doing, becaufe the N/Ji prius Rolls are fuppoled to be
made up by themfelves, from the fcvcral Rolls in their
Offices, fcfr,
F 4 R6ll
^a An Ittfiofical ^reatijt ofu Suit at La^.
Roll was made up ; and after the VerdiSl^ Acy
made up the Plea Roll from the Niji prius Roily
in order to enter up the Judgment thereon.
This was inverting the ancient Pradtice, for
now the Proceedings begun to run in a new
Channel.
Attornies, having gained Knowledge and
Skill from the Entries of the Prothonotariej,
in common Cafes drew their own Declarationsy
or elfe ufed to apply to Counfel to do it j or,
it might be rather faid, that in difficult Cafes,
while the Original was in Ufe, the Counfel
- drew or fettled the Precipe for the Original^
for that in Trelpafs, Cafe, fcf ^. wa3 a Gyidc
for the Declaration ; for in the Comrnqn Pleas
(and alfo in the King's Bench y when the Pro*
ceedings were by Original) the whole original
Writ ufed to be inferted in the Declaration, as
introduftory to the fubfequerit Part which wgi
a little more full 5 and fo the Ori^nal con-
tiaining the whole Subftance of the Complaint
or Demand, it was no more than reducing dib
Writ into the Form of a Declaration, by re-
peating the fame Matter, as contained in the
Original, over again ; with fometimes a little
more Certainty as to Time, Place, 6fr. and for
which Reafon the Declaration has been moft
properly faid to be, An Expojition of tbf ori^
ginal IVrity adding Time, Place, and other necef^
Jary Circumjlances to it, to render it certain, thai
the fame might he triable. It being a ftridly
pbferved Rule^ that there fhould be no Va-
riance between the original Writ and the TH-^
claration, but that the one fhould be a Warrant
for the other ; for, if there was any Variance,
^ the Defendant might pl^ad it in Abatement,
And
An Hifto r teal Treaii/e of a Suit at Law. 73
And this Method of repeating the Original is
ftill often (and as it is conceived unwarranta-
bly) ufed in ^i tarn ASlions in this Court.
In order to explain this clearly, and thereby
to elucidate the prefent fornial Beginning of
the Declaration in the Common Pleas j it will be
neceffary to recite fome Part of the Original
again. Suppofe the Writ run thus :
CHARLES, ^c. "To the Sheriff of B. Greet-
ing. If A. B. make you Jecure to pro/ecute
bis Claim, then put CD. late of Vf. in your
Gountyy Teoman, by fure and fafe Pledges^
that he be before our Jujiices at Weftmin- "^^
iter in eight Day of St. Hilary, to anfwer
to the f aid A. in a Plea, that whereas the f aid
C. on the tenth Day of November in the
Jecond Year of our Reign y at W. in the /aid
County J was indebted to the faid A. /';/ the
Sum of ao 1. of good and Uwful Money of
England, for divers Goods, i^c. (fo on with
the whole Complaint, or Demand, conclu^
ding) to the Damage of the faid A. 40 /. as
it is faid 'y and have you there the ,N<mes of
the Pledges, and this Writ. Witnefs Ourjelf
tf/ Weftriiinfter, ^£c.
Now in drawing the Declaration, they be-
gun thus :
Jft— — , IT C. D. late of W. in thefoid Coun^
ty, Teoman, was attached to anfwer to A. B.
tn a Plea, that whereas the faid ^. (here came
in a Recital of the Complaint as in the Ori*
ginal) an the lOth day of November in the
Jecond
74 -^^ Hiflorical Treat i/e of a Suit at Law.
Jecond Tear of the Retgn^ &?r. at W. in the
faid County y was indebted to the f aid K. in
the Sum of 10 L of lawful Money ^ £rr. down
to to the Damnge of the Jaid A. 40/. In-
ftead thereof they went on, and continued
it thus : And whereupon the fuid t^. by R. B.
bis Attorney y complrinsy that whereas the faid
C. on the faid \oth Day (?/ Novenmber in
the faid fecond Tear of the Reign f£c. at W.
aforefaidy in the County aforefaidy was indebted
to the faid K. in the faid Sura of 20 1 . of good
and lawful Money of E. for divers Goods y
WareSy i^c, (and fo on with the very fame
Complaint over again, concluding the De-
claration with) to the Damage of the faid hy
forty Pounds y and thereupon he brings bis
Suit *, Cs?c,
* j^nd therefore he brings his Suit, Ifc, which is an
Offering to verify by Witneffes the Caufe of Com-
prlaint ; but againfl an Attorney, that Form wa$
never in Ufe, but it was by way of Petition to the
Court, and therefore he prays Relief l^c, becaufe At-
tornies and Officers of the Court were privileged Per-
fons. This, l^c. is made by a modern Writer to fup-
ply thefe Words, " Jnd hath good Proof of the Pre-
*' jnijfesy 'when the Court <will confider thereof** And
it is very probable fome fuch Words v/ere anciently
ufed^ feeing they are properly anfwered by the ^andoy
i^c. in the Plea, *viz, ''When and mshere the Court
*' ivili conjider thereof* whieh is now fupplied by
*when, i^c, for if fome fuch Words were not to be
underllood, the ^c, in e^ch is fuperfluous ; but we
find by our oldell books and records, that Et inde pro-
ducit feSl* ^c. and i^ando, ^c. have been always
ufed for a formal Conclufion of the Declaration and
no-
But
An Hijiorical ^reatije of a Suit at Law, 75
But this, at length, was thought a very ^eat
Grievance to the Subjeft, fo very unneceffarily
to double the Declaration ; and therefore, by
the Rule in the Time of Charles II. made fqr
fettling and regulating 3, Courfe of Praftice and
Pleadings, (a Thing which may be thought
wanting at prefent) it was ordered, for avoid-
ing long and unneceffary. Repetitions of the
original fVrit^ in Aftions. upon the Cafe, and
pcribnal Aftions, penal Statutes^ fcf r. that De^
claraiions in ASlions of Trefpafs, upon any gene-
ral Statute^ (^c. other than Debt^ Jhould not re-
feat the Original, but only the Nature of the
ASlion. This brought the Declaration to the
prefent Form, viz.
B . ff. C. D. late of W. in the /aid County^
Teomany was attached to anjwer to A. B. in
a Plea of^refpafs on the Cafcy fcfr. and where-^
upon the faid A. B. by B. R. his Attorney y
complains that whereas the /aid C. on the
10th Day of November in /he fecond Tear
0/ the Reign was indebted to the /aid A->
in the Sum of
The whole Recital of the Original being
fupplied by that, ^c. and therefore that, fefr .
in the Common Pleas here, ought ^not to be
omitted in the Declaration^ it being at pre-
fent, a neceflary Part of the Pleading; for a^
it fupplies the Original, fo it alfo fupplies the
Return thereof, and is the Rcafon why no
Pledges are added at the End of the Declara-
fion, as is ufed in the King's Bench, when the
Proceedings there are by Bill, and not by
Original. Before this Rule, there was, as be-
fore obierved, a Neceflity for an Original to be
^ Ah Hifiorical treatije of a Suit at LatJo^
Aied out at the Commencement of the Suit,
which was a Guidt for drawing the Declaratim
by, fo that they might agree ; but afterwards,
as the Original was not to be repeated, there
could be no Occafion for one, for that or any
other Purpofe ; confequently, it muft be fup-
pofed, that foon after this Rule the fuing out
Originals began to be omitted.
Notwithftanding this Rule, the Recital of
the Original is generally ufcd in ^ui tarns, and
pretty fully in Aftions of Trefpa/s in this Courts
wherein it may be as well omitted, as it is in
Cafe. The Declarations themfelves will cieauiy
(hew this.
Now in the King's Bench by Bill, they were
not confined fo ftriftly in drawing the Declara-
tion, as a Fault therein was not attended witK
fiich "an Expence to the Client to amend it, as
it might be amended by the Bill upon the File ;
and in cafe there was any Fault difcovered in
the Bill, that might be amended, fo as to war-
rant the Declaration. But a Fault in the De-
claration in the Commen Pleas often put the
Plaintiff to the Expence of purchafing a new
Original ; for the Declaration being grounded
on the Original, they were to agree together 9
and in cafe any Fault was difcovered in thi
Original itfelf, it could not be helped but by
the Purchafing, /. e. praying for, fuing ou^
and returning a new original Writ. HqweveTj
as in the Ring's Bench the Defendant was liip-
pofed to be in the Cuftody of the Marftial <rf
the King's Marjhalfea, they always begun the
Declaration with Relation to the Bill filedj
©r fuppofed to be filed, in this Manner, viz^
I B
Jjk WfioricdA tnatije of a Suit at Law. ^^77
. AT. A. D. ۤmplains of C, D. beingin
the "^ Cuftody^ of the Marjhai of the Marfhs^ea
«ia*i
• Until lately, one could not declare againfb a
Defendant in the Kiftg*s Bench, who was neither in
the Cuftody of the Marjhcd, or who had not Hied his
'BbuI\ for «a aberwifii could die Defendant be faid
ta bt in Cwrt ; and confequenUyt the Court had no
Cogmaance of any Matter againft him. And there^
fere, iTa De&ndant was in. C'ufiody of a Shertf, in a
County Gftoi^ upon the- Pix>cefe of this Court, the
^aiotiflF was obl^ed, firtt to bting him up by Habeat
fSmffuJi, and turn him over to the Marjial, in order
to declare againiL iiinu And this Ceems to be the
flro^geft Evidence t)iat can be, that anciently, every
Defendant in this Court was to be really in the Cuf-^
t§efy^ rf tb^ Marjhaly beftM-e any Proceedings could
he had;, or this. Court could takei Cognisance againft
him on any Civil Matter ; for this was the Ground'^
mwek of the CQurt!& Proceeding. Bat by the 4 ^ 5
IF* W Af . r. 21. Leave is given to the Plaintiff to
decluvt againfl a Defendant in the Cufiody of the ^he^
riff or Bailiff, as efFe^ually as if in Cuftody of the
Marjhal, (b that the Declaration fets forth in ^whofe Cuf-
tody the Defendant is. Obicrve then, if the Ground'-
nvork is not, by this Statute, quite fubverted ; if not
by this Statute, how is it when a Defendant is not in
Cufiody at all, nor has entered, any Bail, as is the
Cw, when a Defendant is ferved with a Copy of a
Procefs only, and the Declaration is left in the Of-
fice^ and yet he muft be declared againft as in Cuftody
of the Morjhal f It need not be further observed,
how much the prefent Pra^Uce deviates from the true
Reaibn of declaring againil a Man as in Cuftody of
the Marjhal ; but feeing it runs counter to Trudi,^ and
the y^ry Nature and Reafon of the Court's proceeding
in a Caufb, why (hould this antiquated Cuftom be
continued ?
^
78 AntiifioncalVreatife of a Suit at La'ui.
of our Lord the Kingy before the King himfelf^
for thisy to wity that whereas the /aid C. on
tht loth Day of November, ^c. was in-
debted to the /aid A. in the Sum of, &c.
(adding Pledges at the End thereof, viz.)
* Pledges to pro/ecute, John Doe and Richard
Roe.
By this it will appear that the Relation the
Declaration has to the Original in the Common
Pleasy and the Relation it has to the Bill filed,
or fuppofed to be filed, in the King's Bench,
is the Reafon of the Difference, in Form, of
the Declarations between the two Courts 5 for,
was it not for the Original, and it's fuppofed
Return of Pledges in the Common Pleas, there
would be no Occafion for that, &c. at the Be-
ginning of the Declaration there, to fupply the
• Can any good Reafon be afligned, why Pledges
are ufed in the King^s Bench (and alfo in the Cm-
mon Pleas) when it is againft Attornies or Oncers of
the Court there, and not by Original ? Did ever
any Procefs iflue here requiring Pledges ? And yet
thefe are continued with much Exa&nefs, and are
the Support of the Memorandum at the Beginning of
the IJfue. And the formal and feigned Pledges were
thought {b material, before the 4^5 Ann<gy that die
Want thereof was a Matter of Demurrer, And iince
then, if by Chance they have been omitted. Summons's
have been, and may be taken out, for the Plaintiff
tojhenv Caufe why he fhould not amend his Declaration,
by adding them, A fine Amendment truly ! which a
litigious Defendant feldom omits to avail himielf of,
when he wants to protraft or delay a Suit, and it ihcws
the Mifchiefs that may arife through the Ufe of Pled-
ges.
Original
An tiijtortcal Trealt/e of a Suit at Lani). y^^
, ... .
^rigin^l and Return. And was it not for the
brnmal fnppofing the Defendant to be in Cufi
^ody of the Marftial, in the King's Bench y there
^ould be no Occafion for fuch a fiStitious Be-
ginning, nor for adding Pledges, at the End of
:hc ibedarationy nor confequently for the Me-'
norandum at the Beginning of the Iflue, in the
King^s Bench 'y but the Declaration might be
nore plain,^ limple, and fignificant in one and
che liKe Form in both Courts, wherein the
Defendant's Addition, and the Nature of the
Aftion, fhould appear, viz.
B to wit. A. B. iy R. B. his Attorney ^
' complains of CD. late of W. in the Jaid
' County ofB. Teomany of a Plea of
for that whereas the Jaid C. on the lOth Day
^November in the Year of our Lord 1762,
- at W. in the Jaid County y was indebted to the
Jaid A. iny &c. And therefore he brings his-
Suit, fcfr.
The Court fuch Declaration is in, would ap-
pear by the Chief Clerk's, or the refpeftive Pro-^
thonotary's Name at the Top of it.
There are fdlrie Particulars taken Notice of
by ouF Books, wherein a Declaration in ^ne
Court differs from that in the other; but un-
lefs it be in the formal Beginning of each, it
is prefumed thefe Differences are very imma-
terial : • as whether an Alias Difi' be in or not>
of a Profert in Cur' rn the Body, or at the Eiid
of the Declaration ; and fo of Letters ^ejia-
fnentary, fcfr. or whether it be in the Year of
our Lordy or in the Year of the Reign of the
King, feeing all thefe are almoft now ufed in-
differently.
Formerly;
89 jinlUfiorual ^rtatije of a Suit at Lavt.
. Formerly, indeed, when On^wr^?/^ wcrt fued
out as the leading Proceffes, then if an Aliat
Di£l\ or Year of the Reign, fc?^. was in the
fVrit^ it was neceflary the fame fhould be in the
Declaratiotiy to agree with it. So likewife in
Reference to the ancient Pradtice in the Com^
won Pleas in Deity Covenant, Accounty Annuity,
Detinue, and Replevin, wherein the Defendant
was ufed to htjummoned on the Original, the
Declaration faid, Summonitus fuit ad rejpondeth
dum, i^c. And in "Trefpafs, Cafe, Trover,, and
EjeSlment, wherein Attachments were ufed, it
faid, Attacbiatus fuit ad refpondendum, 6ff,
And fo, even at this Day, thefe formal Words
j&ill continue in Ufe in the Common Pleas, not--
withftanding the Pradice to which they relate
has been difcontinucd fomc hundred Years.
What religious Obfervers of Antiquity have
the Praftifers of the Law been, in all Things
^hat were not abfolutcly forbidden them !
But the better to obferve the Difference, \tt
us perufe a few Forms of Declarations in each
Court in Debt, Cafe, and Trefpafs, as they arc
at prefent in ufe.
SDec(aration0.
%%t common fojmal ist^miti^ of ff
Declatatftrn fn tfie ftf ng'sa 'Beiictr^
Berkftiire, to wit. A. B. complains ef C.D»
hing in the ♦ Cttftody of the Marfhal of tti
^ The Defendant being alledged to be in the CuftoJ^
6f the Mar/htdl, there wa& no Occasion for ally fUjrtker
Addition to his Name ; and this is the Reafon i¥by it b
oiQitted inr tkt King;'s Bench.
Mar(halie4
, /Jb Hifiorical fredtife ' of a Suit at taw. 8 X
Marfhalfea of our Lord the King, before the
King himfelf for tbis^ to wit, that wheress
tbejaid C; (Sc. and ends with
f John Doe
Pledges to profecute,^ and
• ^ Richard Roe.
h , ■ . . .
d)e tommott fo^al l^tQimine of a
Declaratioh fn t^t Common pieas,
in Cnfe, Crerpaf^i, Ctotiec, anti Ciea-
ment*
■
JScrkftiirey to wit. C/D. /ate of W. in thd
JdidCbufity^ofh. Teomatiy was attached to
* anfwer to A/B. of a Plea of Trefpafs on th6
-f Cafe, &c. and whereupon the Jaid A. B.
^ R. B. his Attorney y complains , that where^
as the f aid Q^ on the, fcfr. without adding
any Pledges.
V
N. B. If the Aftion be in Debt, Detinue, Co-
venant. Account, Annuity, or Replevin, then it
mull be, fVasfummoned to anfwer.
• By the Court of Common Pleas the County in
the Margin is Part of the Declaration, though not held
fo in B. R. and this of B. may therefore be omitted, as
*tis fuperfluous.
f This bfr. is neceffaryi arid ought not to be omitted,
becaufe it fupplies the Recital ofthe Original :ind Return of
Pledges ; and thfc Reafori why there is no ^r. here in
Debt, Tre/pa/sy ^c. is, becaufe in thefe you fee, the
Originaf is in Part recited, notwithllandihg the R. in
G aoe.
|2 An HiftoricaJ ttiatife 9f a Suit at l^ur.
9 Declotratfon in Debt on OSonH in tije
Berkfhire, to wit^ A. B. ^mfiains vf C. D.
^^i>f i» tbe Cuflody cf the Marjhal cf the
Marfhalfea of our Lord tbe King, before tbe
King bimfelf^ ^ of a Flea that he' render 'to
the /aid A. lool, of lawful Money of Crcac
Britain, wbicb be owes to and uyujlrf detains
from bim^ for tbis, to wit, * Ibat wbsreas the
pate, f^id C. on tbe loth Day of May./» tbe Tear
of our Lord ij'io^ at W. ijti the faid Coun^j,
by bis certain fVrtiing Ohlifratoiy^ feaUi with
tbe Seal of tbe faid C* ana to the Court of
Vrofert. Mr faid Lord tbe King, nm btre fbevon. f,
. the
* When the King*s Bench took Cognizance of Debt
hy Original^ they purfued the Form of the Commow
pleas in the Declaration, in this Place ^^ ibr it is pkk,
this is a RecitaJ of the Original Writ, as in the Common
Pleasy and can no ways here relate to any Procefs out
of the King's Bench, and therefore thefe Words, Of
a Plea that he render, l^c, fhould (as is conceived)
be omitted in the Declarations in D^ht in B, R, when
the Proceedings are not by Original, as generally they
are not.
f The Reafon why a Deed that is pleaded ought
to be fhewn to the Court, is, beca^fe every Deed
muft prove itfelf to have fufficient Words, whereof
the Court muft adjudge; and it is alfo to be proved
otherways, as by Witnefles, or other Proof, if the
Deed be denied, for that is Matter of Fad.* i- lufi.
121. b.
Of every Deed pleaded, with a Profert hie in Cur\
the other Party is intitled to crave Oyer, i, c, to hear
it;
' M^.
An Uiftorical Trtatije of a Suit at La^. 8j
the Date whereof is the fame Day and Tear
above^ acknowledged bimfelf to be bound to
the faid A. in the faid i oo 1« to be paid to
the faid A. whenever he the faid C. Jhould be
thereunto required. Tet the faid C. although Breu^du
often required^ Gf a bath not paid to the faid
A. tbe faid lOO 1. but bath hitherto refufed^
and ftill doth refufe to pay the fame to bim^
t9 tbt Damage of the faid A, 20 1 and there"
fore be brings Ins Suit^ iSc.
R. B. for the Plaint. C , ^ ^ 7 ^- ^f J^
B. R. for the Dcf. | ^^^P^ ^o profecutc | ^^ ^^^ Pledges.
9 Dfclaiatfon fn Debt on IBonn fn tfje
Common piea9*
Bcrkfhire, to wit. C, D. late of W. in the
faid County, Teoman^ was fummoned to anfwer
to h.h. of a Plea^ that be * render to him
100 !♦
it ; which is now generally gjveh by making a Copy
6f fuch Deed for him. Oyer is an old FrencJ^ Word,
and was anciently ufcd for what we now call Affixes^
Anno 13 -ff, I. And the Juitices Commiffion, a Com-
miflion of Oyer tt Terminer ; thoagh anciently every
Deed that was pleaded was ai^ally brought into Court,
and could not be taken out again till after the Matter was
detennined.
• This is a Recital of Part of the Original with
an feV. to fupply the Remainder of it, with the Re-
turn thereof. The fame is in the Declaration on a
Mutuatus, and others in Debt. And though this
formal Fart is copied from rfie Common Pleas by the
G 2 ' King'^
$4 * -^^ Hijiorical treatije of a Suit at Law.
lool. which he owes to^ and unjuftly detains
from bim^ tfr. and whereupon the [aid A. hy
R. B. his Attorney^ complains^ that whereas
the faid C. on the lotb Day of May in the
Tear of our ^Lord 1730, /»/ W. in the faid
County, by bis certain IVriting Obligatory,
acknowledged himfelf to be bound to the faid A.
in the faid 100 1. to be paid to the faid A.
whenever he the faid C. fhould he thereunto
required •, Tet the faid C. although often re*
quired, isfc. hath not paid to the faid A. the
faid lOol but hath hitherto refufed, and fill
doth refufe to pay him the fame, to the Da-
mage of the faid A, 20 1. and therefore he
brings his Suit, &?r. ^nd the faid A. brings
here into Court the aforejaid Writing Obliga-
tory, which tejiifies the faid Debt in Form
aforefaid, the Date whereof is the fame Day
and Year above mentioned.
iV. B. ,The moft material Difference rn thefe
is in the formal Beginning of them, elfe they
may be ufed indifferently for either Court, it
being not material whether the Profert in Cut*
be in the Middle or End of the Declaration;
though it is prefumed this in the Common Pleas
King's Bench, yet it ought to be without the ^c,
there being nothing in the King's Bench to be fupplied
by the ^c. therefore this Part of the Declaration therein
had been beft omitted. And the Declaration thus, A.
B. co7nplains of C D, being in the Cufiody of the Mar-
Jhal of the Marihalfea of our Lord the King, before
the King himfelf for this, to nvit, that ^whereas, tic
without any, of a Flea that he render, lie, either in Debt^
or on a Muiuatus,
is
y& Hiftorical 'Treatife of a Suit at Law. 85
is the moft ancient Form. Letters Teftamcn-
tary, fsfr. are always at the End in both Courts,
becaufe the Profert in Cur^ of »thefe cannot well
be introduced in the Body of the Declaration.
3Itt 2?el)t on 15anlr, toftlj an Alias Dia*
in t&c ming'sf 15enc[)^
Berkfhire, to wit. A. B. complains of C. D.
otherwife called CD. of W. in the County
pfBf Teoman, being in the Cujiody^ (^c.
3[n tDe Common pieaisf.
Berkfhire, to wit, C. D. late of W. in the
faid County^ Teoman^ otherwife called C. D,
• of W. in the County of Berks, Yeoman^ was •
fummoned to anfwer to A. B. of a Plea^ that
^c.
If an Alias ViSP is ufed, it ought to be Zi-
teratimy as in the Bond. An Alias diii* was
never neceflary in the King^s Bench, and how-
ever neceflHry it might have been formerly in
the Common Pleas to agree with the Original,
it is not fo now, but is thought to be belt
omitted, to avoid the Rifcjue of making ^
Miftake therein,
^ Declacatfon on a {^utuatu0 (n tDe
mfns'iS 'Bcncfj,
Berkfhire, to wit. A. B, complains of C. D.
being in the Cuftody of the Marlhal of the
G 3 Marfhalfea
€C
86 jAi Hiftortcal ^reati/e of a Suit at Law.
Marihalfea of our Lord the King, before the
King himjelf " of a Pledy that be render to
** thejaid A. 50 1. of lawful Money of Great
'* Britain, "which the /aid C. owes tOj and
unjujily detains from him^' for thisy to wit,
that whereas, the faid C. on the loth Day of
May in the Tear of our Lord, 1730, at W.
in the Jaid County of B. borrowed of the faid
A. the faid fum ^/5ol. to be faid to the faid
A. whenever he the faid C. Jhould be there-
unto afterwards required -, yet the faid C. al-
though, &?^. The Breach and Pledges as
before.
£>n a ^utuatujS fn t^e Common pieaisf.
£crkfhire, /tf wit, C* D. late ofW. in the faid
County y Gentleman, wasfummoned to an/wer to
A. B. of a Plea that he render to the faid A.
50 1. of lawful Money of Grczt Britain, which
be owes to, and unjuftly detains from him, i^c.
and whereupon the faid A. by R, B. his At-
torney complains, that whereas the faid Q.
on the 10th Day of May in the Tear^ of our
Lord, (s!c. The fame as above, * without
Pledges.
a Declaratfon fit Cafe fn ti^e Mn^^
oaencfi.
Berkfhire, to wit, A. B. comtlains of C, D.
being in Cufiody of the Marjhal of the Mar-
ihalfea of our Lord the King, before the King
bimfelfy for this, to wit, that whereas the
Jaid Q on the Day of in
% the
An Hijlorical Tr&aHJe of a Suit at Law. 87
the Year ofmr Lcrd 1740, at W. in the /aid
County of B. vms indebted to the faid A. in
the Sum of 30 L of lawful Money of Great
Britain, for divers Goods j Waresy and Mer-
ehandizes, i^c. Or for Money lent. Work
done, &V.
3iti Cafo in %^t Conmion I01ta0.
Bcrkfhire, to wit. C. D. late ofW. in the/aid
County y Apothecary y was attached to anfwer
to A. B, of a Plea of Trefpafs on the Cafe^
isfc. and whereupon the faid A. iy K. B. his
Attorney complains^ that whereas the faid C.
on the Day of in the Tear
of our Lord 1740, at W. in the faid County
of B. was indebted to the faid A. in the Sum
of 30 1. of lawful Money of Great Britain,
for divers Goods y ^e.
Declarations in Cafe differ only in the formal
Beginning of them, and adding Pledges in the
King's Benchy and omitting them in the Com-
mon Pleas. And in this only, in the Common
Pleas, is truly expreffed the Nature of the Ac^
tion, viz. Trefpafs on the Cafe; whereas in the
others it is ftt forth in the whole Subftance of
the Declaration,
a Declaratfon in Crefparjat fn t^e
Berkfliire, to wit. A. B, complains of C. D.
being in the Cujlody of the Marjhal of th^e
G 4 Marfhalfca
88 * * AnHiJiorical^rtdtiJe of aSuttat Law,
Marflialfea of our Lord the King^ before the
King bimfelfj for this^ to wit^ that wBereas
the f aid C. on the Day of
in the fecond Tear of the Reign of our Sove-
reign Lord George the Thirds now King of
Great Britain, i^c, at W. in the County of
B. with Force and Arms, to wit, with Swords ^
Staves^ Knives^ Fifls^ and Feet^ made an Af-
fault upon the faid A. and beat ^ wounded^
and ill-treated him^ fo that his TJfe was dt*
ff aired of^ and then and there other Injuries
to him did^ againji the Peace of our faid Lord
the now Ktng^ to the great Damage of the
faid A. of looL and therefore bf brings his
Suity £sfr.
Pledges, fcfr.
3!n Crefpafis (n tfie Common pieaiJ,
perkfliire, to wit. C. D. late of W. in the
' faid County^ Teomany was attached to anfwer
to A. ^. of a Plea^ wherefore with Force and
Arms he made an Affault upon him the faid
A. at D. in the faid County of B. and beat^
woundedy and ill-treated him^ fo that his Life
was greatly defpaired of and then and there
other Injuries to him did^ againji the Peace of
cur faid Lord the now King^ fcf r. and whercr
upon the faid A. by R. B. his Attorney ^ com^
plains y that whereas the faid C. on the
Day of in the fecond Tear of tbe
Reign of our Sovereign Lord George the Thirds
now King of Great Britain, &ir. at D. in the
faid County of B. with Force and ArmSj to
wit^ with Sword J Staves^ Knives^ Fijls and
Feefy
An UifionccA ^reatife of a Suit at Law. $ j
Feet J made an yljfault upon the faid A. and
teat J wounded and , /'// treated bim^ fo that
bis Life was defpaired of^ and then and there
other Injuries to him didy againji the Peace^
fcfr. to the Damage of the faid A. lool, and
therefore he brings bis Suity 6f f ,
Thefe few Sketches of Precedents are only
to (hew the Agrecnnent there is between the
Declarations of both Courts y and wherein they
differ from each other; which, as obferved,
is only in the formal * Beginnings, and is
owing to the Reference they have to the Billy
and the Original in the refpeftive Courts, though
in fome in the Common Pleasy efpecially thofe
in ^refpafsy we find the Original more fully fet
forth than in the others. And now, in ^i
tarn Anions y the Original is generally all re-
peated, notwithftanding the Rule of Car. 2,
to reftrain the Repetition thereof.
^efore we depart from this Head, there are
yet two Things to be taken Notice of, that is,
the Venucy and the Day of the Aftion.
With refpeft to the Venue, it is faid, that
on the fettling of Ni^ priusy they obliged the
Plaintiff to try his Aftiqn where it accrued,
becaufe the Jury was to come from where the
FaS was committed. But while the Procefs
was by Attachment and Diftrefsy which could
* As to the formal Beginnings and Conclufions of
Declarations in particular Cafes, as for and againft
Executors or Adminiftrators, Affignees of a Bankrupt,
Attornies, cf c, they are to be teen in the printed Books
of Precedents.
be
JO Af HiJeHtal Treat j/i $f a Sint at Law^
be only where the Defendant's Gcxxis were, it
begat a Diftinftion between Aftions ; the one
being called Tranfitaryy which related to GoQds
and CheUtelSy and was to follow the Defendant
wherever he could be found; the other was
called Localy becaufe it related to Lands^ and
the Procefs was to be on the Lands. Theje
were to be laid in the County where the Landi
lay; but in 'Tranfttory A£lions the Plaintiff had
Liberty to chufe his Vmuey being fuppofcd td
lay it where the Aftion accrued; and in cafe
Defendant fled fronn that Place, the Plaintiff
had Liberty to try his A6tion in the County
wherein the Defendant -wdisfmnmoned. But this
came at length to be much abufed, for the
Plaintiff would lay his ASiion far from the Plaa
where the ASlion arofe, which put the Defend-
ant under a Neceffity of carrying his Wit-
neffes into a County far from the Place. Iri
order to prevent this, the 6 R. 2. was made,
which enafts that Writs oi Account ^DebtSy &c.
Ihould be commenced in the County where
the Contrasts were made ; for if the ContraSs
were made in another County than contained
in the Original^ the Writ fhould abate. But
this Statute (it is faid) was never put in ufe,
for it was thought the Plaintiff could not then
follow the Defendant into another County, and
it was forefcen that many other Mifchicfs
would arife; therefore the Judges affumed a
Power of changing the Venue. The Alteration
began in the King's Bench^ for there, where the
Procefs was by Billy they could eafily change
the Venue ; but in the Common Pleasy where they
mutt have an Original to warrant their Pro-
ceedings, it was more difficult: Therefore
here>
/
An Wftorical ^reatife of a Suit at Law. 51
here, at firft, the Plaintiff was obliged to fuc
out an Original^ where the Aftion arofe ; and
then a * ^ejiatum Capias into another County
where the Defendant was to be found. But as
this was tedious, chargeable, and inconvenient,
this Court began to change the Venues and al-
lowed the PiaintifF to file a new OrigirM to
warrant his Declaration. Thus it continued
until 21 7. I. whereby Perfonal and ^ranji-
tory A&ions, as Debt, Detinue, yijfault and
Battery, isfc. may be laid in any County.
However, die Courts, notwithftanding this
Statute, upon an Affidavit, that the Caufe of Ac-
tion arofe in fuch a County and not elfewhere,
will of Courfe change the Venue to it^s proper
County, if not laid fo ; and this is now a Motion
of Courfe. But Local Aftions, -as EjeSments,
JVafte, Tre/pajfesy ^are claufum fregit, i^c.
nnuft be laid in the proper Counties where the
A&ions arofe, or where the Lands lie.
With refpeft to the Time of laying the Ac-
tion : In Debt upon Bond, or upon a Note,
&fr. the certain Day is deduced from the Bond
or Note itfelf, and confequently will appear
by the Declaration thereon. But in all Ac-
tions upon the Cafe, Trefpafs, AJfault, Battery,
&fr. we are not obliged to lay the certain Day,
the Caufe of Aftion arofe, in the Declaration j
but if it be laid on fome Day after the Caufe
of A6lion arofe, and before the Commencement
• ^^tre, if this did not give Rife to the Teftatum ^
The like Ufe of a Teft. (till continues, and in many In-
(lances is deemed abfolutely necefTary, notwithftanding the
Allowance to file a new Original.
of
a2 An WftorUal ^reatife of a Suit at Law.
of the Suit, it is fufficieot. And it is with
. great Reafon this is-~^llowed, as in fonie Cafes
it may be impoflible for a Plaintiff to afccr-
tain the Day by Evidence, or it may be for-
got, fcfr.
SPf Jmpatlanceief, &c.
Formerly the Declarations ufed to be entered
upon the Roily then filed and docketted ; and
* Continuances ufed to be entered thereon from
that Term until the Defendant pleaded to IfTue,
or confeffed the Aftion ; becaufe then, in moft
Cafes, the Defendant was net obliged to plead
the fame Term that the Declaration was of,
but he was intitled to an Imparlance y i. e. Time
to imparle or plead from that Term to the
next fubfequent Term.
In the King^s Bench the Defendant had an
Imparlance, vel Licencid Interloquendiy in all
^ A Continuance was the continuing the laft Pro-
ceeding upon the Roll from one Term to another, and
{o on, that no intervening Term might appear, for if
there did, the Party not making fuch Continuance to keep
Iiimfelf as a£ling in the Caufe, was faid to be out of
Court; and fo if no Entry of an Imparlance appeared
^ in the Declaration, the Defendant might have iigned a
Non pros, or demurred* But now the Statute of Je^
failU, 21 y. I. helping the ^ling and continuing has oCn
cafioned the Difufe of it, for a BUI, or Declaration, is
jiow never ingrofled and filed, and confequently no Con-
tinuances entered thereon but in particular Cafes ; for if
tl^ere is no Writ of Error, there needs no Bill to be filed,
though it is always charged, and allowed for as done
in the Kin^^s Bench, becaufe, I fuppofe^ it may be requir^^
0d to be done.
Cafts
\
An Ktfiorical "tnatife of a' Suit at Laiio. 95
Cafes ; for being arrefted on a general Writ of
Bill of Middlefexy or Latitat ^ wherein no Caufe
of Aftion appeared, confequently he could npt
l^now the Caufe of Adion, nor,, how to makfs
his Plea, until the Declaration. vf^i^ entered^
and therefore was very re^fqaabtiy ^ indulgqd
with an Imparlanf^i . w' .
But in the Common Pleas it was not generjfl^
for in fome » Cafes . the Defendant- had an ii9<-
parlance of courfc, in others not :i for Jnftancfp^
If tfic Defendant appeared ypon an Arrcft
by a common Cla^fum f regit y he. had an Imr-
parlance of courfej. but if the; Writ had bec[i
fpecial> ' according to the Truth of the Aftiog,
and returnable the firft or fecond Return . of
the Term, thq^.tliyg Defendant was to plea^
that Term, becaufe the Plaintiffs Complainp
or Declaration being fet forth in the IVrii,
the Defendant could thereby know the Caufe
of.;A6tion, and how to make his Defeacej
and therefore in that Cafe, as he already had
fome Time to confider of iti and prepare
his Plea from the Summons y there was the
lefs Reafon fof his having- further Tirpe .of
courfe, efpecially fo long Time as an Impar^
lance. But in all Real Adions the Defendant
was intitled to B.n Imparlance of courfe.
Although in the Common Pleas the Defendant
was indulged with an Imparlance, according to
the Cuik)m of this Court's Method of Pro-
ceeding, yet it was not cuftomary, or the
Practice of this Court, ever to make any Entry
of an * Imparlance on the Roll, or in the Plead-
ings,
* And yet in an Ejcdlment Caufe (becaufe it's in
the Nature of a real Adion) an Imparlance mud be
entered
94 ^^ Hiftortial trtaiifi of a Suit at Law.
ings, othcrwifc than in this Manner at the Bot-^
torn of the Declaration, Imparlance to the firft
Day of next Term, which never appeared in the
Record j for what did it fignify to the Court
•whether or no the Defendant pleaded the fame
Ttrm the Declaration was of, er not ?
But in the King*s Bench they always entered
the Plea with the Imparlanee before it, which
was either general, when Defendant was in-
titled to it of courfe, and entered thus, And
ftow at this Day, that is to fay, Friday next af-
ter eight Days of St. Hilary, (being the firft
Return of that Term) until which Day the faii
C. had Ledve to impark to the f aid Bill, and
fhen to anfwer, 6fr. Or ciftjpeeial, which was
^granted by the Court, and was prayed when
the Defendant wanted to plead fome fpecial
Plca^ which he could not plead after a general
Imparlance, (for there were feveral Pleas in
Abatement and Bar, which the Defendant had
no Right to plead after a general Imparlance)
and therefore thefe Words were ufually added
thereto, Saving all Advantages, as well to tht
JurifdiStion of the Court, Us to the Writ and
Declaration, &c.
But now by a Rule in the King^s Benck^
Trinity 5 6? 6 Geo. 2. * Imparlances, in Ibmc
RefpeAs, are taken aways for it is hereby
•
entered with the Prot/jonotary, t. e, the Prothonotdry mvA
be paid 2 j. for the Entry of an Imparlance, though none il
made.
• To take away the Imparlance, or Time to plead ifl
the Common Pleas, a Rule was made^ Mich. 3 Geo. t, to
the like Purpofe^ from whence the Rule in the Kin^s
Jfencb wa^ taken.
ordered
AnHiftorical treatije of a Suit at Law. y^
ordered. That if die Writ be returnable the frji
w/econd Return of any Term, €sfr. then if the
jdteclar^tion be delivered with Notice to piead /our
Da^s iefore the End of the Term, the Dcftn^itii
(hdl plead the fame Term without any Ifnpar-^,
lance $ but if the Writ be not returnable the frjl
or/econd Return 5 or in cafe it be, and the De-
claration is not delivered with Notice to pkad
^four Days before the End of the Term, then. the
Defendant has yet an Imparlance. So that atf
Imparlance now depends on the Return of the
Writ, and the Delivery of the Declaration, and
coh^quently the Entry thereof.
Wijenevcr the Defendant is intitled to an
Jmj^aHahcey the Entry ef fuch Imparlance h
mide before the Plea as above, ^iz. And nozi;
Mt this Dityi that is to Jay^ * Friday next after
ei^ht Days of St. Hilary in tl is fame Term,
(uMil '^ich Day thefhid C. had Leave to im^
parte to the faid Billy and then to anfwer there--
n^tif) before our Lord the King at Weftminfter
came a^ well the faid A. hy his- Attorney afore-
Jtxidy as the faid C. ^jr R. B. his Attorney ; and
the faid C. defends the JVroytg and Injury wheny
. Gf r. and faith that Then follows the Plea,
* This is always the frft Return of the Term the
Flea is of, becaufe by the Courfe of tlie King*s Bench they
never entered Continuances until the Pjea came in, though
the Declaration was delivered four Terms before ; nor
do they now make any Continuances from the Decla-
ration to any intervening Term : A^s fuppofe the De-
claration of Eajier Term, and the Plea of Hilarj
next, no Notice is taken of Trinitj and Michaelmas
Term. See fofi, of making up Ifu^s.
An
$6 Jn Hijkrical ^reati/e of a Suit at LofQ}^
An Entry of an Imparlance in this Manner^
is thought to be neither a material, nor a ne-
ceflary Part of the Pleadings, from it's'having
never been ufed in the Common Please and ac-
cording to'the prefcnt Pra6lice of this Court,
fueh an Entry is not made, when a Plea is
of the Jame Term with the Declaration : And
what indeed does it fignify to the Couft, whe-
ther or no it appears by the Record that -the
Defendant pleaded the fame Term; .or not*?
And rf it is not neceffary, the Queftion will be;
Whether the Ufe of it js in^ any Refpe6t hurt-
ful ? ' One need only confult the Notes of*
Practice to fee what Mifchief has att;ended the
Ufe of it, for though it doth not much lengthen
the Pleadings, it often ferves to perplex them^
and leads the youngPraftitioner into Miftakes;
for* Inftance, The Declaration was off Hilary
Ternri, the Defendant; did^ (as he may, and
ought to do) deliver his Plea ^1/)^ an Impar-^
tame of Rafter Terni ; the Plaintiff took I£iu
on this Ple'a^ and as he could not alter the De-
fendant's Entry of the Imparlance^ he was .obli-
ged, to make, up his IJJue of that Eafter Term,
and cohfequently award the Venire of that
Term ; though he did not deliver the Iffue till
after Trinity Term^ becaufe he could not (as
it was a Country Caufe) go to the Trial until
* Is there hot as great a ' Reafon for ufing fuch
an Entry before a Replication, Rejoinder, or other
Pleading, as before, a Plea ? Thefe fhall be intended,
when they are entered of Record, that they were made
of the fame Term in which the Plea came in. Why
not the Plea of thr fame Term with the Declara-
tion*
the
ff
An yyiorical Treati/e of a Suit at Law. 97
the AJfizes following. Now what was the
Confequence of this ? Why, when the Plain-
tiff came to pafs his Record for Trial, on an
old Iflue, he had to pay the Clerk of the
Dockets for a foft Herminum^ and 4 j. % d. to
the Clerk of the Treafury for a foft Roily fefr.
All unneceflary Sums to be paid by the Plaintiff
or Defendant, and yet this frequently happens.
But this IS not all, for it is frequently the
Occafion of greater Mifchiefs, as when the
Judgment comes to be entered up, it muft be
entered up with Continuances on the Roll by
* Vicecomes non mijit fireve from the Return of
the Venire to the Tejie of the DiftringaSy which
Entry of the Continuances y it is believed, is
frequently forgot, and oftentimes omitted ; and
this through the Ufe of an Imparlance. And
yet, if this formal Entry is not properly ufcd,
the Court, in all Probability, will fet the Judg-
ment afide, or allow it as a Matter of Error !
It is confcfled, that in order to avoid pay-
ing Pojt-terminumsy i^c. k is mod ufual for the
Defendant to deliver his Plea without the Entry
of the Imparlance before it, which leaves the
Plaintiff at Liberty to make the Imparlance to
the fame Term he makes up his IJfue of, which
may be three or four Terms after the Declara--
tion and Plea. But why fhould any Inlet to
Miflakcs or Impropriety remain in the Plead-
ings, when it may be removed without any
Inconveniency whatever ? And therefore would
it not be better to difcontinue the Ufe of the
Entry o( Imparlances in this Court, as it is in
the Common Pleas ?
• See under the Method of entering up Judgments in
the Kin^s Bench.
H Of
jS ^n Hijiorical l!reatije of a Suit at Law.
Of t&e piea, anu pieaWnff0.
A Tlea is Gommonly taken for the Defend-
ant's yinfwer to the Plaintiffs Declaration,
though it may in general be taken for that
Avhich either Party alledgeth for hinnfelf in a
Court, in a Caufe there depending j and con-
fequently Pleadings^ in a large Senfe, contain
all the Matters which come after a Declara^
tioHy as well on the Plaintiffs Part, as on the
Defendant's, until an IJfue is joined between
them.
A Plea pleaded to the Aftion is either ge-
nerai ovjpecial.
A general Plea is a concife and diredt Anfwer
of the Defendant to the Plaintiffs Declaration,
framed and contrived of old in fuch Words as
werei proper to deny the whole Part of the
Declaration : As if the Defendant was charged
with a Trefpa/s, the general Plea was, that he
was Not guilty thereof, which is now commonly
called the general Iffue. Such is the Plea of Nil
debet y or He owes nothing, to an Aftion of Debt
on a Contradt ; Non eft FaSlim, or // is not bis
Deed, to an Aftion of Debt on a Bond *, or,
Solvit ad Diem, or He paid it at the Day, to a
Bond. Such is Non ajfumpfit, or He did not
ajfume upon himjelf, and promife, 6ff . to aa
Aftion on the Cafe upon a Promife, fsf c.
A Jpecial Plea is a Plea drawn up in Form,
fetting forth the Matter pleaded at large, with
an apt Conclufion to the Declaration or A£i;ion.
There are likewife other Pleas framed of
old by the Courts, to anfwer the Occafion of
themi and though thev do not come under
the
\An Hijiorical ^itreatife of a Suit at Lata. 99
the Denomination of iffuable Pleas, yet they -
are nnoft commonly ranked with them as fuch,
though they are rather a Confeffion of the
Truth of the Plaintiff's Declaration ; as Non
Jum informatusy or, / am not informed to Jay any
thing in Bar^ Sc. Nil dicity or, He fays no-
thing in Bar, (^c. Cognovit AStionem^ or, He
confejfes the jiSlion^ ^c. Thefe were framed
by the Court, to be ufed when the Defendant
neglefted to plead in Time, and by his Silence
implied a Confeffion of the Aftion ; for with-
out fuch Means the Plaintiff could obtain no
Satisfaction by his Suit : Or elfe they were
really pleaded by the Defendant himfelf, in
order to give the Plaintiff Judgment for his
Demand, without the Expence of going to a
Trial.
With refpeft to Pleading in general, it may
be neceffary to underfland that the Tenor of
the Writ is to compel the Defendant to appear
in Court at the Return thereof, and defend the
PlaintifTs Charge againlt hinij at which Time,
anciently, every Defendant, either in Perfon
or by his Attorney, did a6tually appear, and
plead what they had to fay in their Defence,
Ore tenus at the Bar. If it was any fpecial
Matter, the Counfel fpoke fuch Matter at the
Bar, and the Plaintiffs Counfel did likewife
Ore tenus reply thereto. And the Prothono-
taries, and their Entering Clerks, (whofe Bu-
fincfs it was) did enter fuch Pleadings in Books
and upon Rolls, from which they tranfcribed
the Iffue Roll. But if it appeared to the Court,
upon opening the Matter, that the Plaintiff
had no Right to maintain his Aftion, the Judges
ex Officio abated the Writ, or otherwife gave a
H 2 further
100 An Hijtorical Treatife tf a Suit at Law.
• further Day to the Parties to reply, rejoin,
But as the Bufinefs increafed, and flowed
in from the Hundred and County Courts y this
Method became burthenfome both to the Clerks
and the Courts; and therefore, as obferved be-
fore, Attornies received the Care of carrying
on the Pleadings till an J^^ was joined : but
on bringing in the IJfue Roll, they paid for the
Entriesy as if entered by the Prothonotaries
themfelves.
Thefe Pleadings, Cuftom and Ufe had brought
to a general Form in general Cafes ; and what in
fuch Cafes ufed to be fpoken of courfe at the
Bar, came at length to be given of courfe in
Writing by the Defendant's Attorney, and are
called general Pleas y or general IJfues 5 and are
.^s follow :
5I3ott eff jTaaum td a TtSonti in tfie
And the /aid C. D. iy R. B. his Attorney^ ernes
and defends the Force and Injury^ ^ben^ iSs.
and fays that be ought not to be charged liith
the faid Debt by Means of the faid IVritin^
Obligatoryy becaufe he fays that the faid
Writing Obligatory is not bis Deed. And of
this he puts himfelf upon the Country.
II3on elf jTaaftim to a TBonti (n tDe
Comnton Peaisf.
And the faid C. D. by R. B. his Attcrneyj c^mes
and defends the Force and Injury^ wben^ i^c,
4 and
An Hiftorical Treatlfe of a Suit at Law* loi
and fays that be ought not to be charged with
the faid Debt by virtue of the faid iVriting^
becaufe be fays that the faid tf^riting is not
bis Deed. And of this be puts bimftlf upon
the Country.
l3on rff jFaafum, bp on cmttto? o^ an*
minfllcacor, fo; eft&ec Court.
And fays that he ought not to be charged
with the faid Debt^ by virtue of the faid IVrit-
tingy becaufe he fays that the faid fVriting
is not the Deed of the faid J. S. (the Teftator)
and of this be puts himfelf upon the Country.
mil oe&et in tfie Mm"^ OBenclF.
And the faid C. D. by R. B. his Attorney comes
and defends the Force and Injury^ when, fcfr.
and fays that he does not owe to the faid A.
B. the aforefaid 30 1, nor any Part thereof
in Manner and Form as the faid A. B. above
complains againft him. And of this he puts
bimfelf upon the Country.
M\ Qebet fn tbe Common pieaief.
And fays that be does not owe to the faid
A. B. the faid 30 1. or any Part thereof^ in
Manner and Fornp as the faid A. has above
declared againft him. And of this he puts
bimfelf upon the Country.
H3 ma
loz jin Uijlorical Tfreatije of a Suit at Law.
51211 tieliet fn Debt qiif tarn, &c. i\\ tlje
!^fns'!3 03enclj.
jind the faid C. T>. hy R. B.. his Attorney comet
and defends the Force and Injury^ when^ fcff.
and fays that be does not owe to our faid Lord
the King and the Jaid A. who as we 11^ i^c,
the faid 40 1. nor any Part thereof^ in Man*
rer and Form as the faid A. who as well^ &c.
above complains againjl him. And- of this be
puts himfelf upon the Country.
Bi\ tiefiet fn Debt, quf tarn, &c. fn tlie
Common pieajS.
— ' And fays that be does not ewe to our faid Lcrd
the King J and to the faid A. who as well 6fr.
tbe faid 40 1. or any Part thereof in Manner
and Form as the faid A. who as wellj 6fr.
has above declared againft him. And of this
be puts himfelf upon the Country^
l3on Hetinet fn Debt fn t^t Mn^'fi
T5enc&*
And the faid C. D. by R. B. bis Attorney^ comes
and defends the Force and Injury^ when^ fefr.
and fays that he does not detain from the
faid A. C. the faid 30 1. nr any Part thereof^
in Manner and Form as the faid A. B. abtve
complains againft him. And of this be puts
himfelf upon the Country^
An Wftorical ^reati/e of a Suit at Law. 103
Bon tietfnet fn Debt fn t&e Common
Is Word for Word the fame as in the Kiri^s
Bench.
Bon Hetfnet fn Cnfe fn botb Courts.
And fays that be does not detain from the
faid A. B. the faid Goods and Chattels^ in the
faid Declaration fpecified^ or any Part of tbem^
in Manner and Form as the faid A. above
complains againjl bim. And of tbiSj iSc.
M\ Hebet nee Hetfnet fn botlj Courtjef*
And faith that he doth not owe to the faid
A. B. the aforefaid 30 1. nor any Part thereof
in Manner and Form as the faid A. batb above
declared againjl bim ; nor doth he detain from
the aforefaid A . the Horfe aforefaid^ in Man-
ner and Form as the faid A. hath above de-
clared againjl bim. And of tbis^ (jfc.
Mon f nfcegft Contientfonem foe eftDec
Court.
Jnd the faid C D. by R. B. 6?r. and fays that
be did not break the faid Covenant (or Cove-
nants, or any one of them) in the faid De-
claration above fpecijied^ in Manner and Form
as the faid A. above thereof complains againjl
H 4 htm.
lo4 ^ Hi/lorical Treati/e of a Suit at La^,
him. And of this he puis bitnfelf upon the
Country.
l!3on aflUmpOt m tlje Mtff'0 15t\\t%
And the /aid C. D. by R. B^ his Attorney^ conies
and defends the Force and Injury^ when^ &€,
and fays that be did not undertake in Manner
and Form as the faid A. B. above complains
againft him. And of this he puts himfelf up^
on the Country^
Bon affimipCt fn tfje Common picasf-
Is the fame as in the King^s Bench.
l3ott affumpot ijp Cjcecutoris or aumfn^
ftratojjs foe eftftec Court*
And the faid C. D. and E. F. by^ &c. and fay that
the faid E. F. (the Teftator) in bis Life-time^
did not undertake, in Manner and Form as the
faid A. B. above complains againft them. And
of this they put tbemfehes upon the Country.
I30t ffufltp in Caft fit m mf«B'0
015enclj4
And the faid C. D. by R. B. his Attorney^ comes,
and defends the Force and Injury, when, i^c.
and fays that he is not guilty of the Premi/Jes
above laid to his Charge^ as the faid A.
above
An Hiftorical Treatife of a Suit at Law. X05
above complains againft him. And of this be
puts himjelf upon the Country,
B(A sutit? fit Cafe in tge Common
Is the fame as in the King's Bench.
jB!ot gufltp fn Ccerpaffai in tlie l^ns'is
'BencD.
— ^ And fays that be is not guilty thereof. And
of this h€ puis bimfelf upon the Country.
j^ot 0ufltp ftt Crefparis fn tlie Common
peais.
— And fays that be is noi guilty of the faid
Trefpafs^ as the faid A. above complains
againjt bim. And of this^ ^c.
jI2ot ffufltp fn CcEfparg ann aiTauIt fn
eftljec Cottct.
— And fays that be is not guilty of the faid
^refpafs and Affault^ i^c.
The common Replication to each of thefc
;eneral Iffues is this, And tbe Jaid A. doth tbe
ike J that is, doth likewife put bimfelf upon tbe
"Country. Whereupon the Iflue is joined be-
wecn the Parties.
Thcfe
io6 -<^» Hijiorical Treati/e of a Suit at Law*
Thefe general Pleas are tranfcribed from the
common Books of Praftice, only to fhew that
there is no material Difference between the
Forms of them, but that they may be ufed in-
diSerently for one Court as the other.
Special Pleadings were formerly divided into
two Kinds only, viz. Pleas in Abatement^ and
Pleas in Bar. The Order of Pleading was,
Jirjiy to the Jurifdiftion of the Court ; fecondly^
to the Perfon of the Plaintiff; thirdly^ to the
Count ; fourthly y to the Writ ; fifthly ^ to the
Aftion of the Writ i 3,nd Jixthlyy in Bar of the
Aftion itfelf.
A Plea in Abatement was temporary, and
too often dilatory ; for it was not to deftroy
the Plaintiff's A6kion, but only to ftop the
Caufe for a while, until fome Defeft was r6-
moved : As a Mijnomer of the Defendant, to
cure which the Plaintiff entered up a Difcon-
tinuance by Nil Capiat per Breve on the Roll,
and then brought a new Aftion in the De-
fendant's right Name ; which ftiews this Plea
was generally made ufe of to gain Time. ,
The Plea in Bar was an Objection to the
Plaintiff's A6bion, and went to the Right in
Demand, fhewing Caufe why the Plaintiff
ought not to have the fariie; and it was either
peremptory and perpetual, as when the De-
fendant pleaded . a general Releafe^ which dc-
ftroyed the Plaintiffs Adtion for ever. Or it
was temporary, and barred only for a Time >
as the F\t2i Plene adminifiravity which is a good
Plea in Bar, until more Goods come to the
Executor's Hands.
Pleas in Bar^ in many Cafes, were reduced
to a general and concife Form, as was the
general
An Uiftorical ^reatife of a Suit at Law. 107
general Iflue; and they were called general
Bars^ as, Infra J£tatem^ Solvit ad Diem^ Son
jljfaultj Plene adminijiravit^ Riens per Befcent^
hlul tiel Record^ per Minas^ £omperuit ad Diem ;
Non ^ffumfjit infra fex Annos^ St. 21 Jac. i.
Non Oil. infra fex jinnosy ASio non Accrevit
infra fex Annos^ bfc.
All thefe Pleas had a formal Beginning and
"Ending; for Ufe and Praftice naturally intro-
duce Fornn and ^Method, from which all our
Pleadings had their Rife. The apt and pro-
per Beginning of a Plea in Abatement was,
and is, That the Defendant ought not to an/wer
the Billy or Declaration, 6?r. And it concluded
thereto, thus, fFhereupon be prays Judgment of
the Bill {or Declaration) aforefaid, and that the .
Jaid Bill be * quafhed.
The apt and proper Beginning of a Tlea in
Bar was, and is, That the Plaintiff ought not to
have or maintain his AStion aforejaid againfi
him, becauje he Jaith that, &c. And it con-
cluded to the Aftion thus, fVherefore he prays
Judgment if the Plaintiff ought to have or maintain
bis ASion aforefaid againfi him, &c.
All Affirmative Pleas were concluded, And
this be is ready to verify. But Negative Pleas
were to be averred, becaufc it was a Maxim,
That Negatives cannot be proved.
* To quajh, from the old French, gaffer, is to
overthrow or annul any Thing. So when an Indift-
ment. Order of Seffions, Prefentments, ^r, are fet
afide by the Court for Infufficiency^ they are faid to
be quafhed.
Alio
io8 An Uijiorical Treatife of a Suit at Law.
Alfo when the Defendant pleaded to Ifluc,
he concluded, * And of this he puts himfelf upon
the Country ; and when the Plaintiff did, he
faid, And this he frays may be inquired of by
the Country ; and the other Party joined Iffue
by faying, And thejaid doth Jo like-
wife. For tho' the Iflue may confift of feveral
diftin6t Pleadings, yet this at laft muft be the
Conclufion of every Iffue to be tried by a
Jury. And indeed it often did, and does now
more frequently happen, that when the Plea
was fpecialj and to which the Plaintiff could
not take Iffue, he was under a Neceffity of
replying fpecially, and many other Pleadings
went to the making up the Iffue ; as a f RC"
joinder to the Replication j a Surrejoinder to that ;
a Rebutter to the Surrejoinder^' and a Surrebut-
ter to the Rebut tery (sc. fo that an Iffue in
fa6t was joined fooner or later, as the Matter
* Every Defendant is under a Neceffity of defending
himfcif, and confequently will put himfelf upon the
faireft Means, of having Juilice done him, which the Law
gives him ; and that is, to put bimjelf upon his Country
for their Judgment 2nd Opinion of the Matter, which
the Court muji grant him : - but a PlaintiiF, who is as a P^
titioner to the Court wherein he fues, prays it may h$ inguif"
ed of by the Country^
f Pleadings are divided into Barsy Replications ^ Re^
joinders, Stirrejoitiders, Rebutters, Surrebutters, t^c. Thcfc
are Words of Art, and are called Bars, Barra, becaufc
it bars the Plaintiff of his Adion ; Replicatio, a Re-
plicando\ RejunSiiones, a Rejungendo', Rebutter, from the
French Word Rebouter, a Repellandoi and lb of Surri"
butter, ^. In ancient times, fays my Lord Coie, a
Bar was called, Exceptio peremptoria ; a Replication, Re-
plicatio ; a Rejoinder, Triplication a Surrejoinder, ^a-.
druplicatio, ^c,
gave
An Hifiorical ^reati/e vf a Suit at Law. 109
gave Room for it. And it might happen that
lometimes the Plaintiff, and fometimes the
Defendant, firft cpncluded to the Country ; and
all fuch fpecial Pleadings were concluded agree-
ably to the Nature an^^ Effeft of thenn, viz.
Wherewpon the /aid as before^ frays
judgment whither^ tSc, for, as obferved. Me-
thod and Form being introduced hy Praftice,
begun and ended all our Pleadings.
The Rules for Pleading were, that all Pleas
Were to be fuccinft, without unneccffary Re-
petitions, and diredl and pertinent to the Cafe,
and not by Way of Argument or P*.ehearfal,
but direftly an Anfwer to the Charge in the
Declaration ; that every Plea was to be ftngUy
and certain, and not to contain a Variety of
Matter to one and the fame Thing. A double
Plea was »ot allowed to be good, becaufe
where there was a double Matter, no certain
Iflue could be taken: As for Inftance, If an
Infant fealed an Obligation by Durefs^ he could
not by his Plea take Advantage both of In--
fancy and Durefsy by reafon or Duplicity, left
th^ Jury fliould be too much incumbered.
This was deemed a great Reproach, and as
fuch was call on the Courts at Wefiminjler by
the Civilians^ who faid, 'Twas forcing a Man
to fight with one Hand tied behind him : The
Civilians had certainly the Reafon on their Side,
for why ftiould a Man be debarred from ufing
every Plea he can in his own Behalf? But
fee 4 tsf 5 Ann. r. 16. whereby Leave is now
given to plead as many feveral Matters as are
thought to be neceflary. However, this muft
be
no An Wftorical freati/e of a Suit at Law.
be by Leave of the Courts, as fome double
Pleas may be contradiftory in themfelves, fcfr.
It was a Rule that every Defendant's Plea
Ihould be taken moft ftrongly againft himfelf ;
for it was reafonable to fuppofe, that every
Defendant would at firft fet up the beft De-
fence he could* But a Defendant, who was
not obliged to plead a fpecial Plea, might plead
the general Iffue proper to the Aftion, and
give the fpecial Matter in Evidence ; and in
many Cafes the general IfTue was allowed, to
avoid Tedioufnefs and Multiplicity : And fuch
Pleadings were reduced to a very concife Form,
and more confonant to the general Rules of
Pleadings, than what they are at this Time.
That our Pleadings were not only greatly
lengthened, but as greatly multiplied before
* the A6t of 4 fcf 5 Ann. to what they were in
ancient Times, is very evident from the Plead-
ings themfelves ; and the Length of Records
now is not only a great Expence and Burthen
to the Parties, but is a Reproach to the Law
itfelf.
Sir Matthew Hale^ fpeakmg of the Length
of the Proceedings in his Time, in Comparifon
to what they had been, fays, " The Reafons
^^ whereof feem to be thefe, Jirjiy becaufe in
*^ ancient Times the Pleadings were drawn at
the Bar, and the Exceptions alfo taken at
the Bar, which were rarely taken for the
*' Pleafure or Curiofity of the Pleader, but
*^ when it was apparent the Omiflion or Mat-
•* ter excepted to was the very Merit and
*^ Life of the Caufe, and purpofely omitted
or mifpleaded, becaufe the Matter would
bear no better; but nowy the Pleadings
being
CC
An Wftorkal l^reati/e of a Suit at Law. HI
^^ being jirft drawn in Writings are drawn to
** an exceffive Length j and with very much
** Labourioufnefe and Care enlarged, left it
^^ might afford an Exception not intended by
** the Pleader, and which could be eafily fup-
** plied from the Truth'of the Cafe, left the
** other Party fhould catch the Advantage,
*' which commonly the adverfe Party ftudies,
** not in Contemplation of the Merits or Juf-
** ticc of the Caufe, but to find a Slip to
*^ fatten upon ; though, in Truth, either not
^^ material to the Merits of the Plea, or at
" Icaft not to the Merits of the Caufe." Hiji.
of the C.L. It may be added, that of lati
it hath been attempted to catch and in tangle
an Adverfary by Length and Intricacy of Plead-
ing; but the learned Artift was properly
caught in his own Net,
My Lor4 Coke obferves, and it is worthy
Obfervation, " That in the Reigns of Ed. 2.
Ed. I. and upwards^ the Pleadings w^erc
plain and fimple, but nothing curious, ever-
** more having chief Refpeft to Matter, and
*' not to Forms of Words, 6?^." In the Reign
of Ed. 3. he fays, " Pleadings grew to Pcr-
** fedion, both without Lamencfs and Curio-
** fity ; for then the Judges and Profejfors of
^* the Law were excellently learned Men, and
*^ the Knowledge of the Law flouriftied j the
Serjeants of the Law drew their own Plead-
ings, £s?^." So likewife fays Sir Matthew
Haley and further, that " Though Pleadings
in the Times of thofe Kings (meaning H. 4,
5, £ff 6. Ed. 4. Of 5. and H. 7.) were far
*^ ihorter than afterwards, efpecially after H.
•' 8. ytt they were much longer than in the
" Time
ic
X€
€C
€€
€€
€€
it
I T 2 yfn Hiftorical Treati/e of a Suit at Law.
'^ Time oi Ed. 3. and the Pleaders, yea and
*'* the Judges too, became fomewhat too cu-
" rious therein ; fo that, that Art and Dexte-
rity of Pleading, which in it's UXe, Nature,
and Defign, was gnly to render the Faft
plain and intelligible, and to bring the Mat-
ter to Judgment with a convenient Cer-
tainty, began to degenerate from it's pri-
mitive Simplicity, and the true Ufe and
*' End thereof, and to become a Piece of Nice-
ty and Curiofity; which how thefe latter
Times have improved, the very Length of
** the Pleadings, the many and unneceflary
*' Repetitions and Mi/carriages of Caufes, upon
'* fmall and trivial Niceties in Pleading, have
^* too much witnefled."
What thefe great Men have faid may be
confidered as a Reproach to the Pleaders, who,
through Ignorance of the real Points on which
the Merits of the Caufe might depend, chofc
to fill their Pleadings with a Multitude of nice
and curious Matters, rather than omit any
Thing which the adverfe Party might take an
Advantage of ^ or perhaps with a View that
the Pleadings, by Length and Intricacy, might
piizzle and perplex one another. Be it as it
will, it muft be allowed that the Merit would
be infinitely great in him, who fhould find
Means to reduce the Pleadings to a marc con-
cife and fimple Form, or chalk out fome
Method intirely to fupply the Ufe of Ipecial
Pleadings. How many Inftances may be giv-
en, where, by pleading generally, a Caufe
'might have been tried upon an Iflue of no
mpre than 10, or 12, or 14 Sheets, which by
fpecial Pleadings has be^n fpun out to 100,
150
Ah tJiftorical Treat fje of a Suit at Lavt^. 1 13
150, oi" 206 Sheets, and which, where the
Matter in Difpute has not beeti above 5 s. Va-
lue, has c©ft the Party aoo /. ? Is this an
Honour to the Law ? Is it not enough to de-
ter any Man from taking a Remedy to proteft
his Right and Property ? If what tnefe learned
Judges have faid was before the Aft for plead-
ing fcvcral Matters, what fhall one fay now,
when (pecial pleadings are fo greatly increafed,
and are drawn witn fo much Labour and
Nicety, and fo vaftly fpun out, as to render an
Iflue of fuch prodigious Length ? Special
Pleadings may be now faid to be a particular
Branch of the Law j anfi yet how tew know
it's Form ahd Niceties ? . Attornies know but
little of the Matter ; in fhort, they don't pre-
tend to it, for as fpecial Pleadings muft be
figned by Counfel, they fir ft get them drawn
by fome Gentleman, who by his Pradtice has
gained Skill and Experience therein, and . then
get the Draught fettled and figned by fome
eminent Counfellor, who ftuffs it with all the
Curious and nice Matters it may feem to want.
It is fufficient for an Attorney (I was going to
fay) to underftand the Terms of Art ufed
therein, and what they import ; as Averments ^
IProteftandoeSy Bars^'TraverJesy Juftificationsy Pleas
puh darreign Continuances ^ Affirmatives, Nega-
xiveSi Repugnants, &?r.
However well defigned the Stat, of 4 &? 5
Ann^ was, yet 'tis a ^are if qver any Aft,
that was made for the Amendment of the Law,
tended fo much to increafe the Expence of a
Suit as that does; fo that People have much
more Reafon to exclaim atid cry out againft it
than ever they had. This*is-a Branch of^thq
I Law
1 14 Jin Hijioricai ^reatije of a Suit at La^^
Law fo luxuriant in its Nature, and fpreads fo
wantonly and vicioufly, as to want much prun-
ing J and it may be truly faid, through this
only, that a Client often breaks his Teeth by
endeavouring to come at the Kernel j or, in other
Words, that the Remedy is worfe than the Difr
eafe.
To give one Example only of the evil Ef-
fefts 01 fpecial Pleadings out of the great Num-
ber of Aftions for Trefpajesj and ufJon the
Cafe, which are brought upon much lefs Oc-
cafions. Pleafe to obferve the Iffue placed at
the End of this Treatife, wherein the Plead-
ings were grounded upon the following Cir-
cumftances : The Inhabitants offT, in Oxford^
/hire had enjoyed a lR.ight of Angling in the
River Thames, without any Interruption, Time
immemorial, until it happened that the Defend-
ant F. G'. caught a fmall Salmon, (a Thing
never known there before, it being fo far up
the River.) This was too alarming to the
Plaintiff who rented the Fifhery, and thereup-^
on he went and demanded the Fijh, which the
Defendant refufed to give upj and to make
fure Work of it, fold it to a neighbouring
Gentleman for 2 s. The Plaintiff upon this
complained to his Landlord^ who was wife
enough to forbid the Peoples angling, and or-
dered ap A<9tion to be brought againft the De-
fendant F. G. and others, who were in Com-
pany with him. The Right <o{ 2i free Fifhery,
which the Plaintiff now claimed, coming ih
Queftion, in order to try it* (^s it tended to
take away and deftroy the innocent Amufe*
m^nt of the Inhabitants, which they had io
Jong enjoyed) fome Freeholders anc^ Copyholders
of
I
Jh Hiflmcal Treaiife of a Suit at Law. n^
t>f the Parifli gave the Defendants Liberty to
jujiify under themT as having a Right of fifhing
in half the Stream next to their Lands \ a Thing
that was advifed, as abfolutely neceflary, for
the Defendants to avail themfelves by. ' And
the Caufe was tried upon this Iffue, folio near
1 60, which coft the Parties above 200 /. The
Plaintiff fiicceedcd under an old Grant of the
Fifliery. ^are, what did he gain by it ? And
quate, if no Method can be found out for try-
ing fuch a Caufe upon the general IJfue with
^qual Advantage to the Defendant ?
£Df an 3firae in if aft, o? faa.
■
An IJfue^ arifing from the Pleadings, is the
next Thing to be fpoken of. An I£ue is faid
to be joined, ,when there is a certain Point or
Matter iffuing out of the Allegations of the
PlaihtifF and the Defendant, which confifts of
an Affirmative on one Side, and a Negative on
the other; and therefore it is called an i]^^
from the French Word IJfuery to flow from.
An Iffue is of two Kinds, viz. an Ifflve in
Law; and an Iffue in Fait, or Faff. An Iffue
in Law is joined upon a Demurrer^ and the
Matter of Law is to be determined by the
Court. An Iffue in Fait, or FaSl, is joined,
when, as is before obferved, there is zn Affirm--
ation of a Thing on one Side, and a Negatidn
on the other, which fix a certain precife Point
to be tried by a Jury ; as when the Plaintiff
declares that the Defendant owes him-cio/.
and the Defendant pleads Nil debet, or that he
owes the Plaintiff nothing. Now whether he
I 2 owes
V ,
^l8 4^ Hifiorical ^teafife of a Suit a$ Law.
brings into the Court of our Jaid Lord the Kingy
before the King himfelf noix) herey his. Bill
againft CD. being in the Cuftody of the Mar^
pal of the Marfhalfea of our faid Lord the
Kingy before the King himfelf of a Plea of
^reffafs on the Cafe^ (as 'tis) and there are
Pledges for the Frofecution thereof to wity
John Doe and Richard Ro^, which faid Bill
follows in thefe Words y to wity Berkfliire, to
wity Ai B. complains of C D. being in the
Cuftody of the Marjbal of the MarfliaHea of
our Lord the Kingy before the King himfelf
for thisy to wity that whereas y fo on to the
End of the Declaration, omitting Pledges,
iSc* and then the Plea in a new Line, with the
Replication and Award of the VenirCy viz,
And the faid C. D. by O. P. his Attorney ^ ^pme^
and defends the Force and Injury y when, iSc,
and faith that (the Plea> f^erbatim) and
thereupon he puts himfelf upon the Country i
and the faid A. B. doth the like-, * Tfferefore
MM
fet forth, (which is not meilHoned in the Ple^dingSj^ bi^t
only in this Memorandum) it is moft reafonable to ii^ppofe
that, originally y the Memorandum was infcrtfcd before tjp
Bill filed, and likewife before the Declarafion, which w^.
delivered as a Copy of it : And if it muft be ftill ufed, it
is moil proper to be ufed before the Declaration^^ notwith-
flanding no Bill is filed;, as it ^Hedges.
♦ The Award of th6. r<p»/W, when the Parties ff*
eome to IJfue^ is foppbfed to be the Aft of the CpuxCj.
and was then immediately entered on the Ifiibe R,Jt
\>^ the entering Clerics j and is now awarded, of couH^
An Hlfiortcal Treatife &/ a Suit at Law. 1 1 j
let a Jury come thereupon before our Lord the
King /I/ Wcftminttcr, on*
next after and who neither^ f ^c.Jo
mm
on the Paper Copy of the Jffue by the Attorney, and
ought to be made returnable therein of the fame
Term.
• The Venire was originally the only Procefs that
i^ued for bringing a Jury to try the Caufe. But
after the Difiringas was introduced for that Purpofe,
the Venire was, and is now made returnable fomo
pay before the Trial : As if the Caufe is to be tried
in To-ivn, then the Venire is made returnable the firf^
Return, or fome other Return, before the Sittings \
fo that the Diftringas may bear Tejie on that Return
Pay, and be returnable fome Return Day after the
Sittings the Caufe is intended to be tried at» Or if
the Caufe 'is to be tried in the Country, then the Ve^
wire is made to bear Tejle the Jirft, or fome other Day
in the Tern^ preceding the Alfizes, and is made re-
turnable the laj^ of that Term, in order that the P/A
frmgas may bear Tejfe on tbia I^etum Day, and b»
made returvahle the Jirjl Return of the fubfequent Term»
after the Aflizes} This is fuppofiug the Xffnc was
made up of that preceding Term ; if not, fee /^.
Some Attornies leave a Blank for the Retiirn of the
Venire in the Cofy of. the IJ/iie, and fome moke k re^
turnable fome Day ii> the Term the |iFi\e is j<«ncd!, as>
}t ought to be,
•
f Thefo Contraftions being explained by the Words
at Length, need here no further Enclairciflement,
other than facere recognitionem being rendered to recog-
pize, it may be obferved, that as Cognition is Know-
ledge, Acknowledgment, or Opinion ; fo ta fecognize
Is to take Knowledge pf,.. by a well^weighmg, or
icnou& Acknowiedgo^ci^t of the Trutl\ of the Mat*
-4-4 : recogmzu
120 An Hifiorical ^reatife of a Suit at Lata.
recognize, 6?^. * hecauje as welly ^c. f the
fame Day is given to the /aid Parties there.
Thefe tf^.V are Contraftions of the general
Words in the Writ of Venire, whiclf is here
awarded, and the Words may as well be put
at Length, viz. And who are in no wife of Kin
either to thefaid A. B. or to the aforefaid C. D.
t$ recognize upon their Oath the whole Truth of
the Premiffes, becaufe as well the f aid A. as the
faidC. have put themf elves upon that Jury, the
fame Day is given to thefaid Parties there.
This Memorandum^ I prefume, was originally
inferted before the. Bill filed, not only becaufe
it is faid that the Afts of the Court were en-
tered by way of Memorandums, but the Thing
itfelf feems to declare it; confequently it then
related to the firft Day of the Term, or the
very Day of filing the Bill : but when they
came to make up the Iflue, perhaps two or
three Terms , afterwards, they varied the Me*
morandum accordingly, and fawd,
Berks, ff. Be it rememhend, that in Hilary
Term laft paft, before our Lord the King at
Wcftminfter, came A. B. iy R. B. bis At-
iomey and brought into the Court of our fgii
• For their juft and impartial Opinion of the Matter
which they come to recognize,
+ The Dies daius is the Order of the Covrt to the
Parties, to come at the Return of the Venire^ before the
Court and Jurors to receive their Opinion of the Matter
io be tried, which by the liTue they had put themfelvei
ppon,
L$ri
An ITtftorical ^reatije of: a ^uit at Law. ^ ^ ^
Lord the King then there his certain Bill
againji CD. being in the Cujlody of the Mar^
Jhaly £5?^.~The Reft as in tjie former one.
But as the filing the Bill came to be left off,
the Memorandum was only ufed before, the
[flue, as at prefent ; but ftilj it refers to a Bill
fuppofed to be filed, and therefore now varies
in four Cafes, viz. firjiy when the Declaration
^or Bill) is of the fame Term with the Iffue,
fts in the fiHl Precedent j fecondly^ where it is
neceflary tQ make it of a particular Day in the
fame Term, with the Iffue, as where the Caufe
of Aftion arofe after the firft Day of the Term,
va which Cafe they only mention the certain
Day of filing it, thus ;
Berks, ff. Be it remembered^ that on Saturday
next after eight Days of St. Hilary, in this
fame Term^ Qc. as in the firft Precedent.
Thirdly J Where the Declaration is of a pre-
cedent Term, as we have feen by the fecorid
Precedent before j and fourthly y where the De-*
claration is above four Terms before the Iffue
is made up, in which Cafe they can't fay
0f Hilary Term laftpaft^ but
Berks, ff. Be it remembered that heretofore
that is to Jay y in the "Term of St. Hilary in
the Tear of the Reign of our Sove-
reign Lord Gtorgt the Third, now King of
Great Britain, (sfc. before our faid Lord tht
King at Weftminfter, came K.^. i^yR. B,
hi^ Attorney ^ iffc. ut fupra.
Afl4
7 . . . ,
122 An Hifiorical Treati/e of a Suit at Law.
And whenever the IJfue is made up of a
Term fubfecjuent to the Declaration, the Plea
is entered with an Imparlance before it, thus :
Berks, ff. Be it remembered ^ that in Hilary
*Term laji paji, be fere our Lord the King at
Weftminfter, came A. B. by R. B. bis at-
torney^ and brought into the Court of our faid
Lord the King then there his Bili againft C. D.
being in the Cuftody^ fcfr. The Reft as in the
former one, then the Plea with the Impar-
lance, And now at this Day, (that is to Jay)
next after (the firft
Return of that Term the Iffue is made up)
in this fame Termy to which Day the faid C.
had Leave to imparle to the Bill aforefaid,
' and then to tmfwer the fame before our Lord
th0 King at Weftminfter, came as well the
aforejaid A. by his Attorney aforejaid^ as
the faid C. ^ E. F. his Attorney ^ and the
faid C. defends the Force and Injury y when,
(^c. and faith that The Plea verbatim^
'^ith the Award of the Fenire as before.
This Imparlance was formerly ufed in all
Cafes, becaufe in all Cafes the Defendant was
intitled xo it ; and it was then ufual to enter
fijch Imparlance before the Plea upon the Plea
Roll, and which of courfe was of the very Term
the Plea came in; andibwhenthey cameto tran-
fcribe the Nifiprius Roll from the P/4* Esilly jiio
Imparlance of courfe appeared to beof theTcnn
the Plea came in,, and thereby difaQrVcrcd the
Term in which the Iffue was joined ; and as the
l^hintiff could nqt alter thcfe Entries, they were
frecj^uently
Ali Hijiimal TTre^H/e of a Suifat Law, -I^J
frequently obliged to make up the Nr/i prius
Roll from an old Iffue 5 in which Cafe theje
were claimed extra Fees by the Clerk of the
Dockets and Clerk of thc^Treafury,' for Poft;
T^erm and a Poft Roll, feV. , But
when thefc Entries on the Roll were laid afide^
and Attornies delivered their Pleadings in Pa-
per, then they delivered the Plea without any
Imparlance before it, on purpofe that the Plainer
tiff's Attorney might make the Entry of tho
Imparlance of the fame Term he made up the
Iffue, (though the Plea was two or three Terms
before then) and thereby preferve it from be*,
log an old Iffue, in order to avoid paying fuch
lExa€i:ions : -JK^r Inftance, the Declaration was
oi Eafier Termt* and the Plea of "Trinity \ the
j[ffuc was made up of Ktlary following, and thfc
Iipparlance to the fame Term \ but it is faid
this Praftice is not warranted by the Proceed-
ings. See more of Imparlances ante^ p.
The Memttrnfidum is to ihew when the 5i//
was filed, or fuppofed to be fo; and the Im-
parlance y wheii the Plea came in. But of what
necejfary Ufe is either ? The Court of Common
Pleas ufes neither one nor t'other, as we Ihall
fee ; and it is very evident by what was ob-^
jferved before, . that the Ufe of the Entry
of the Imparlance in this Court, only tends tq
preate an Expence in the Suit, not only in
lengthening tne Iffue, but in unneceffary Fees
to the Officers, and alfo by multiplying Conti-
nuances on the Judgment Roily which ought ta
be avoided, for the S^k^ of Plainnefs and Perw.
fficpity.
m
lif . An Hiftcrkal Treatife of a Suii at Law.
£Df making up m Wxz in tfie Common
The IJfue in ihe Common Pleas was ancicndy
tranfcribed from the fcveral Rolls made ufc of
in this Court; as the Appearance Roll, the
Imparlance Roll, the Plea Roll, 6f r . from which
they made up the IJfue Roll 5 from which Rolls
Copies were ufed to be taken for the Parties
out of the Protbonotaries Office. And though
the Proceedings are now carried on by tnc
Attomies by Paper Copies^ as in the King*s Bencb$
where they firft begun it, and introduced the
fame Pradtice in this Court 5 yet Upon paffiqg
the Record with the Prothonotary, or upoji
figning a Non proSy entering a Difcontinuaiicfi
i^c. the Prothonotary is ftill paid for the Eih
tries y as if entered on his Rolls by his Clerks j
and this, though no Roll be yet in the OflScc;
Therefore the Ijffiie is now made up by the
Attorney, by only copying over all the Plead*
ings in due Courfe and Order; as firfl:, the
Declarationy then the Pleay then the Replication^
i^c. and after all, the Award of the Venirti
This is joining the Ijffue in a very fimple and
plain Manner, without any unneceffary or in-
termediate Entry, which is prefumed to be no
Part of the Pleadings, as the Entry olf the
Memorandum before the Declaration, and the
Imparlance before the Plea in the King'^ Bencb^
thus:
Jones
Jin Hiftorical ^reatife of a $uit at Lav^;, Hj
Jones Hilary 7Vr»», in the
Tear fif the Reign #/ King George the Jecond.
Berldhire, to wit^ C. D. hte of W. in tbefaid
County^ Teoman^ was attached to an/wer *to
A. B, in a Plea of Tre/pqfs on the Cq/e^ i^c.
and whereupon the Jaid A. hy R. B. his
Attorney complains ^ that whereas the Jaid C-
iSc. fd on to the End of the DeclaratioHj
and then the Plea in a new Line, thus :
And the f aide by E. F. his Attorney y comes
and defends the Force and Injury j when, 6ff .
and faith that (the Plea Verbatim^ and then
in a new Line, each fubfequent Pleading, if
any) And of this he puts himfelf upon the'
Country^ and thefaid A. doth the like ; (then
follows the Award of the Venire) Therefore
the Sheriff is commanded y that he caufe to come
here, on the Morrow of the Purification of the
Blejfed Mary, twelve^ 6f c, by whom, &c. and
who neither y isfc. to recognize, dfc. becaufe as
welly fefr.
Or they award the Venire va Words at Length,
viz.
9
Therefore the ^Sheriff is commanded that he
taufe to come here, on the Morrow of the Pu^
rification of the Bleffed Mary, twelve free
and lawful Men of the Body of his County y
each of whom having lo 1. ^ Tear at the ieafl
in Landsy Tenementy or RentSy by whom the
Truth of *the Matter may be the better known y '
and who are in no wife of Kin either to the
Jaid
1 2$ An Hifiorical ^reattje of u Suit ai Law* -
/did A. or to the /aid C. to make a certaht
Jury of the Country b^etween the Parties afore-^
faidy of the Plea aforefaidy to recognize ufan-
their OatB the whole Truth of lh& Premtjes^
hecauje as well the f aid A. as the /aid B. be-
tween whom the "Difference is^ have put them-
Jel'Oes upon tha$ Jury.
The * Dies.datusy which is added in the
Kings Benchj is not ufed at all in the Common
Pleasy on the .Return of the Venir/, at this
Tinie ; nor do they give a Dies dolus ercn on
the Award of the Habeas Corporay which is^
eafily accounted for : And therefore why it is
not ufed on either in the Common Pliasy and in
the King's Bench on both, will be better confi-
dered in fpeaking of the Jury ProccflcSj where
the Reafon for this Omiffion in lAie: Comn^i
Pleas will appear.
Though the Form of the Writ of Venire it^
felf (except the Retufn) is the very famciil
both Courts, yet you fee the Award thereof*,
in the Common Pleas y is much more full than
the Award thereof in the King's Bench. Now
if we have Refpeft to the Court the Writ is
awarded by, and made returnable in, we m^y
eafily account from whencd this Difference
arofe t As for Inftance, in the King's Bench the
Writ is fuppofed to be awarded immediately
• A Dies da fuj 13 2f Day, or Time of Rc^Jite, given
by- the Court to the Parties, irom that Day to the Daj
ginjen for them to appear again, and is ufed upon fcfc-
ral Occafions ; and wherefoever fuch a Time of Refpite
is given, it feems proper for' a Dies datus to be entered*
I /• by
.(
' k- .
^ Hifiopcal ^reatife of a Suit at Laii)^ 147
by the King himfelf, who is fuppofed to ht
there in Courts therefore it is imperatively faid,
Let a Jury come thereupon before^ &r. now.
Let a Jury fupply thofe Contraftions of twelve^
iSc. and by whom^ fefr. But in the Common
Pleas, where the Writ is awarded by the
Court, by virtue of a Commiflion or dele-
gated Power, it is faid. Therefore the Sheriff i^
£ommandedy viz. hy virtue of that Power, that
he cauje to come, not by the Pojfe Comitatus to
force them, but by bonos Summonitoresy (good
Summoners) or caufe them to come herCy viz.
at fVeJiminJieri where the Court was fettled,
twelvCy ^c. See Venire,
Here we fee an Iffue joined in a very plaio
and fimple Form, clofed with an Award of ,k
fill! and inflruftive Precept to the Sheriff, to
fummon a Jury to come and try that Iffue at
TFeSiminflery where the Court was fettled; and
then, all Trials being at the Bar, there was no
other Record made up than the Iffue Roll it-
felfj which, being in Court, was the proper
Record, on the Back of which they entered
.up the Judgment. . And thus it continued
from the making of Magna Charta, as 'tis
prefumed, until the Statute of Nift prius, com-
monly called the Statute of IVefiminfler 2.
This Statute was made by Edward the fjrft,
1 i%2y who firft conftituted Writs of Niji priusy
in order that Matters of Law might be tried
in his own Courts at IVefiminfler y and Matters
a{ Fa£l in the Country y for which Purpofe the
Venire was made returnable fome Day in the
next Term, on which Return Day the Sheriff
was to return the Jury, Unlefs thejuflices itine^
rantes/;'//*j tali Die et Lcco venmnt^ '&?r. "A'na
thus
rtS An Hifiorical Treati/e of a Suit at LaiJO.
thus the Cleiufc of Nijt prius was firft introduced
in the Fenirey and continued to be fo from Ed^
ward the firft to the Time of Edward the third*
The Venire commanded them to come in-
to Court, fo that their Appearance before the
Juftices o{ Affile y or Niji prius\ was an Ex-'
cufe for their Non-appearance in Bank* And
though no Iffues were returned on the Venire
to make them appear at Niji friusy yet the
Difficulty was fo much the greater on them to
appear afterwards at JVeftminJiery which they
were obliged to do ; for if they appeared not
at Ktfi priusy nor at PVeJiminftery then iffued
the Habeas Corpora and Dijiringa}^ to bring
them in, with IJues returned. By this we fee
the Habeas Corpora and Dijiringas iffued thro'
Neceffity, on a real Default of the Jurors not
appearing on the Venire^ and not in that for-
mal Manner they do now.
King Henry the fecond, in the 23d Year of
his Reign, divided the Kingdom into fix Parts,
and to every Part he afligned three Juftices,
called by BraEton^ Itinerantesy and by Brittony
Juftices in Eyrey to diftinguifh them from the
others, who were called, Rejtdentesy SedenteSy
and afterwards Jufticiarii de BancOy which Tide
they now have. Thefe Juftices in Eyre had
their Circuits, not unlike our Aflizes, and fo
continued until the Reign of Edward the third,
about which Time their Authority began to
decline, by inftituting Juftices of Affize and
Wardens of the Peacey now called Juftices of
the Peace ; and in the next Reign {Richard the
the fecond) the Juftices of the Common Pleas
were authorized to take Affizes, &?r. So that
the Juftices appointed for taking the Affizes
were
jtH^tSfiotical ^ea}i/e of a Suit. at Luftv. • % 29
• were the Jufiices isineranty who were appointed
to go into every County for that Purpofe, by
a fpecial Commiflion, and not the Juftices of
the Common Pleas \ for thefe, as my Lord Coke
obferves, had no Power to take AiTizes in the
Country, until the 8 th of Richard the fecond,
f. 2. being about 150 Years after that Court
was fettled at ff^eftminfter.
Now in order to difcover how the Venire^
together with the Habeas Corpora and Diftrin-
gas, came to be made out of Courfe, as they
are now ; and the Claufe of iVj/f prius to be
taken out of the Venire^ and placed in the
Habeas Corpora and Diftringas ; it muft be con-
fidered that by the Statute of Marlebridge, (^2
H. 3. c. 11. 1267.) it was enafted, that after
a Man had put him/elf upon any Inqueft^ he Jhould
have but one * Effbin; but that Statute not
limiting the Time when the EJbin fliould be
taken, it ufcd moft frequently to be taken on
the Habeas Corpora and Diftringas i for this
Reafon, if the Jury did not appear at Niji prius
on the Venire, which often happened, and as
ho Ifibes were returned on the Venire, in cafe
they did not appear at Weftminfter on the Day
in Bank, which was too expenfive and trou-
blefomc for them to do, if they could avoid
it; therefore they flood out until a Habeas
Corpora (or Diftringas) iffucd ; and then, when
* It has been mentioned, that an EJoin was an Exeuie
for a Man's not appearing, and was allowed on diners Occa-
iionsy not only upon the Hetum of the Original, hot on
the Return of the Venire, l^c^ und were grounded on
divers Caufes, which were traver/able by the Plain-
tiiE. .
they
cc
€C
130 jh TBfiorical Trealifc of d Suit at Laiff.
they came to fave the Penalty on the Habeas
Corpora J (or Diftringas) one of the Parties ^
Joined himfelf ; and the Jury, after much Ex-
pence and Trouble, returned Re infeSa.
Now in order to remedy this, 'tis ordered by
the Statute of JVeftminfter 2. (13 -£. i. c. 27.
1285,) " That after any Man hath put himfelf
*^ on an Inqueft, an EJfoin fhall be allowed him
'^ at the next Day, pojiquam Aliquis pojueritje in
Inquijitiontm ad proximum Dienty alloquetur
ei Effoniunij fed ad alios Dies, (s?c. but all
the following Days, the taking the Inquefi
*^ ihall not be delayed by the Effoiriy whether
*^ he was effoined before or no ; neither fhall
'^ any Effoin be allowed after the Day given
^^ prece partium^ fffr." Now the Proximus
Diesy after Iffue joined, was the Return of the
Venire \ and therefore, in order to get rid of
the Defendant's Effoin at Nift priusy they made
the Venire returnable the * fame Term the Iffue
was joined; and by Confequence, when the
Defendant was to caft an Effoiny he had no
other Day to do it by the Words of the Sta*-
tute than on that Return Day; and by this
they got rid of all the Effoins on the Behalf of
the Defendant at Nift prius j for as the Venirt
was made returnable the fame Term the Iffut
was joined, it was made returnable in Court
without any Chuk o( Niji prius in it, in order,
as obfervcd, to get rid of the Defendant's EJbin
at the next Affizes. And hence it was, that
tlie Dies datus was omitted in the Common Pleas,
• This (hews that the Return of the Fenire awarded at
the Clofc of the liTue Ihould be of the fame Term.
Uk
An tJiJioricat ^reatije of a Suit at JLaix). t^^
ih the Award of the Venire^ (although it is ftill"
ofed in the * King*s Bench) becaufe the Party
being in Court the fame Term Iffue was joined,
continues in Court by his Attorney. By this
We may underftand> that if the Defendant ap-
peared on the Return of the Venire^ and did
caft an EJfoiny it was allowed ; and then he ,
coiild not be again effoined on the Return
of the Habeas Corpora at the Aflizes. But
as it anfwered no End for the Defendant to
efToin himfelf on the Return of the Venire when
the Jury did not appear^ confequently it dropt
of courfe; and fo having loft his Time to
effhin^ by not appearing on the Return of the
Venirey the Jury was of courfe relpited,
and a Habeas Corpora and Dijlringas awarded,
as appears by the Jurat, on the Record ; and
then by the Words of the StaClite the Inqueft
was to pafs, whether he was ejfoined before or
no. And the Reafon why no Dies datus is
* At this Time the King^t Bench had but little to do
in Ciofii A&ions, and -becaufe they had not Bufinefs to
fit the whole Term de Die in Diem, therefore they ad-
joamed from one Day to another, and they gave a Da)
to the Parties to be prefent, when they fat on the Ve-
nin ; but there was no Day given to the Parties on the
Diftringas, for the fame Reafon as in the Common Pleas,
vix* becaufe if the Defendant did not appear> the Inqueft
night pa/s by Default i but now, though that Court is
:onie into the fame Method of Practice with the Common
Pleas in reiped to the iffuing the Venire and Dijlringas^
ve not only fee a Dies datus on the Venire, but likc-
vifc on the Dijlringas \ but whether it be done with any
'ropriety or not, would be fome Satisfadtion to know.
K 2 given
I ja ^n ISfiarical Treatije of a Suil at Lam.
given on the Return of the Habeas Corpora to
the Parties, is, becaufe they were obliged to
appear, or the Inqueft Jhould pa/s by Btf fault.
We have obferved that the Venire originally
was the only Procefs that ilfued for bringing
in a Jury to try the Caufe ; and the Writ it-
fclf is a full and inflruiftive J?recept for that
Purpofe; and the Habeas Corpora and Dijirin-
gas never iflued but through Nece/fity, which
was not owing to any Defeft in the Writ it-
felf, but to the Defendant's being, effoinahle on
the Venire^ which was a great Hindrance to
Juftice ; for if the Defendant appeared and
ejfoined himfelf, the Jury returned. Re infeSa\
and if he did not appear, the Jury was obliged
to appear in Bank.
Another Mifchief, 'tis fald, attended this
Procefs, which was, that the Parties not feeing
the Pannel before-hand, could not be prepared
to make their Challenges
Thefe Mifchiefs migJit have been eafily re-
medied, by taking away the Defendant's Ef
Joins y and ordering 1 flues to be returned on the
Venire y and likewife by ordering the Sheriff to
make his Return with the Pannel fome certain
Days before the Affizes, and then the VeHke
might have continued the ortly Writ, fimflc
and plain in itfelf, for bringing on a Jury to
try the Caufe. But inftead of this, a ftrange
round-about Way Was taken, whereby the
Proceedings werfc mTikipIied, and the Record
lengthened, without any Manner of Reafon j
for with refpedl to the firfl: Mifchief, we have
feen what a Method in Praftice was had to take
away the Defendant's Efoin at the Aflizcs.
It was further endeavoured to be remedied by
laying
An Ujfiorual Treat i/e of a Suit at Law. x-^S
laying Cofts on the ^Defendant, where the
Plaintiff prevailed. 3ut with refpedt to the
Pannel, it had no Remedy until the 42 EJ. ^.
r. II. whereby it is enabled, ** That no Inqu^fi
** hut jiffizoj an4 Delivery of Gaols ^ Jhall be
*^ taken hy Writ of Nifi prius, before the Names
** of them J that /hall pafs on the Inquefty be re-
** turned into Court''. From this Time they
could no more place the Claufe of Nifi plus in
the Venire y as was dirofted fay the Statute of
Weftminfter 2. and therefore it was taken out
of the Venire^ and placed in the Habeas Cor-
pora an4 Difiringas. And from hence thefe
Writs began to be made out for Trial in the
fame formal Way as it is continued to this
Day. On the Venirt was returned die Jury^
and then the Habeas Corpora and Dijiringas
iffqed to bring them in. The Award of the
Habeas Corpora and Difiringas appears by the
Jurata in the Record^ but does not at all ap-
pear on the Ijfue Roll, which is the proper Re-
cord, the Reafon of which we Ihall fee by-
and-by.
The Statute of 42 Ed. 3. is faid to have had
many good Effefts: Firft^ the Parties knew
the Names of the Jury ; fecondly^ the Venire
being returned, the Defendant had no Effoin
on the Habeas Corpora and Dijiringas^ but was
obliged to appear, or elfe by Stat. IVefiminJier
0.. the Inqueji was taken by Default; thirdly ^
the Jury on Nifi prius were fined, if they did
not appear. But from hence the Proceedings
were multiplied by the common Dk of the
Habeas Corpora and Difiringas, and the Record
lengthenecl by the Jurata.
We might here take a View of the Nifi prius
Roll, or what we now call the Record for Trial j
K 3 but
134 -^^ Hiftorical Treati/e of a Suit at LaWn
but it may help to underftand it the better,
if we endeavour to explain the old Method of
Prat'tice a little further.
Before the Statute of Nifipriusy there, could
be no Occafion for a Niji prius Roll, or any
. other Record than the Iffu^ Rofl, on which
the Judgment after Trial was immediately
• entered up; but after the Statute of Nt/i
prius, the Clerks of the Treafury made up
a Roll frbm the Iffue Roll, which was cal-
led the NiJi prius Roll, as the other could
not be carried out of the Treafury, but was
to remain a Record of the Proceedings.
. ' Now when Iffue was joined, the Venire was
. thereby awarded to be returnable the laft Day of
. that Term, without 2infNiJi prius in it, (as ufed
to be ;) and from that Day the Habeas Corpora,
or Dijiringasy was tefled, with the NiJi prius
therein, and returnable on the Day in Bank,
or the firft Day of the Term after the Aflizcs,
But in cafe the Parties did not go to Trial at
- the next Aflizes after Ifluejoined, or in cafe
the Iffue was not joined of an iffuable Term,
then the Procefs of Venire was continued by
Vicecomes non mijit Breve, in this Manner, viz^
At which Day came the Jaid Parties, by their
• Attorneys af ore/aid, before his f aid Majejly^s Juf-
tices at Weftminfter, and the Sheriff of the faid
County hath not fent hack the Jaid Writ to him
. (IS afore/aid directed \ therefore the Sheriff, as
before, is commanded that he cauje to come, &fr.
and then there was a new Venire awarded on the
Iff'ue Roll. And thus the Venire was continued
. from 1'erm to ^erm, even to the Term wherein
the Habeas Corpora or Dijlringas was tefted,
But the Award of the Habeas Corpora or Dif
fringa^ was never entered on the Plea^ or Iffue
RoH|
An Hiftorical ^reatije of a Suit ai Law. 135
Roll, but only at the firft Day of the next Term
after the Affizes, when the Pofiea was returned,
in entering up the Judgment, they begun
with * Poftea Continuato inde ProceJfUy which
was a Recital of the Continuance warranted by
the Placita in the Nift prius Roll. And the
Reafon of this Praftice was this; if they had
entered the Award of the Habeas Corp or a y ^ or
Diftringasy on the Plea or IJUe Roll, and had
not gone to Trial, they muft from thence have
awarded an Altas and Pluries Habeas Corpora
or Diftringasy which would have feemed to
have obliged the Jury to come in Terms per-
haps not ijfuable\ but the other continued the
Ad of the Court as well ; for Poftea Continuato
inde ProceJJu fhews, on the Plea or JJfue Roll,
that the laft Award of the Venire was continued
to the Day in Bank by the Procefs. And as
it was neither expedient nor neceffary to enter
thefc Continuances of Vicecomes non mijity tfr.
on the Nifi prius Roll or Record, therefore a
general Entry was thought neceffary thereon.
And this was done by the Placita between the
Award of the^r^ Venire and the Jurata, which
ferved to fhew the Judge of Affile that it was
an Iffue continued to the laft Term, and is now
a Warrant to the Officer to continue the Venire
on the Iffue Roll until then ; for this Placita
ivas of the Term next preceding the Affizcs,
• Though this Entry is yet ufod in the JCing's Benefit and
that whether the Iffue is tric4 the ikmc Term or not, it
has been long difcontinued in {Jie Common Pleas^ there be-
ing properly ho Continuaace nccellkry, but by t^it^ Jtm
mtjity ^f.
K 4 and
Ijjfi Jn lUfiorical fuati/e of a Suit at U^.
and by Confequcnce was to the iffuing the Ha-
beas Corf or a i or Dijlringas. Hence it is that
the Common Pleas ufe no Phcita after the Award
of the firfi Venire^ when they go to Trial th€
Jarne Term that the IJJue is joined, for that
would be apparently unneceflary, iSncc thi«
Placita came in, inftead of thefe Continuances^
and in this Cafe there is iione. But in the
King's Bench they always entered two Placita* s^
one at the top of the Roll^ and the other after
the Award of the Venire^ though the liOfue is
tried the fame Term it is joined; and for this
Reafon it is certain that antiently the Continuances
in that Court were from one Day to another iji
the fame Term, and not from Term to T^rnf^»
And this they ftill continue to do, though it is
feemingly at this Time apparently wrong ; for
in this Cafe the fecond Placita is Word for
Word with the firft, confequently it comes ia
very abruptly, and can have no Meaning at all
in it.
Having faid thus much of the Iffue^ and Ve-^
nire awarded thereby, we (hall now take a View
of the Record for Trial, by which the Awards
of the Habeas Corpora and Diftringas will ap-
pear,
Pf xmW^ up tDe BfQ ptfu0 EoU, 0)
After the Statute of Niji frius the Clerks in
the King's Bencby and the Prothonotaries in the
Common PleaSy ufed to make up a NiJi prius
Roll from the JJfue Roll, and give it to the
AttQiney under their Seal for Trial. But af-
ter
M JSfiorical ^reatife of a Suit at Law. Igy
:er Attornies took upon themfclves to carry on
Jic Proceedings by Paper Copies, they like-
«rife of courfe made up the IJfue Roily and Nifi
mus Roll (or Record, as we call it) for Trial,
md carrying them both with the Pleadings
to the refpe&ive Officers, they examined them
together; and keeping the IJJiie Roll to file,
they paffed and fealed up the Nijiprius Roll,
(which they gave back to fhe Attorney) as
cxtrafted and made up bv themfclves, being
then paid for the feveral Entries. And fo the
Record is ftjll fuppofed to be made up by thefc
refpefbive Officers whofe Bufinefs it is, and
who are to make up the proper Continuances
thereon as the Afts of the Court. Now in
malking up the Nift prtus Roily as thefe Officers
ufed to do, the fame is done in the following
Manner.
3!tt t&c Mn0 T^encfi. ,
They firft ingrofs in large Hand a Title
theretp called a * Placita, i. e. Pleas, being
the firft Word of that Title ; then in a new
Line is ingroffed the Iffuej with the Award of
the Venire^ verbatim j then ig addefl another
* Pleas, Placita, are now taken for all Pleadings, De-
bates, and Trials at Law, and are divided into Pleas
of the Crown, and Common Pleas. So Pleas here fig-
nify Pleas or Debates had before our Lord the King at
Weftminfter fuch a Term; PIms in the King^s Bqtch
being always fuppofed to be had before the King
himfelf,
?lacit^^
Ijf An Ktjiortcal ^reatije of a Suit at Law.
* Placita; and after this fecond Placita, in a
new Line, follows the Jurata, being the Re/pife
of the Jury, (as fuppofed to have been fum-
moned by the Venire) the Adjournment of the
Caufe, and the Award of the Dijiringas Jura-
tores ; the Jurata being the Aft of the Court,
grounded on a fuppofed Default of the Jurors
not coming on the Venire^ viz.
Pleas before our Lord the King at Weftminfter,
of the "Term of St. Hilary, in the Year
cf the Reign of our Sovereign Lord George
the Thirds by the Grace of God, of Great
Britain, France, and Ireland King, Defender
€f the Faith, i£c. 1765. Roll 25.
Lee.
Bcrkfhire, to wit. Be it remembered^ that w
Wednefday next after eight Days of St. Hi-
lary in this fame Term, before our Lord the
King at Weftminfter, came A. B. (^c. The
Iffue, with the Award of the Venire, verba-
tim J then the Jecpnd. Placita.
Pleas before our Lord the King at Weftminfter,
of the ^erm of St. Hilary in the Tear
cf the Reign of our Sovereign Lord George
the ^hird, by the Grace of God, of Great
Britain, France, and Ireland King, Defender
of the Faith, &c. 1765.
Berkftiire, to wit. The Jury between A. B.
. Plaintiff, and CD. Defendant, of a Plea of
Trefpjs
* When the Caufe is tried the fame Term the Iflue
lA joined, the fecond Placita^ as here, is Word for
Ward
An Hijiorical ^reatijc of a Suit at Law. f 3f
^reffafs on the CafCy (as 'tis) is * refpited
before our Lord the King at Weftminfter, un-^
til t Monday next after fifteen Days from the
Day of Eaftcr, (the next Return Day after the
Word as the firft ; but if it is not tried the fame Term
IfFue is joined, then the only Difference will be, that the
firft Placita will remain of the fame Term lifue was join*
ed of, and the^f^Wmuft be of the Term it is tried;^
Ranging the >^jne of the King, if the firft fhould be
dead. It has been obferved whjr two Placita' s are ufed in
this Court; but when it is tried the fame Term, that
K^afbn will not hold good now, and it feems to come in
very abruptly,
* The Reafon of this has been noted before. -
f This is the Adjournment-day, or Day in Bank^
being the firft Return-day after the Trial, and confe*
:quently the Return- day of the Diftringas ; until yi«r Day»
^ter which, final Judgment cannot be iigned j therefore th^
JPlaintiif makes it returnable as foon as conveniently may
be after the Day of Trial j as if it is to be tried at the Sit^
jtings ijuithin Term, then the Return may be the firft Re^
fum-dajf after the Sittings in the fame Term. But if it
is to be tried at the Sittings after Term, or at the JJpzes,
then it is ufually made returnable the firft Return of the
fubfequent Term. It may happen that the Caufe, for
particular Reafons, may be adjourned or put off by Con*-
<cnt, or, ^c. and not tried at the Time firft mentioned in
the Jurat a I and if in the Country, it may be fomc
Terms after, before it is tried ; in which Cafei when it it
to be brought on again for Trial, the Record muft be re-
fealed, the Niji prius Day, and the Return of the Diftrin'-
^as muft be erafed, and the new Day of Trial and Return
jmt in, which muft be after the Day of Trial, as before
pbferved. And as for the Terms intervening, between thp
Award of the firft Venire and the Return of the Difiringas^
they will be taken Notice of, in entering up the Judg-
inent, by Continuance f of the frfi Kenire^ by Ficecomes ns^
^r-.
%^ An Hiftorical Trefiti/e of a iuU at Zmw.
Trial) * unlefs his Majetfs Juftices^ ^ffignei
to b$lJ the Affixes in the County afore/aidy jhall
jirft come on K'^onday the fifth Day of Mar<:h,
4U Reading in the f aid Counfy^ according, to the
Form of the Statute in that Cafe made and
frovidedy f for Default of the Jurors becaufe
none of them did appear y % therefore let tbf
Sheriff have the Bodies of the faid furors ig
m<fke § the faid ftCry between thf Par^iti
Mforefaid accordingly || the fame Day is given
to the Parties aforefaid at the fame Plau
• Unlefs his Majeftfs Jufticts, l^c. the Statute of )^ifi
frius is x\itfecond of fVeftminftery 1285 ; but for Middejex
*he Statute muft be meant to be the x 8 £//*«. r . 1 2, for be-
fore that Statute there were no Juftices of Nifiprius for Mid-
Mefex ; but Caufes tried at Wiftminfter, before then> were
tried at the Bar.
t For Default of the Jurors, i^e. every Caufe that is tried
at Nifiprius, at this Time, is tried t}iYo\x^zfuppofedDefaiil
of the Jurors not coming to IVeftminfter on the Return of the
Vetgire, where they were fummoned to, and is the Ground
«n which the Jurata is founded, for refpiting the Jury, and
awarding the Difh-ingas,
X ^htrefon let oif. imperatively faid, the King com-
manding it.
^ The faid (not a) Jury, becaufe they are fuppofed
to be the fame Jury as were before fummoned, and no
others «
II The fame Day is ^i'ven, ^c. it being before obferved
^hy a Dies datus is added at the End of the Jurata in this
Court. The ^^tre is. Whether it is neceffary or not ? and
if neceiTary, why is it omitted in the Common Pleas ? A
J)ies datus was added to the Award of the Feuire, becaufe
the Defendant was originally effninnhle thereon ; and if he
did not appear, he had a Day of 5;ourfe to appear on the
Diftringas ; but if he did uct appear on the Difiringas, the
Jnqueft might be taken by Default, and no other Day could
))€ given him y then why is a Diss datus added here ?
And
4n J^fiorical ^reatifs of a Suit at La'af, f 4l»
. * And be it known that the King^s JVrit in this
Cafe upon Record was delivered to the Under^
Sheriff of the County afrefaid the twelfth Day
of February (the laft Day of the Term) in
this fame ^erm^ before our Lord the King a$
Weftminftcr, to be executed according to Law
at bis Peril.
If it is to be rricd in Town, at the Sittings
•within, or after Term, you fay,
Unlefs the King^s right trufly and well beloved
William Lord Mansfield, his Majefifs Chief
Jujl'ice:^ ajhned to hold Pleas before the King
bimfelfy fbdll firjl come on Thurfday th^
I)dy of February, at Weftminfter-
hall in the faid County of Middlefex, accord*
ing to the Form ofibe Statute^ (dc.
. And then. And be , it known^ ol^ z&AtA for the
AflTizes, is omitted ; but qu^re the Reafon for
it?
* jfnd he it kmmvn, £^f . the Diftringasy being awardcd-
on Default of the Jurors not coming to Weftmtnfier on
the Return of the Vemrey is here faid to be given the laff.
Day of they2zwf Term, to the Under-fheriff to be execut-:
cd, y^. If this is a necelTary Part of the Jurata, why is it
omitted, if the Caufe is to be tried in MiddU/ex ? Where
is the Difference, feeing every Caufe that is tried in JJf/V/-;
dU/ex is by Nifiprius, as well as in the Country ? (excep^hg.
Trials at Bar, which is out of the common Way.) Aad«
yet in Town Caufes this Claufe is always direded to be lefb
out, in both Courts, though there feems to be as mucli
Reafon for the Ufe of it in Town as there is for the
Country.
I4i An Wfiorical ^reatife of a Suit at Laiit.
2)f tttablng: up tlje BfOi pifuiS EoII ott
EecojQ, in tDe Common Iplea?^
The making up the Record in the Common
Pleas is likcwifc done after the fame Manner
with a Placiia prefixed, proper for this Court,
VfZ.
Pleas at Weftminftcr, before Sir Charles Pratt,
Knt. and bis Bretbren^ Jujlices of our Lord
the King of the * Bencb^ of tbe Term of St.
Hilary in tbe Tear of tbe Reign
of our Sovereign Lord George tbe thirds 6f r.
Roll. Jones,
Bcrkfhire, to wit. C. D. late of W. in the
faid County^ Teoman^ was attacbed to anfwer
to A. B. of a Plea of Trefpafs upon tbe Cafe,
fcfr. jind wbereupon tbe faid A. by R. B.
bis Attorney, complains tbat fcfr, fo oq
with the Iffue and the Award of the Venire,
verbatim-, after which they leave a Space
for a -f- fecond Placita, if needful, (as on the
Change or Death of the Chief Juftice ; or
if I he Caule is not tried of the fame Term
* Of the Bench, ^c, in a certain Place according to
Magna Charta, where Common Pleas were to be held by
his Majcfty's JuiUces, and therefore called Jullices 0/ the
Mench.
f Second Placita, f^c. a» this fecond Placita came in ai
a general Entry, inflead of the Continuances on the I^
Roll, and which were thought neither necefTary nor expe-«
dient to be entered on the Nijt prius Roll : So where there
was no Continuance at all, as when the Caufe was tried of
the fame Term the I//^e was joined, there was no Occafioii
for a fecond Placita, unlefs at the Death or Change of the
Chief J uflice, l^c. Therefore when the Caufe is intended ta
be tried xhtfame Term the Iffue is joined, there is no fecond
Placita, but only a Space left to add it, in cafe the Cauie
ihould not be tried, or in cafe of the Death or Change of the
Chief Juilice in the fame Term*
men-
M W^wriztl ^^izr..^ V : /' i l^^ sz Z-wr. I4 j
Z2 ». - » i* -* A <-| - WTt *^ ^V «» It E
€f ibc Jirr', aril .-.* -ri if 11^ £iiixr C.--
''r *fw* ^*#># "■^•^ t»r'^^^*M9 A It
^ ^
Cajif i: rfjrzu h^£ vr:i^ .^-'^ -^-C"- A**
liv Ili5r r'' iJiisr,^ tx^ ': rr; -^-Ir- 'i^ 'j /* -
/ires, a^iptii zi hi^ :hf jijizs: rt ;rf lui
Gpmff If li. ^zr^^irr :z :}i frm if :if Jj'r-
Htff 20 :ifi: C/:f ilz^ cni c^nz^ ,:' Jz^ ^^
cams ot Ifc^inr.n rr-f ^fvr IT.^i :*' Niirih, £/
fW7 ii£rA > «rx/ zsmi j zlr^cr'zrf U: zhf lie-
tiff iavt I'z'i h'j:uz r zm JfZfr^ rcr'vzs
mentipmi -t :l* rs^rtt. cniaxti zi zhf Ji't^t
TtBtL, ti mexi x / irn hsrzvfst zi^ Jsid Par^
tio if ibi Pm £firtj£ji. • jbi£ h it kncwKf
thttt th: Jiipittz hr-f :m Oaerz. zz zins lame
yienBu dtirjsrt:. l JTn; zhsraaum zt tin Unitf
Sberiff IT zlx 'cs Csa:^^ zi pi extztatd in diu
Farm if Ijit::^ tsz.
If 10 fac triei 'zz Tcwa a: the Sittings, y^v
ay.
Jd^fs Szr Cnarisi Prin, Knight, bis MajM/i)
Chief Jubizt tr zht Lmzh bsre^ aH^Mi ^
hold T^tt^ a Wcdxin2:rr, aciw^v .■ ^
• And ht ti. r.«>-^Xj ii'-. Set liit ^i^^i
»> -
5^«r
^44 -^ Hiftorical ^reutije of a Suit at Lowi
Form of the Statute in thai Cafi made and
provided^ /ball come before on the
Day ^February, at Weftminfter
aforefaid, in the great Hall of Pleas tbere^ com-
monly called Wettminfter-hall, intbefaid Coun-
ty of Middlefcx,/(?r D^fault^ (^c.
And then, yinJ be it known^ &fr. is omitted
here, as it is in the King's Bench.
Refpeft being had to the Courts the Dif
iringas and Habeas Corpora are awarded by, and
rtiade returnable in, there appears no material
PifFerence in the Awards thereof, any more
than there is of the Venire. Both conta.in, in
brief, the Subftahce of the refpeftive Writs ;
ahd as the Venife in both Courts is the fame,
except in the Return, fo the Diftringas and
Habeas Corpora are to one and the fame Pur-
port and Effeft, though called by different
. Names, viz. Dijiringas in the King^s Bencbj
from that Word formerly ufed therein, Pr4ec,
tibi quod Dijiringas ^ i^c. Jur. Sum. fc?r. And
Habeas Corpora in the Common Pleas y from thofe
Words in the Writ, Prac' tibi quod Habeas
Corpora coram Jujt. G?c. Jur. fumy i^c. Both
iffue on a fuppofed Default of the Jurors not
appearing on the Return of the Venire ^ ('tis
faid thro' ?JuppofedT>thv\tyTor in f aft originally
thefe Writs were not grounded on a Suppofi-
tron only, as they are now', biit on a recil De-
fault;) and therefore the Courts, by virtue of
the S'tattite of ISfiJi prius^ adjourned the Cstufe
to a future Day, and gave a Refpite to the Jury
until then, in order that the Caiife ' fhould be
tried in the proper County before the Juftiees
q{ Niji prius \ for which Purpofe thefe Writs
are awarded, thereby commanding the Sheriff
to have the Jury before them at Wejlminfler^
2 at
An Hijiorical .^reati/e of a Suit at Law. 14^;
at the Return thereof, urilefs his Majefty's Ju/-*
tices ajjigned to hold the Affixes ^ Jhallfiirft comd on
Juch a Day and Place^ fcfr.
The Record is the Sum of the whole Pro-
cefs ; therefore fully to difleft and examine
every particular Part of it, from the firfl: P/j-
cita to the Jurata^ together with the feveral
Matters and Things to which it relates^ would
afford much Pleafure and Profit to a curious
Inquirer, as the fame may be done with much
more Exaftnefs and Nicety than here is pre*
tended to be, and many Things now unno-
ticed would be accounted for \ and then, thofe . .
Things which now appear fo obfcure and un-
intelligible, might feem to have been one Time
material, though they are now become obfo-
lete and unneceffary.
But to go on ; the next Thing to be confi-
dered in the Suit is the "fury Procejfes^ that is,
the Venire^ the Dijiringas^ and the Habeas Cor-
pora* For this Purpofe a View of thefc Writ^
in the prefent printed Forms will be neceffary,
as in all Probability they are the fame in Sub-
fiance, if not in Form, that they were many
hundred Years pall. And hence will appear
whether any Reafon can be afiigned why two
fuch Writs, as are now made out to nick with
the Occafion, are itill neceffary -, or whether
the Venire alone may not be made fufficlent to
bring a Jury together to try a Caufe, and fully
anfwer the End of both j fo that the Record
may be fhortened by ftriking out the Jurat, and
much Expence faved to the Parties in the Suit.
Che 2!enfre fii tlje l\fntj'0 13cnclj.
GEORGE the Third, ifc. to the Sheriff cf
Berkfliire, Greeting. We command you, that
I^ you
146 An Htftorical ^reatife of a Suit at Law.
yen * caujeto come before \ Us at Weftminfter,
on % Wednefday next after eight Days of the
Purification of the blejfed Virgin Mary, || twelve
free
* Caufe to come, ISc. not by the PoJ/e Comitatus^ to
compel them, but per boms Summonitores , to warn them
to come. And here two Things fays Lord Coke, arc
to be cbfcrved; firft, that the Summoners mufl be boni,
i. e, fide Digni ut Vedeant Ligitimum Tejtimonium perhibere,
cum inde pet' Jufiiciarios fuerunt requifiti. Secondly, It is
fpoken in the Plural Number, per bonos Suj^monitores, and
therefore there muft be two at Leall.
f Before Us, ^V. the King, as obfen^ed, being fiip-
pofed to fit in this Court in Perfon ; all Writs returnable
therein, are returnable before himfelf ; whereas in the
Conunon Pleas, they are made returnable before his J unices
at Wcfimhiftfr, \^c,
§ Some Return Day before the, Day of Trial. The
Writ fiiould be tefted the iirll Day of that Term the Iffue is
joined of. See under Award of Venire.
II T'lvehe, l^c. a Trial by a Jury, and the Number T^wdvi
is more ancient than any written Law we i\ave. That it was
in Ufe in the Saxon Times, is manifeft from the Laws of King
Ethelred, made at Vanatinga, [Vanting, Wanatinge] now
Wantage, in Berks, which fpeak thus: " In all Hundreds^
*' Ut there be AJjhnblies , and tnuclve Freemen of the moft an'
*' cient, together (cum Praepofito, in Saxon gepepa) *witb
*' the Rce<ve of the Hundred, JhaJl fnvear not to condemn tbi
'' Innocent, nor ahfol^e the Guilty. '** The County and Hun-
dred Courts were the Courts wherein Caufes between Par-
ty and Party were chiefly heard, and determined by a Jury;
and the main Reafon of the great Silence of a Trial by st
]\xyY^ before or in the Saxons Time, by our Writers, may
be, that the vulgar Purgations [the Ordales"] were notwith-
flanding the mofl ufual Means of trying Perfons, and efpe-
cially in criminal Affairs. Thefe were of divers Sorts, and
then every where in ufe; and Sir Matthe-iu Hale fays,
*^ I^hat in all the ^ime of King John the Purgations per Ig'
** nem et Aquam, or the ^rial by Ordeal, continued, as appeaii\
^* ^by frequent Entries upon the Rolls, But it feems to ha*ve
'* ended vjith this King, for I do not find it in ufe in any Tims
** after^jjardsJ*' And N. B. Although it be T^wetve in
the
yh Hijioricat ^redtife of a Suit at Ldix^. t47
* free and f lawful Men % of the Body of y out
County^ each of whom having || ten Founds a Tear
the Writ, yet by ancient Cuflom the Sheriff muft return
24 ; fo that, in this Cafe, Ufage and ancient Cuflom maketh
• Law.
• Free^ Wr. The Tenure by Villainage came in with
^ SmxMs ^ confequently, before then, there could be no
inch DiftindoQ as between Free and Bondmen : but after-
wards, during the Continuance of that Tenure, Villains ^
being fubje6l to the Wills of their Lords, were not to be
pat on Juries. So careful was the Law in choofing ^free
Jury, not fubjecl to the Influence of any Perfon ! But
iince the abolifhing that Tenure by Stat. 12 Car. 2. other
Confiruftions are improperly made of this VI ord free, as to
be free from Prejudice, Envy, i^c.
t Lawful, fie. That is Men fubje^l to the Laws
of the Land; and therefore not Aliens, nor Outlaws,
X Of the Body, Vc. This was ordered fo lately as the
4^5 Anna\ before which Time, the Jury ufed to be
awarded from the Vifne or Neighbourhood, as Town,
Parilh, or Hundred, l^c. and the Reafon was, becaufe
S[tu Vici/ms foBi Vicini frtefumitur fcire. And then the
Writ run. Homines de Vicineto de W. in Com* tuo. — But
as a Jury was often wanting for Want of Hundredors,
dji\y qualified, it was ordered by this Statute that
the Jury fhould be awarded out of the Body of the
County,
II Ten Pounds, l^c, that from their Worth they might
be able to bear their Expence, and Lofs of Time in their
Attendance on the Trial ; and not, that Honefty and Juf
tice were not to be found among the poorer Sort of Peo-
ple. By the Statute of Wefiminfter 2. r. 38. it was to be
20/. only. By 21 Ed. \. \os. By 35 H. 8. the Form of
the Writ is defcribed to be, — Praciplmus, i^c. quod Ve-
nire faci^, ^c. quorum qualibet habeat 40 Solid*, ^r.
wul minuf per quos Ret Veritas, bfc. By 27 El. 4/, and by
4 CsT 5 ^. ^ Af • 10/. and 61. in fVales, as it remains at
this Time. But quaere, if 20 /. the 1 3 £. i . was not more
worth than lo/. now?
L 2 at
148 ^n Hijiorical "treattje of a Suit at Law.
at the Uajl in Lands, 7'enemenls, or Rents^ by
ickom the 7'ruib of the Matter may be the bet-
Ur known, and who are in no wife of * Kin
either to A. B. the Plaintiff, or C. D. the
Defendant, to -f* make a certain Jury of the
County between the Parties aforefaid^ of a
Plea of Trefpafs on the Cafe^ hecavfe as well
the faid CD. as the aforefaid A. between
whom the Difference is, \\ have put tbemfelves
upon that Jury •, and have you there the Names
of the Jurors, and this Writ. Witnefs Wil-
liam Lord Mansfield, at Wtftminftcr, tht ,
13^ Day <?/ January in the Teat
of our Reign. Lee.
Clje ajenfre in tlje Common pieais.
G E O R G E, fcfr. To the Sheriff of Fcrkftiire,
greeting. We command you, that you cauje
to come before our Jujiices at Wcftminftcr,
in eight Days of the Purification of the
Blejjed Mary, twelve free^ Csfr. who are in
no wife of Kin either to A. B, the Plaintiffs
• No iJui/e of K'tHy ^c. an excellent Care in the Law,
both in refpci^t to the Jury and Parties ; for the being of
Kin would be apt to render their Judgment fuipicious of
Partiality.
f To make a certain Jury, &c. ad Recognizandum*
The' Words in the Award of the Writ are here render-
ed to make a certain Jury, becaufe the Jury was fome
Time called Recognitores , as Recognitores JJfiz,a in Affize.
II Have put, K^c. i. e. have lubmitted thejnfelves,
and the Matter in Difpute, to their Judgii.ent ani
Opinion.
or
An Hijiorical Treati/e of a Suit at Law. 149
or C. D. late of W. in your County^ Teoman^
the Defendant, to makey fc?r. IVitnefs Sir
Charles Pratt, Knt. at Weftminftcr, fhe 23d
Day of January in the Tear of our
Beign. Jones.
The Vejiire in this Court is the very fame as
in the King's Bench except in the Return, and
the adding the Defendant's Addition to his
Name.
Clje Dfffrfngais fn tfie K&fHg'jS TSencIj.
GEORGE, &?r. to the Sheriff of B. Greeting.
IVe command you^ that you diftrain the Bodies
of the fever al Perfons named in the * Pannel
hereunto annexed^ -f Jurors fummoned in Our
. Ccurt before Us^ between A. B. Plaintiffs and
• Named in the Pannel, ^c, 'Till lately the Writ run,
Pr^ecipimus tibi quod dtfiringas A. B. de^ l^c^ C. D. de—^
P, F. de cff . naming the whole 24 with their Addi-
tions, as they were named in the Pannel returned on the
Venire \ for the Return to the Venire was InIb*uflions to
the Attorney to make out the Diflringas by : but now, as
the like Pannel is returned in both Writs, the Sheriff will
return the Diftringas without the Venire^ fo as he is paid
for the Returns of both ; by which the Venire is become al-
moft ufelefs, and is feldom made out at all in the Kin^s
Bench.
f Jurors fummoned i l£c, as fuppofed by the Venire ; for
by Stat. Weftminfter 2. Nonejhall he put on Juries hut fuch as
njQere hef ore fummoned, 'Tis well known the Jurors are fum-
moned of courfe, by the Sheriff, without either Writ, un-
lefs 'tis a Special ]\xvy.
L 3 CD.
I to An Uifiorkal freatije of a Suit at Law. ^
CD. Defendant^ * by all their Lands and
Chattels in your Bailiwick, Jo that neither they
nor any of them do intermeddle therewith^
until you jhall have oth^r Command from Us
in that Behalf and that you anfwer Us for the
Iffues of the fame^ fo that you have their Bo-
dies before us at Weftminfter, •\- on
next after fifteen Days from the Day of Eafter,
§ or before our JujUces ajfigned to bold the
Affizes in your County^ if they /hall firSt come
en Monday the fifth Day of March at R
in your County^ according to the Form of the
Statute in that Cafe made and provided^ to
make a certain Jury between the faid Parties^
of a Plea of Trefpafs on the Cafe^ and to
bear their Judgments of many Defaults \ |1 and
have you there the Names of the Jurors and
this Writ. Witnefs, f^c.
'^^m
* By all their Lands, £ffr. It would be a fcvere Diibefs
on the Jurors, if this Writ was to be executed liter^ly. The
flabeas Corpora has no fuch Claufe.
t On, i^c. The Writ fhould bear Tejte on the Return
Day of the Venire, and be made returnable on fome Day afr
ter the Trial ; if tried at Nifi prius, *tis ufually the firft Rer
turn of the next Term.
§ Or before, Jffr. This Nifi prius Claufe is the moft
material Part of this Writ, and before the 42 of Ed. 3,
it ufed to be inferted in the Venire ; for, until then, the
Diftringas and Habeas Corpora never iflucd but of Nc-s
ceffity.
II And ha^e you there the Names, l^c. This is omit-
ted in the Habeas Corpora, and with good Reafon ;
for their Names having been before returned into Court
by the Venire, as this. Writ itfelf declare.". Jurors
fummoned, faff, therefore this Part ieems quite fuper-
'fluous,
If
An Ktfiortcal Treatife ofUi Suit at Law. i^%
If for Middle/ex, you fay.
Or before our trufty and wett-beloved W. L. M.
ajfigned to bold Pleas in Our Court before Us^
if hefiall come on the
Bay of at Weftminfter in the
faid County.
If for London^
At Guildhall of the City of London aforefaid.
C5e |)abea!5 Corpora in tlje Common
G E O R G E, 6?r. To the Sheriff of B. Greeting.
We command you^ that you have before our
Jujtices at Weftminfier, in fifteen Bays from
the Bay of Eafter, or before our Juftices af
Jigned to hold the Afftzes in your Xlounty^ ac-
cording to the Form of the Statute in that Cafe
made and provided^ if on Monday the fifth
Bay of March, at R. in your faid County^ they
Jhall fir ft come^ the Bodies of the fever al Pcr^
fons named in the Pannel to this IVrit annexed^
being the Jurors fummoved in Our Courts be-*
fore our Jultices at Weftminfter, between
A. B. Plaintiffs and C. D. late 'of W. in your
County^ Teoman, Defendant^ of a Plea of Tref
pafs on the Cafe^ to make that Jury ; and
have you there this Writ. Witnefs^ ^c.
If for MiddlefeXj you fay,
Or before Our faithful and well-beloved Sir C.
Pratt, Knight^ Our Chief Jujlice of our Court
L4 of
|5^ An Hijioricdl T*reatife of a Suit at Law^
of the Bench^ appointed according to the Form
of the Statute in that Cafe made and provided^
if oy the Day of
at W ftminftcr in your County^ be fhall firjl
come^ thj Bodies^ <^V.
I
For London^
If on the Day of
at Guildhall cf the Ci'y of London aforcfaid^
he ftjall firjl, ^c,
. Though the Tenor and Intent of thefc two
Writs are for one and the fame Purpofe, that
is, to conftrain the Jurors to appear, who had
before been funnmoned, and had made De-
fault 5 yet we fee the Dijl ringas \s mort full
and compulfory than the Habeas Corpora. The
Habeas Corpora is plain and fimple, and yet
fignificant; very concife, and yet full and fuf-
ficiently inftruftive, without any fuch compul-
fory Matter as the Dijiringas is fluffed withj
as, Dijl7'ainy (j?c, by all their Lands and Chat-
telsy i^c. Jo that neither they^ nor any other for
themy do intermeddle therewith^ i^c. tmtil, &c,
and that you anjwer Us for the Ijjiies of thejamey
Jo that^ isle. It may be prefumed that the
Kings Bench y inftead of taking a Precedent
from the Habeas Corpora^ (wherein the only
Difference neceffary to have been made would
have been the snaking it returnable before Us^
inftead of before our Juflices) might think pro-
per to ufe the fame Form in Civil Cafes, which
th^ey before had ufed in Criminal. But with-
out defcanting on the Form, let us confider
the Ufe, and fee if the fame NecefTity remains,
for ufing two fuch Wriis for Trial, as there
formerly did.
3 It
An Hiftorlcdl ^reatife of a Suit at Law. 153
It has been obferved, that after the Statute
of Nift priusy until the 43 Ed. 3. the Venire
was the only general Procefs that iflued to bring
in a Jury, and in which the iV//? ^r///j Claufe
was inferted ; and if the Parties appeared, they
went to Trial thereon. And the Reafons for
iifing or introducing the other Writs, were
thefe ;
Firjly As the Jury was awarded out of the
Vifne^ it fometimes happened that, for want
of Hundredors, a full Jury did not appear;
in which Cafe the Jury were obliged by the
Writ to appear in Bank ; but this they feldom
did, becaufe no Iflues were returned on the
Venire ; therefore this was the common Cafe
in which the Diftringas and Habeas Corpora if-
fued to bring them in. But this Reafon will
fail now, becaufe the Jury are awarded out of
the Body of the County, and a full Jury fel-
doiTi fails to * appear.
Secondly, If the Jury appeared at the Jf-
fixes on the Venire, the Defendant might ejfoin
himfclf J which if he did, the Jury, as to
that Caufe, returned Re infeSla, and the Caufe
was adjourned to Wefiminfier. Now in or-
der to get rid of the Defendant's Effoin at
JSIift priusy they made the Venire returnable
in the fame Term the Iffue was joined, inftead
of the fubfequent Term after the Affixes^
and then iflued out the Diftringas or Ha^
beas Corpora returnable the fubfequent Term,
with the Nift prius therein ; on which the
♦ And in Gafe they do, they may be fupplicd by a Tales,
as fee fofi,
De-
154 ^ Hiftorical Treati/e of a Suif at Lav>.
Defendant had no EJfoin allowed. (J^ide ante^
p. .) And this almoft introduced the for-
mal Manner of making out thefe two Writs
for Trial, even as we do now. This, how-
ever, was not the conftant Prafticc, for they
fometimes went to Trial on the Fenirey and
only iffued out the Diftringas or Habeas Corpora^
when it was thought the Defendant would take
the Advantage of his Liberty to caft an Effoin.
But even this is fo long ago as upwards of 400
Years fiace ; and the Manner of ejfsining^ nay,
the Thing itfelf, is obfoktc and fiwgotten, and
can therefore be no Reafon why the Venire
alone is not at prefent a fufficient Procefs with
the Niji prius therein, to fummons a Jury
and go to Trial on.
Thirdly y It was complained that the Parties,
by not feeing the Pannel before-hand, could not
be prepared to make their Challenges ; there-
fore, to remedy this, it was enafted by the 42
Ed. 3. r. II. (near 400 Years fince,) ^^ That no
" Inqueft buty t^c. Jhould be taken by Writ of Nift
*^ prius, before the Names of them that were to
*^ pafson the Inqueft yjhouldbe returned into Court. ^^
This fully eftabliftied the two Writs as neceflaiy
for Trial i for from hence they could no longer
place the Nift prius Claufe in the Ventrey but
It was taken out and placed in the Diftringas
and Habeas Corpora ; and all the Uie that was
now made of the VenirCy was, to get a Pannel
of a Jury returned into Court by the Sheriff,
on which the "July was faid to be impanelled \
and the Names of the Jury, as returned in the
Pannely were inferted in the Diftringas and
Habeas Corporay and then fummoned thereon
by the Sheriff.
But
I
dn Wfiprical Treatife of a Suit at Law. jte
But this Pradtice having beea long difufed,
the Fenire is become ufelefs, and may or may
not be made out in the King's Bench. If
made out, it is moft ufually returned toge-
ther with the Diftringasy and not before ; or if
not made out at all, the Sheriff makes the
feme Return by his Pannel to the Dijtringas,
and is then paid for both Returns at once,
whereby the Attorney faves the Profits of the
Writ to himieir* What Ufe is made of it in
the Common PleaSy but to pay the Clerk of the
Habeas Corpora his Fees ? How does the De-
fendant fe© the Pannel any Time the fobner, as
tiie Plaintiff has the PoffelTion of it even to the
Trial, fcff:. ?
It is very evident the Writ is become
meerly formal and ufelefs ; and therefore if
one Writ can be faved, and if every Caufe
is rctnoved, by Difufe or otherwife, for the
Ncceflity of two Writs, why fhould not the
Vjenire alone (as it originally was and may) be
eftablifhed* as the only one for the Sheriff to
fumnion a Jury on, efpecially as 'tis evident
that it is (at leaft it may be made) a full and
inftruftive Precept for that Purpofe ? And if
fo, why fhould any Thing be retained that is
fuperfluous, and may be fpared, and only tends
to perplex the Proceedings, and multiply Cods ?
The Benefits that would arife, by eftablilhing
the Venire as the onljjr Procefs neceffary, would
be, that the Record might be Ihortened by
the Jurat, which would become then unnccef^-
fary ; the Writ of Diftringas and Habeas Cor-
pora, and the Return thereof faved, (for the
Sheriff is now paid for two Returns, though
one and the fame Pannel ferves for both Writs,
fyid though the Venire is never made out at
J all)
156 '^n Hijiorical ^reatife of a Suit at Law.
all) and much Expence in every Caufe, that
is created thereby, would be faved to the Par-
ties.
£Df 3!ufffce0 of aHije, ann jl5fO priUjEf.
It has been mentioned that the County and
Hundred Courts were formerly the Courts where-
in were heard and determined by a Jury, all
Matters of fmall Concerns between SuhjeSl zn^
SubjeSl. But Aftions of a fuperior Nature, as
Aftions of * AffizCy i^c. were to be heard and
determined in the Kings Courts, or Courts
above. But as Aftions o{ AJfize always paffed
by a Jury, and it being difficult and expenfive
for a Jury out of the County to follow the
King's CeurtSy or to attend at Wejiminfter after
the Common Pleas was fettled there, it was
about 1 176 that Jujlices in Eyre^ or Itineranty
were appointed by a fpecial Commiflion to go
into ev^ry County to take AJftzeSy and were
therefore called Jufiices of AJftze\ and after
their taking fuch Affixes^ the Commiflions
^mmm
• AJJi%ey Isfcn may come from the French, AJJis, and
that from AJJideoy to fit together. In general it fignified
an AfTembly of certain Men wijth the Juftice, fitting toge*
ther at a certain Place and Time ; as the Judges are faid to
hold their AJJixes (or Seflions) when they go their Circuits,
AJ/izes alfo fignified certain Writs, formerly much in Ufc
in real A6llons ; and it is prefumed, were fo called from
their calling together and authorizing certain Perfons
to fit thereon : As the Writ of Ajjixe of No'vel dijfeijin ;
of Mort d^AnceJioty l£c. In fuch Adions it alio fig-
nified the Jury, and the Pannifel, the Pannel of AJfizesj
t^c, St. 6 H. 6. and fuch Adtions, Aftions of AJpze,
wero
An Hijlorical "Treatifi of a Suit at Law. 1 57
.were returned into the Courts above, for a
Confirmation of what they had done.
Now as it too frequently happened that thefe
JuJiiceSy thro' fonne Difficulty in the Caufe, or
upon the EJfoin of the Defendant, or other Mat-
ter, adjourned fuch Caufes to the A'm^'j Courts,
or Court at Weftminfier^ to be determined there,
to the great Inconvenience and Expence of the
Jury, and the Parties concerned; therefore,
in order to remedy this, and that Aftions of
Affize fhould be tried in the proper County,
the Statute of IVeftminfter the fecond, called
the Statute o( Nift priusy v/as made, by which
it is enafted, '^ That from henceforth two
** Jujlices fworn fhall be afiigned, before
*^ whom and none other, Afjizes of Novel
^^ difeifiHy ^3c. fhall be taken, and they fhall
** * afTociate unto themfelves one or two of
** the difcreetell Knights of the Shire, into
which they fhall come, and fhall take the
faid AJJizeSy (^c. and fuch Inquifitions Jhall
not be determined by any Jujiices of the
.5* Bench, unlefs a Day and Place certain be
^' appointed Mn the Shire, in the Prefence of
*' the Parties. And the Bay and Place fhall
*^ be mentioned in 2i judicial Writ by thefe
*' "Words : Pr^ecipimus tibi quod Venire facias
coram Jujiiciariis nojlris apud fFeJlmonafte-
rium in oSlahis SanEli Michaelis^ niji talis et
talis y tali Die et LocOy ad Partes illas Vene^ .
*^ rinty duodeciniy fc?r. And when fuch In-
** quefls fhall be taken, they fhall be returned
into the Bench, and there fhall Judgment be
cc
• From hence is cefivcd the Judges JJJhciate^ and Cler^
of JJJiz.e.
(C
given
158 An Hifiarical ^reatije of a Suit at Law*
" given, fe^f." (This plainly fhcws the Nift
frius Claufe was firft in the Venire.)
This Statute leads us to confider the Jufticei
of the Be77cby and the Jujiices ad Capiendas -^-
/izasy in different Lights ; the JuJiices at Weft-
minjiery as Judges in Banky before whom the
Proceedings were to continue to be, until they
gave final Judgment on the Matter; the 7^-
tices of Affizdy as Commfliioners fertt on Puf-
pofe (for the Eafe of the Parties and Jury) tx)
try the Caufe in the County, and make their
Return to the Jujiices of the Bench ^ of what
was done therein, in order that the Inqu^
found by the Jury might be confirmed by
them. And 'tis for this Reafon that the Venite
then, and afterwards the Habeas Corpora and
DiJiringaSy were made returnable at fVeftminfter.
Another Thing to be obferved is, that theft
Jufiices ad Cepiendas Ajfizas were not the Juf-
tices of the Bench ; for thefe had no Power to
take AfTizes before the 8th oiR. 2. f. 2. but
were enabled thereto by this Statute, from
which Time thefe CommifTions ad Capiendas
Ajfizas foon came to be enlarged, and were made
to contain CommifTions ofi Nlfi prius and Gaoh
delivery y ^c. and to be executed more regu-
. larly^ and ^t certain Times, that is, in Ijent-
time and the Long Vacation ; thefe being the
mofl leifure Times for the Judges to go, and
the Counfel to attend them in their Circuits.
Another Thing is, that London and Middle^
fix were Counties excepted out of thefe Gom-
mifTions, by reafon the Courts themfelves were
fettled in thefe Counties ; and therefore it was
complained of by 18 Eliz. c. 2. *^ That here-
" tofore all I/fues joined in any of the Courts of
*^ Record at tVejlminfiery triable in the Countyot
^\ Middlejexy
An Hiftorical ^reatife of a Suit at Law, 1 59
'' Middle/ex y have been ufually tried at the Bars
" of the faid C ourts. And that great Num-
" bers of Aftions have of late Years been
** brought in the faid County of Middle/ex for
" Specdinefs of Trial, &fr. by Reafon where-
** of the Judges had been hindered in >Pro-
^* ceedings before them, by Dennurrer or other-
** wife, to th€ Delay of Juftice, ^c. and there-
'^ fore it is enadted, that the Judges of the fe-
*^ veral Courts, i^c. fhall or nr^ay, as Juftices 01
** Niji prius for the faid County^ within Term,
*' or * four Days after the End of every Term,
** try all Manner of Iffues, (^c. and that Writs
*^ of NiJi prius fhall be awarded as for any
" other County, &'c." So that all Iffues that
are now tried at JVellminliery at the Sittings
within or after Term, and in every other County,
are tried as at Nift prius \ and not only the
Venire J but a Dijiringas and Habeas Corpora
iffue, there being no Trials at Bar but what are
granted by fpecial Leave of the refpe6live
Courts, on fome great Affair.
The Nifi prius Day^ and the Day in f Bank^
were efteemed in Law as one Day for fome
Purpofcs: As if the Defendjipt made Default
at Nifi prius, and an in/ufficient Proteftion, or
Effcin, was caft for him, by reafon whereof the
Inqucft was not then taken > and if at the Day
in Bank the Proteftion was difalloivedy the In-
queft then paft, whether the Defendant ap-
peared at the Day in Bank or not s even as it
would
• By a late Statute this Time is enlarged.
f The Day in Bank in the Common Pleas, is the Effoin
Day of the next Term after the JJJizes, fo that if the
Defendants EJ/'oin . the Ajfzes was difallowcd, Judg-
laent was to be entered up as of the Day in Bank or
Ejjgin
1 60 An Hijtorical ^reatife of a Suit at Law*
would have, done at Niji priusy had no E/oin
been call at all for him. Some time after,
the Day in Bank was taken up in examining
the Sufficiency of EJfcins on the Defendant*^
Appearance then, i^c. from whence 'tis prc-
fumed come the four Days after the Day in
Banky befofe final Judgment can now be figned
on the Pojteay and which are now allowed for^
the Defendant to move in Arreft of Judgment,
or for a new Trials (s?c.
€)f tljc Ccfal, Jurp. auli Calciaf.
Having fpoke .of the Jury Procefles, we come
now to fpeak of the Jury themfelves, and of
the Trial by them of the Matter in Iffue; which
is to find out the Truth thereof according to
the Evidence that is given to them by the
Witnefles of each Party. Their Oath is, fFell
and truly to try the IJfue joined between the Parties^
and true Verdi^ give according to the Evidence.
And in giving their VerdiS they muft all agree;
for the firft Queftion the Court puts to them,
after they have gonfidered of the Matter, and
come to offer their Opinion is. Whether they
are all agreed in their VerdiSl ? To which tbc
Foreman muft anfwer, Tesy in the Prefence
and hearing of them all.
EJ/bin Day ; which is the Reafon why Judgments in this
Court relate to the EJJoin Day of the Term ; but in the
Kifi^^s Bene/? the Day in Bankvfzs the quatuor Diefoft, which
they reckoned the Jirfi Day of the Term, and on which Judg-
ments in this Court were to be entered up, which is the Rea-
fon why Judgment? in the King^s Bench relate to the firft
Day of the Term only, and not to the EJfoin Day.
A
Jk Hyiorical Treati/e of a Suit at Law. i6i
A trial may be faid to be two-fold, that is,
in Fast and in Law. Firjt, The Siuefiio Juris,
or a Trial on Matter of Law, is ufually tried
by the Judges on a Demurrer or Ipecial Ver-
dia, Gff. Secondly, The ^ejlio FaSti, or a
Trial of FaEt, is to be tried by a Jury, and
not the Judges j for, ad ^eftionem Juris re-
Jpondent Judices, ad ^ejlionem Fa£li refpondent
Juratores.
A trial by a Jury of fo many Friends and
Neighbours, as they are efteemed to be, and
wherein they muft aJl agree, is one of the faireft
Means in the World tor obtaining Juftice (if
not the only one) for any Certainty. And in
this Kingdom it is fo vtry ancient, that we
find it was praftifed before any of our writtea
Laws were eftablifhed. And the ^alijicationi
of the Jurymen, as required by the Jury Pro-
cefs, clearly evince how careful the Law was
of having Juftice done, and that neither Party
fliould be diflatisfied with their Verdidt j for,
as hath been noted, they were to be,
Firft, Liberi et Legates^ Homines, whereby all
Villains, Outlaws, (^c. are excluded.
Secondly, De Vicineto, whereby they are pre-
fumed to know fomething of the Faft, iSc.
Thirdly, ^orum qualibet habeaty fcfr . where.,
by having a Freehold of fo much a Year, they
may, without any Refleftion on the poorer
Sort, be efteemed to be Men lefs liable to
Corruption, and better able to bear the Trou-
ble and Lofs in attending.
Fourthly, Et qui nee A. B. nee C. D. tfr,
whereby all Affinity and Confanguinity to
cither of the Parties is taken away.
Fifthly, Ad faciendum quandam Jurat. Pa*
tri^e, tfr. whereby Peers are excluded from
M inter-
i6i An WftorUal ^reati/e of a Suit at Law.
intermeddling with Matters of the poorer Sort,
for they arc not Pares Patri^e^ but Pares of an
higher Rank.
If either of thefe Qualifications was found to
be wanting, in any or either of them, it was a
fufficient Ground for objefting to fuch a Jury-
man's pafling on the Inqueft. And thus it
continued until the 35 //. 8.^. 6. but as it
too frequently happened that (as the Jury were
to be de Vicineto) for want of Hundredors, duly
qualified, a full Jury did not appear 5 or if
they did, were often challenged as being of
Kin to one or other of the Parties ; or in fome
other Refpeft not indifi^erent Men, whereby
great Delay and Trouble as well as Expences,
were had ; therefore, by this Statute, it was
pnafted, that the Sheriff Jhould return for the
future fix of the Jury out of the County, and fix
cut of the Vifne ; and in cafe a full Jury did not
appear, then the Sheriff was to return a Supply
of Men of the County from out of thofe then in
View of the Court, in order that the Caufe fhouli
not remain untried. This Statute gave Rife to
the T!ales de Circumftantibus, which was not at
Common Law as the Jury was. And hence,
if a full Jury did not appear, the Court, at the
Prayer of the Party, direfted the Sheriflf to
return a T^ales ; and thereupon the Sheriff, re-
turned a fufficient Number of fuch as were then
in View of the Court. Thefe were to be of
like Reputation with thofe impanelled before.
By the 4 y 5 of JT. tsi M. thefe r^/^j Men
were to have 5 / a Year; and by the 7 &f 8
of /F. 3. they were to be Freeholders or Copy-
holders of the County. But many Inconveni-
ences flill attending the too frequent Delays by
Jurors not appearing, or Challenges made to
a them^
An Ktftorical freati/e 0f a Suit at Law. 163
them, and the Difficulty of fupplying fuch
Deficiencies by Perfons properly qualified to
be chofen upon the Talesy a further Remedy
was thought neceffary, in order to expedite
Juftice; and this was provided by the 4 £5? 5
Anna^ whereby it is enafted, that the Venire
Jball be awarded out of the Body of the County ^
which has rendered the Tales almoft ufelefs, for
it feldom happens now but a full Jury ap-
pears.
Upon the Jurors coming to the Bar, they
are called over as named in the Pannel ; and as
they are called, either Party has a Right to
challenge them ; and if good Caufe be (hewn
for fuch Challenge, it is allowed, and the Of-
ficer proceeds to call the next; and fo on,
until 12 out of the 24 are fworn. This Chal-
lenging the Jury is of common Right, and
was formerly frequently ufed.
A Challenge (JCalumniaj a feigned Word) in
a legal Senfe, as applied to a Jury, is an Ex-
ception againft them ; and is twofold, viz. to
the Array y and to the Foil.
A Challenge to the Array is a general Excep-
tion to all the Perfons fo * arrayed or impan-
nelled,as well to the^mrip^/Pannel as the ^ales.
And this was, and is generally done in refpeft
of Partiality, or Default of the SheriflF, and not
of the Perfons impannelled; as where the She-
riff is of Kin to one of the Parties, i£c.
A
• Arrayed or impannelled. The Names of the Jurors
ue ranked by the Sheriff in a long Strip of Parchment
sne under another, which Ranking is called the Array :
So in common fpeaking we fay. Battle Array, for Order
M .2 of
1 54 An Hiftorical ^reatife of a Suit at Law.
A Challenge to the Poll is an Exception
againft one or more particular Jurors ^ and this
may be peremptory or principal.
A peremptory Challenge is an Exception to
any of the Jury, without Ihewing any Caufe;
•which is only in Cafes of T^reajon or Felot^^ in
Favour of Life. At Common Law a Pnfoncr
could challenge* /)&/r/y-/x;^ peremptorily; but
by 38 H. 8. they were reduced to twenty y
whith in Felony is ftill in Force. But by the
I 6f 2 ^. 6? M. the Challenge of thirty-five
in Treafon^ or Petit I'reafony is reftored.
The principal Challenge is fo called, becaufc,
if found true, it is fufficient. And this prin-
cipal Challenge to the Poll was reduced to four
Heads, viz. Propter Honoris RefpeSlumj in
Refpe6t of Dignity ; as becaufe fuch a Perfon
was a Peer of the Realm, 6?r. Propter Be*
feSluntj for fome Defeft; as becaufe fuch.
a Perfon was an Alieny or a Minor, or had
not a Freehold, fcff . Propter Affe^um, as where
a Juror was of Kin to one of the Parties, or
had given a Verdift before in the fame Mat-
ter, or had been an Arbitrator, or had eat
and drank at one of the Party's Cofts, 6fr.
Propter DeliSum ; as when a Juror was out-
lawed, or excommunicated, or had been con-
vifted of Felony, &c.
of Battle; and fo to array the Jury is to order, or place
them in the Pannel ; and Pannel fignifies no more than a
little Part, as a Pannel of a Door, a Pannel of Wainfcot,
tffc, and when this is done, the Jury arc faid to be impan-
nellcd or arrayed,
* By Ufage and Cuftom, the Sheriff is obliged to return
24; however, in general, the Pantigl conisins the Namei
of 48 Jurors, who are fummoncd.
The
An JJiJioncal Treatife of a Suit at Law. 1 6f
The Verdillt fo called from Vere diffum,
quafi diSlum Feritatis, is the Judgment or
Opinion of the Jury on the Matter, which
they give in to the Judge, after having heard
the Cafe, and the Evidence thereon. This
they do by their Foreman, and it is then mi-
nuted down on the Record by the Judge's
A/fociate.
A VerdiSl is either general or fpecial. It is
faid to be general when it is delivered in like
general Words with the Iffue, as that the De-
fendant is Guilty or Not Guilty; or it is faid
to he /pecialy when they find fuch and fuch a
Thing to be done, declaring the Faffs as in
their Opinion are proved, and praying the
Judgment of the Court as to the Law upon
thofe Fafts.
Sometimes it happens, that Nobody appears
to make any Defence for the Defendant j he is
then called, and a VerdiSl is given of courfe
for the Plaintify with fuch Damages as he can
prove to have fuftained. . On the other Hand,
fometimes the Plaintiff don't appear ; he is
then faid to be nonfuited, and fuch Nonfuit is
recorded by the Affociatey at the Inftance of the
Defendant j and in this Cafe the Defendant is
now intitled to his Cofts, as he is on every
Nonfuit y where the Plaintiff wom\A have been
intitled to Cofts in cafe he had appeared. But
a Nonfuit is no Bar to a new Aftion : fo there
is a Difference between a Non/uit and a Re^-
traxit.
A Nonfuit is when the Plaintiff is called
upon by the Court, and don't appear i aitd a
Retraxit is when, the Plaintiff is in Court, and
declares he will not proceed in his Caufe any
M 3 furthers
1 66 An Hijlorical freatife of a Suit at Lav>.
further i in which Cafe the Adtion is barred
for ever.
Sometimes the Plaintiffs after he has entered
his Caufe, (which being called on, and a Jury
fworn) will come and withdraw his Record,
and thereby fufFer a Nonjuit \ but this don't
amount to a Retraxit. A Retraxit mult be
in Perfon, and not by Attorney.
A Plaintiffs when he finds himfclf not fuffi-
ciently prepared to go to Trial, (as in cafe a
material Witnejs fhould be wanting, or fomc
Matter to be given in Evidence is not obtained,
iSc!) will rather fufFer zNonJuit than hazard a
Trial; becaufe, Aould the Defendant obtain
aVerdift, (unlefs in Ejeftment) the Defendant
may plead it ih Bar to a new Aftion s but a
Nonfuity as is faid, is no Bar. ^ -
When the Jury have given their Verdift, or
the Plaintiff is nonjuitedy the Affociate records
the fame on the Back of the Record ; and if
the Caufe was tried at the Aflizes, after-
wards, ('y/z. four Days after the Day in Bank
in the next Term) he delivers the fame to
the Party in whofe Favour it is. But when
the Caufe is tried in Town, the Affociate
delivers the Record, with his Minutes only
of the Verdict or Nonjuity indorfed on the Back
of the^annel, immediately to the Attorney ; and
the Attorney records the Subftance thereof on the
Back of the Record. This is called the Pojiea^
and is the proper Inftruftions for entering up
the Judgment on the Iffue Roll. It is called
the Pojlea from the firft Word thereof, for it
tegan, Pojiea Die et LocOy ^c. It is the Sub-
ftance of what was done at the AJjizes or Nifi
friuss as is feen in the following Forms ;
%
An Wftorical Treatije of a Suit at Law. 1 6y
a PoSea at tge a(n?e£( fot m piafn*
ttff, ttidece tlje Detennant malte? De-
fault f ft tDe jl^UtjQc'0 13eHC[)v
* Afterwards y f ^^ ^i»^ D/?y ^»^ at the Place
within contained before Sir M. F. Knight ^ one
9f the Jujtices of our Lord the King of the
Menchy a^nd / Efq-^ one
of the Barons of the Exchequer of our f aid Lord
the King^ Juftices of our faid Lord the King
affmed to take the Affizes in the faid County
"(p/ B. according to the Form of the Statute in
that Cafe made and provided-, the within^
named A. B. came by his Attorney within con*
tained^ and the within-named C. D- althouglr
Jolemnly demanded^ % came noty l/ut made De^
fault
• Afterwards^ that is, after the Return of the Fe*
nire, and the awarding the Diftringas or Habeas Cor*
fora*
f On the Day and at the Place nvitbin contained , fcTr. /. e.
on the Day of Nifi prius, and at the Place appointed for
holding the AfRzcs before, Wr. came, JsTr. at which Time
the Defendant is called to hear the Names of the Jurors
that are to pafs on the InqQe;ft,
% Came not, hut made Default. If the Defendant lays
nothing when the Pannel is called by way of Cballeuge to
the Poll or the Array^ the Court proceeds to fwear the
Jury ; and then it is fuggeftcd by the Entry of the Pofiea^
that the Defendant being foleronly called, came not, hut
made Default. Therefore it is ordered by the Court, that
the Jury be taken or are accepted of by the Court, through
his Default in not challenging them. This Default relates
to nothing more, for the Defendant and his Attorney might
be. there ready at the firft calling of the Caufe; and he
lofes no Advantage by fuch a fuppofed Default^ but that
M4 he
i6t An Hiftorical Treatj/e cf a Suit at Law.
fault, therefore let the Jurors of tht Jury
within mentioned he taken againji him by De-
fault ; and the Jurors of that Jury being Jum-
moned came, who to fay the Truth of the
within Contents being chofen, tried andjwom^
fay upon their Oath, that the within-mentioned
Writing Obligatory is the Deed of the within-
named C. D. as the within-named A. B. has
within declared againji hint ; and they * ajfefs
the Damages of the within-named A. B. iy
Occafton of the detaining that Debt, over and
above his Cojis and Charges by him about bis
Suit in this Behalf , expenaed, to
and for thofe CoJls to forty Shillings. .
he cannot challenge any of the Jurrtrs after they are
fworn. It notwithilanding founds very ftrange to hear
it alledged that the Defendant came not, hut made Dt*
fault, on being called, though he was there, and made
none ; and that, before a Word about the Jury is ipoke*
It feems the AJfociate and Cryer take each a Fee for
fuch fupfofed Default, and therefore it may be fuppofed
to be thus drawn up to warrant fuch Fee,
* And they ajfefs the Damages, \3e. Where the
Plaintiff prevails, the Jury always find fome Damages
that he has fuftained, (or elfe he is nonfuited) which
intitles him to his Cofts of Suit ; fuch Damages are
more or lefs, as they fee Caufe for it. A Femrf
Damages, in fome Cafes, intitles him to Coils ; but
in fome others he fhall have no more Cofts than
Damages, \$c. At Common Law there was neither
Damages nor Cofts, but if the Plaintiff" did not pre-»
vail, he was amerced pro falfo Clamor e-, and if he
did prevail, then the Defendant was in Miferitordia^
' for his unjuft Detention of the PlaintiiPs Right, And
thus it ftood till the Statute of Gloucefier, Anno 6 £,
1. 1278, whereby Damages and Cofts, \$c^ are gi^
yenf
M I^^mcal freati/e of a Suit at Law, 1^9
lf)t poffea, Mm fn tTofon, foe t^e
ilatntfff, on Defoult, fn tDe l&fng'ii
>enct),
9
ifterwards^ that is to /ay, on the Day and at
the Place within contained, before Sir Wil-
liam Lcc, Knigbty the Chief Juftice within
named, Thomas Owen^ Gentleman, being af-^
Jociated unto the faid Chief Juftice, by Force
of the Statute in that Cafe made and provided,
the within-named A. B. came by his Attorney
within-contained I and the within-named C. D.
although folemnly demanded, came not, but made
Default. Therefore let the Jurors^ (^c. as
above*
2L Pottea at tlie afff^ejat foe m pafntfff,
on Bon affumpatt fn t^e Comrnon
peasi.
'Afterwards, on the Day and at the Place with-
in contained, the within-named A. B. iy his
Attorney within-named, came before Sir John
Willcs, Knight^ Chief Juftice of our Sove^
reign Lordthe^ King of his Common Bench, and
Sir ' Knight, one of his
Jaid Majeftfs Juftices of the faid Common
Bench, Juftices of our faid Sovereign Lord the
King appointed to hold the AJfizes for the
County of B. and the within-named C. D.
although folemnly required, came not there, but
made Default. Therefore let the Jury, whereof
Mention is within made, be accepted of againft
him by his Default} whereupon the Jurors
fummoned
t70 Ah Hiftorical *Treati/e of a Suit at Latffi
fummoned to be upon that Jury came to Je-
dare the Truth of the within Contents^ and
heing ehofen^ triedj and fwofn, fay upon their
Oaths J that the faid CD. did undertake in
Manner and Form as the faid A..B. mthin
complains againfi him^ and they affefs the faid
A. B. his Damages occa/ioned iy the faid with-
in Contents^ lefties his Expences and Cofts laid
^t by htm^in this Behalf to Pounds^
and for his Expences and Cojls to forty Shil-
' lin^Sn
% l^ffea in Cofmr* to t^e Common
peas, tp Default.
Afterwards^ the Day and Place within contained^
before Sir Charles Pratt, Knight^ Chief Juf^
tice within written^ having
Gentleman^ for his JJjociate^ according to the
Force of the Statute in fuch Cafe ntade and
provided^ comet h the witbin^named A. B. bj
bis Attorney within contained \ and the within-
written C. D. although folemnly. called^ cometb
not. Therefore let the Jury^ i^c. as above.
a ]^oSea fD^ete t^e Defennant appear?.
Afterwards^ at the Day and Place^ tic. come
as well the within-named A. B. oi the within
written C. D by their Attornies within con^
tained^ and the Jurors of the Jury^ whereof
Mention is within madCj being fummoned^ came
to declare the Truth of the Matter within
contained \ and being cbofen^ tried^ and fwcrn
upon their Qaths^ fay^ that^ (ic.
foe
An Hiftorical Treati/e of a Suit at Law. 17 1
ifoc tde pafntm, on Mi tiebet.
— y&y upon their Oaibsj that the within-^
named C. D. dotb owe to the witbin-named
A. B. the 30 1. witbin mentioned^ in Manner
and Form as tbe faid A. B. witbin comflaini
againft bim ; and tbey ajfefs, (^c.
foe tDe pafntfff, fn Crerpafn.
fay upon tbeir OathSy tbat the witbin^
named C. D. is guilty of the Premiffes within*
laid to bis Charge^ in Manner and Form as the
faid A. B. witbin complains againft bim ; and
tbey affefs the Damages of tbe faid A. B. by
Occafion thereof^ over and above bis Cojis and
Charges^ &c.
jFoc t^e piafntfff, in CfeSment.
. » ■ fay upon their Oaths^ that tbe faid C. D.
is guilty of the Trefpafs and ]Eje£lmeni within'-
written^ in Manner and Form as the faid
A. B. within complains thereof againfl bimi
and they ajfefs the Damages of tbe faid A. by
Occafion thereof^ over and above^ &ff .
3!n CieSmettt, ^ufltp ad to part; l^ot
gufltp ajs to t()e Eefinue.
As to the Trefpafs and EjeSment of one
Moiety of the witbin-^written Tenements^ they
fay upon their Oatbs^ tbat tbe faid C. D. //
guilty
I
172 An tTtfiorical freattfe of a Suit at Lav).
guilty thereof as the faid A. B. within com"
plains againft him ; and they ajfejsj isfc. as
before, jind as to the Trefpafs and EjeStment
of the other Moiety of the Tenements within-'
* written^ the faid Jurors fay upon their Oaths^
that the faid C. D. is not guilty thtreof as
the faid A. B. has within by Pleading alUdged.
Therefore^ fcfr. Sec Judgment.
JFot t^e paftttfff on an StflTue of piene
aomfnfataDlt, m tde Mm'^ OBenci).
1
■ ■ fay upon their Oaths y that the faid C. D.
bath^ and on the Day of exhibiting the Bill of
the faid A. within-written^ to wit^ on the
Day of in the
Tear of the Reign of our Sovereign Lord the
frefent King^ had divers Goods and Chattels
which were of the faid F. at the Time of his
Death in her Hands to be adminiftredy to the
Value of the Debt within fpecified^ whereof
fbe might have made SatisfaSion to the faid
A. for his faid Debt^ to witj at W. within
contained^ in the County aforefaid\ and they
cffefs the Damages of the faid A. by Occafion
thereof beftdes his Expences and Cofis by bim^
^Cn Vide antea.
In the Common Pleas in this, you fay. On the
j D^ offuing out the Original fVrit of^ fcf r.
iFoc tge Defentiatit, on Bot gufltp fit
€refpaf0.
<
'fay upon their Oatbs^ that the faid C. D.
is not guilty of the Trefpafs in the Declaration
within
An IRJiorical ^reatife of a Suit at Law. 173
within fpecifiedy as the /aid C. bath iy bis
Pleading within alledged. Therefore^
£Dne Defennant gttfltp f n CterpafjeF,
ot&eris not.
fay upon their Oaths^ that the /aid C. D.
is guilty of the Trefpafs witbin-written^ as the
faid A. B« within complains thereof againji
him J and they ajfefs Damages j fcf f . And the
Jaid Jury further upon their faid Oaths fay y that
the faid E. F. and G. H. are not guilty of
that trefpafs as the faid E. F. and G. H.
within by pleading for themfelves have altedged.
Jbereforey £sfr.
iToc Defentiant, an €jcecutor, tliat gfji
Ceilatot jQonalTumpfit
fay upon their Oaths^ that the within^-
named C. D. (the Teftator) did not, in bis
Ufe-time^ undertake in Manner and Form
as the faid A. B, bath within declared^ i^c.
Part far pafntff, part for Defendant,
on an aiTumpat.
— — As to the firft and lafi Promifes in the lOe-
claration within mentioned^ they fay upon their
Oathsy that the faid Q. D. under took^ in Man^
ner and Form as the faid A. B. within com*
plains againfl bim\ and they affefs the Dama-
ges of the faid A. B. by Occajion thereof y over
^nd
'74 An Wftoricdl l^reatijt of a Suit at Lafo^
and above Us Cofis and Charges by him abcut
bis Suit in this Behalf expended^ to
Pounds^ and for tbofe Cofts and Charges ta
40 s. Jnd as to the Reftdue of the Promifes
and Undertakings in the faid Declarations alfo
within mentioned^ the faid Jurors further up-
on their Oaths fay^ that the faid C. D. did not
undertake^ in Manner and Form, as the faid
C. D. within^ by pleading for bimfelf has
. aUedged. therefore, (Sc.
foe tlje Defeniiant, fn CreQjafjf, on tje
statute of Lfmftatfottis pieaoen.
fay upon their Oaths, that the faid C. D.
did noty at any Time within fix Tears next
before the fuing out the faid Writ, break and
enter the Houfe of the faid A. nor take and
carry away the Goods and Chattels of the faid
A. within contained, as the faid C. has within
by pleading alledged.
Wiz Cntrp, tDSete tlie pafntfff \$
itonp20!5'o^
' And the Jurors of that Jury being fum-
monedj came-, who, to fay the Truth of the
within Contents, were chofen, tried and fwom,
and after Evidence being gifoen to them, of
and upon the within contained, went from the
Bar of this Court to difcourfe of their Verdiff
of and upon the Premises ; and after the faid
Jury had difcourfed and agreed among them*
felves, they came back to the faid Bar to give
their VerdiSl in this Behalf \ upon which the
faid
An Utftorical ^reatife of a Suit at Law. 175
faid A. B. being folemnly required came not^
nor did be further profecute bis faid Bill againfi
tbefaid C. D. Therefore^ (£c.
In the Common Pleas^ Nor did furtber fro^
feme bis faid Writ.
> • Were cbofen^ tried and fworn^ to declare
the Truth of the within Contents^ whereupon
for certain Caufes moving as well the faid
Juftices as the Parties^ £• F. one of the Jurors
4ff the within-mentioned Jury was withdrawn
from the Pannel\ and the Reftdue of the Ju-
rors of that Jury are intirely difcharged from
giving any VerdiSl of and concerning the wiib-
in-mentioned Premiffes^ fefr.
By thefe are fcen, in general the Forms of
the Pofiea*Sy either for Plaintiff or Defendant^
They are drawn up in fuch general Words, as
the Iffue^ to which they relate are worded, and
may be with or without the Defendant's De-
fault. They are afterwards continued on the
Iffue Roll J for they are the Inftruftions for en-
tering up the Judgment thereon, which af-
terwards obtain the Name of the Judgment
RoUj as fee poft. by which we fhall fee the
. Reafon of the formal Beginning of the Poftea.
Though by the lace Adt there are now fcarce
any Want of common Jurors, yet it may be
proper to add a Poftea with a Tales , to fee the
Form thereof, as it may be wanted in fpecial
Juries.
1
i7^ An Hijidrhat freait/e of a Suit at Law,
a PoSea, fDftd a Calesf fft ^ofnlt.
Afterwardsy that is to fay^ on the D^ and at
the Place within mentioned^ before William
Lord Mansfield, the Chief Jujiice within
written^ there being ajfociated unto him T* 0*
Gentleman^ according to the Form of the Sta^
tute in that Cafe made and provided^ came the
witbin^named A. B. by his Attorney witUn
eontainedj and the within-named C. D. al-
though folemnly required^ came not^ but made
Default. Therefore let the Jury^ whereof
Mention is within made^ be accepted of again)
him through his Default \ and the Jurors of
that Jury being fummoned^ fome of them^ that
is to fay, E. F. G. H. I. K. (naming fuch
of them as appear,* and are fwqrn of the
Pannel) and becaufe the Reftdue of the Ju-
rors of the fame Jury do not appear j tberefm
other Perfons of thofe fianding by the Court,
by the Sheriff of the County aforefaid^ at, the
Requeft of the faid A. and by the Command of
the f aid Chief JuJUce, are now newly fet down,
whofe Names are affiled in the within-written
Pannel, according to the Form of the Statute
in that Cafe made and provided ; which faid
Jurors fo newly fet down^ that is to fay, L
, M. N. O. P. q1 i^c. (naming the Talcf-
men) being required, came-, who^ together
with the faid other Jurors before impannelUi
and [worn to declare the Truth of the within-
Contents, being eleSled, tried and fworn upon
their Oaths declare, that the faid C. D. did
not undertake in fuch Manner^ (^c. as before.
Though
An Hiftorical ^reatiji df a Suit at Laiv. 177
Though it Is faid that the late Aft has ren-
dered the Tales de Circumftaniibus almoft ufe-
lefs, it is fpoken with refpeft to common Ju-
ries ; but where there is a fpecial Jury, it does
not always happen that 1 1 out of the 24 do
appear ; in which Cafe it is common to take
fome from out of the common Jury to add to
the Pannel of the fpecial Jnry to make up the
Number -, and in fuch a Cale thefe common
Jurymen are confidered aa Tales-men^ viz.
9 polfea at tfie affile?, toftli a Caleief.
Afierwardsj (that is to fay) on the Day, in tb^
Tear^ and at the Place within mentioned^ com^
as well the within-named J, B. Efq\ as tb^
within-named W. R. by their Attornies with-
in-named, before Sir Michael Fpfter, Knights
one of the Jujlices of our Lord the King af-
figned to hold Pleas before the King himfelf^
and Sir Sidney Stafford Smythe, Knight^ one
of the Barons of our faid Lord the King of his
" Court of Exchequer, his Alajejlfs Juftices af-
Jtgned to hold the Affixes for the within- written
County of B. according to the Form of the Sta^
tute^ i^c. And certain of the Jurors of . tbe
jfury, whereof Mention is within- made, fum^-
moned to be upon that Jury (that is to fay)
Sir T. H. Knight, J. E. H. H. J. T. and
W. B. EfquirCy come and on that Jury are
fworn ; and becaufe the Refl of the Jurors of
that Jury do not appear, the^'efore feven other
Perfons of the By-fianders, being by the She-^
riff within written hereunto eleSed at the Re-
qut'Jl of tbe faid J. a*^d by the Command of tbe
N Jaid
17 S An Hiftorical ^featife of a Stdt at Law.
faidSir Michael Foftcr, are now newly fet iawn^
Vib§fe names are affiled in the within-written
Panned according to the Form of the Statute^
&c. and which /aid Jurors^ Jo newly fei down^
{that is to fay) C. G. R, B. F. P. J. W,
T. P. J. W. and J. L. Gentlemen^ being re^
quired^ come likezvife^ and together with the
faid other Jurors before impannelled, being tried
and fworn to fpeak the Truth of the Matters
within containedy upon their Oaths Jay that
the faid W. does owe to the faid J. the Jum of
500 1. fpecified in the firft Count oj the within
Declaration^ being Parcel of the within-men*
tioned Sum of 1000 1. in Manner and Form as
the Jaid J. hath within thereof complained
againft the faid W, And they ajfejs the Da*
mages of the faid J. by Reafon thereof^ bejides
his Cofts and Charges by him about his Suit
in this Behalf laid out and expended^ to one
Shillings and for bis faid Cejls and Charges to
forty Shillings, And the Jurors aforejaid
upon their faid Oaths further fay^ that as to
the Rejtdue of the faid Jum of looo'l. the faid
W. does not owe the fame^ or any Part there-
of y to the faid J. as the Jaid W. bath in
pleading within alledged.
N. B. This Aftion was for Bribery at the Elec-
tion of a Member for Abingdon in Com. Berks.
therefore it is conjidered that the faid J. 6. do
recover againfi the faid W. R. his faid Debt
and Datnages by the Jaid Jury in Form afore-
Jaid ajfejfed^ and alfo 1, for bis Jaid Cofis
and
An Hiftoricat Treatif^ of a Suit at Law^ 179
and Charges, hy the Court of our faid Lord tit
King^ now here^ adjudged of Increafe to the
faid J. by bis JJfenty which Damages in the
whole amount to fix hundred^ fc?r. Pounds i
and the faid William in Mercys Csfr
The Pojiea htin^ ingroffed on the, Back of
the Record^ the Party intitled to it, on the
Day in Bank^ (or afterwards) gives a Rule on
the Pdjiea m the Kings , Bench ^ called a Rule,
for Judgnicnx> which Rule is out in four Days,
cxclufivc after the giving it. .But till this ^ul?
is expired, final Judgment cannot be Jigjied^
TliQic four Days are allowed for the other Par-
ty to move in Arreft of the. Judgment, . or /or
a new Trial ; or he may bring a Writ ofError^
And though no fuch Rule is given in the Com^
mon Pleasy yet the fame Tirne is allow.ed there
for the fame Purpofes ; andjf hothingls il^nc
to avoid the Judgaient, then the Party, having
got the Pojiea uamped with a double Kfal^
crown Stamp, carries the fame to the proper
Officer, th«t k, the Maji^, or Secondary of the
King^s BencH OPUce, or the Protbonotary in tlie
Common Pleas^ to tax his Cofts thereon. . This
is called figning the /»^/ Judgment, and tfie
Cofts are called Cofts h incremento^ or increafed.
Cofts.
» •
. . Of CoftjSl.
■
It has been obferved, that tliere was no fuch
Thing as Cofts at Commbn. Law, but that, if
the Plaintiff did not prevail, he was amerced for
hhfalfe Claim ; and if he did prevail, the De-
fendant was' /i^ Miferfcordid, for his unjirft
N 2 Detention
tSo An Uifiorical ^reatife of a Smt at tuiw*
Detention of the PlaintiflTs Right. It was
called in Mijericordia^ becaufe the Amercia-
ment to be impofcd was to be but fmall,
and rather lefs than the Offence, according to
Magna Chart a ^ c. 14.
Thefe Amerciaments were then inftead ofCqfts;
and .though the Ufc is gone, the Term ftill rc-
^ mains, for where the Plaintiff or Defendant
in the Aftion fails, the Entry of the Judgment
is ftill Ideo in Mifericordia^ ^c. But as this
made no Amends to the Plaintiff for the Cofts
he had been out of Pocket, the Statute of Glou-
cefier 6 Ed. \. c. i . was made, whereby if any
P erf on recovered Damages in a Flea perfonal or
mixed ^ he jhould have his Cofts. This is faid to
be the Original of Cofts de incrementOy for then
the Damages were found by the Jury ; and the
Court,, inftead of Amerciaments, ufed to tax
the moderate Fees of Counfel and Attornies.
Thus it ftood for the Plaintiff, until the 43 El.
c, 6. whereby, if the Plaintiff did not recover in
a perfonal Aftion (not concerning Freehold nor
Affault and Battery) 40 s. he fhould have no
more Cofts than Damages, unlefs, fc?r. The
feveral Statutes relating to Cofts and Damages
are the 6 Ed. i. c. i. 6 Ed. 2. c 14. 3. U.
7. c. 10. 23 H. %. c. 15. 8 El. c. 2. 18 EL
c. t$. 43 El. c. 6. 4 Ja. I. c. 3. 7 Ja. i.
c. 5. 21 Ja. I. c. 16. 13 Car. 2. c. 2. 22
6? 23 Car. 2. r. 9. ^ ^ 6 fT.^ M. c. 12.
8 &f 9 ^. 3. f. lo. II &f 12 ^/j. c. 9.
4 tf 5 Ann. c. 16, i£c»
The awarding of Cofls was always difcre-
tionary in the Court, and formerlj^ ' the Tmfm
Judge of the Court ufed to allow the Cofls^ and
make zPpecial Rule for the Payment of them;
upon the Service whereof, and Refufal of
Pay-
An Hijlorical freatife of a Suit at Law. i8i
Payment, an Attachment ufed to iflue. But
now it is become the Courfe of the Courts to
refer the taxing of the Cofts to the Secondary and
Prortbonotariesy and not to make any Jpecial
Rules for fuch Matters. And thefe Officers
have a difcretionary Power to allow what is
rcafonable, and difallow what is not fo; for
fuch Cofts are only to be allowed as have ne—
ceffarily occurred in the Profecution, or where
one of the Parties has caufed the other to have
been at extraordinary Charges. And there-
fore it has been held that Cofts ought not to
be paid for the putting off a Trial, where no
Fault was in the Party againft whom it was
moved. In like Manner, no Cofts ftiould be
allowed for unreafonable Motions, nor for ex-
traordinary Fees to Counfel, as retaining Fees,
fcfr. nor extraordinary Expences on Witneffes
at the Trial, nor paying them beyond what is
ufually allowed for their Attendance, i^c. but;
for fuch Expences only as the Party wa^ ne-
ceffarily put to in the Profecution of the Suit.
And hence arifes the Difference in Coftis be*
twcen Party and Party, and Cofts between the
Attorney and his Client.
When the Cofts on the P^ftea are taxed,
(which is moft frequently done on an Affidavit
of the increafed Cofts) final Judgment is then
faid to be figned, and is then ready to be en*
tercd up on the RolL
fl)f entetfnff up aiiUffment on tlie Eoll
in tlje i^mff 'Benclj*
It has been obferved before, that the fecond
PJacita in the Record for Trial, was a general
Nj E;ntrjr
ift*i /fo Hiftorlcal tnatlje of a Suit at haw.
Entry made ufe of to fiipply the Continuances
of the Venire^ even to that Term mentioned in
, that PlacitUy (which was the Term of Trial)
and ferved to ihew the Court that the Iffue
w;is continued to the laft Term. It was like-
wife a Warrant to the Officer to continue the
Venire until then, when he came to enter up
the Judgment on the Iffue Roll. And this
introduced the general formal Beginning with
Poftea . Continuato inde Procejfu^ in entering up
the Judgment, viz.
-*— - Tht Iffue ends with, The fame Day is
given to the Parties aforefaid at the fame
Pldcey then they go on vf\t\i*^ jifterwards the
Procefs' thereof being continued between the
Parties aforefaid^ of the Plea aforefaid^ by the
: Jufy aforefaid^ being refpited between them
before our Lord the King at Weftminfter,
until next after (the
Return of the Bijiringas) % unlefs the Juftices
of our Lord the King, affigned to take the
^flizes in the County aforefaid^ Jhallfirji come
on the Day of at
R. in the faid County of B. according to the
Form of the Statute in fuch Cafe made and
• f'rovidedy f for Default of the Jurors, becaufe
; ♦. Afterwards th$ Pr9ce/s, i^c, that is, the Writ of
Vanre* »
X If the Caufe is tried in Town, it is, Unle/s the Kin^^
right trufty and ivell-belo'ved William Lord Mansfield, bis
Majeftfs Chief Juftice ajjigned to hold fleas before the King
himfelf, Jhallfirji come on the ^^yjf ^
the Guildhall of the 1C$ty of London, er *Weftminftcr-hall,
tff. And then alfo -^
And the faid Chief Jufice Before ijohom, (s'c. fent hither
bis Record^ ^c.
t For Default of the Jurors^ faTr, This is only a Recital
of Part of the Awaitl of the Dijlringas^ grounded on a fop^
}K>fed Pefault of the ^xxraii not coming on the Venire*
^ nm
An mjlorical Treati/e of a Suit at Law. l8j
none of them did appear^ if at which Day
before our Lord the King at Weftminftcr the
aforefaid A. B. comes by the faid R, B.
his Attorney aforefaid \ and the faid Jujiices
of our faid Lord the King, before whom, tfr •
fent hither their Record had in thefe JVords^
to wit. Afterwards, that is to fay, on the \ Hay
^nd at the Place within contained before — —
(here comes in the Pojlea, vtrbatim j after
which follows the Judgment.) therefore if
is conjidered that the faid A. B. recover againft
the faid C D. his faid Damages, by the faid
Jury in Form aforefaid affejed*, and alfo
(the Cofts de incremento) for bis faid Cofis
and Charges, by the Court of our faid Lord
the King now here adjudged of Increafe to
the faid A. B. with his Affent, which Dar
mages in the whole amount to
And the faid C. in Mercy, &?r.
If what is before alledged be confidered, that
is, that anciently the Court of King's Bench
had fo little to do in Civil Adlions, that they
had not Bufinefs to fit the whole Term, de Die
in Diem, but adjourned from one Day to an-
other, in* the fame Term, and gave a Day to
the Parties to be prefent when they did fit.
If this, I fay, be confidered, there will fome
Reafon appear for the Ufe of a fecond Placita,
though the Caufe was tried the fame Term that
the Iflue was joined; and likewife for their
beginning the Entry of the Judgment on the
Roll with Poftea Continuato inde Proceffu, &fr.
X At nuhicb Day^ l^c. That is, on the Returu of the
Dijtringas,
II On the Day and at the Place, lie. The Day and Place of
JVj/f^jr/mcntiontdin they«r«f, or AwzrdofiiitDtfinngas.
N4 But
1 14 jfn Hifiorical Treatife of a Suit at Law.
But at prcfent they both fecm, not only un-
neceffary, but very incoherent j for this Form
is now ufed when there is no Continuance at
all, as when the Caufe is tried the fame Term
the IJfue is joined, in which Cafe the Venire is
returned in the fame Term, on which very
Return Day the Diftringas is tefted. Where
then i^ any Continuance of the Procefs ?
When the Caufe is not tried the fame Term
thelfTue is joined, then the firft Venire, awarded
by the IfTuc, is continued by Vicecomes non mifit
Breve; and So on in like Manner, from Term
to Term, until the Bijiringas iflues ; and the
laft Venire \% continued, as before, by Pojiea
ContinudtOj &c. thus :
- ■ ■ the fame Day is given to the Parties afore^
/aid at the fame Place; * at which Day
before our Lord the King at Weftmihfter
came the Parties aforefaid^ hy their Attornies
af ore/aid^ and the Sheriff of Berks did not
return the faid fVrit, nor did they do any
Thing thereupon ; therefore let a Jury come
thereupon before our Lord the King at Weft-
xninfter, on next after
(fome Return in the Term next after that the
frfi Writ was returnable in) who are in no
wife of Kin either to the faid A. p, or to the faid
C. D. to take Cognizance upon their Oath of
the whole Truth of the Premifes^ hecaufe as
well the faid C. D. as the faid A . have put
themfehes upon that Jury ; the fame Day is
given to the Parties aforefaid at the fame
Place, (if there is to be other Continuances
to other Terms, begin again for each) at
which Day before our Lord the King at Weft*
minftcr came the Parties aforefaid, by their
* Jt i^bicb Dajt (Sfc, i. ^t on the Return Day o£iheFenire.
Attomies
An Uifiinical Ttreatije of a Suit at Law. 185
AttorniiS afarefaid^ and the faid Sheriff of B.
did not return the faid Writ^ nor did tbey
do any thing thereupon ; therefore^ as before^
let a Jury come^ i^c. (to ihe next Tcrrn^ and
fo on from Term to Term, to that wherein
the Diftringas is returnable.) Afterwards the
Procefs being continued between the Parties
aforefaid of the Plea afore/aid^ by the Jury
being refpited between them^ before our Lord
the King at Weftminfter, until
next after unlefs bis
Majejlfs Jufiices ajjjigned to hold the Affizts
in the County aforefaid jbould firft come om
Saturday the Day of
at R. in the faid Count )\ according to the
Form of the Statute in fuch Cafe made and
provided^ for Default of the Jurors^ becaufe
none of them did appear ; at which Day be^
fore our Lord the King at Weftminfter the
aforefaid A. B. comes by the faid R, B. his
Attorney^ and his faid Majefly^s Jufiices be-
fore whom^ fcf r. fent hither their Record had
in thefe fVords^ to wit, After^ards^ that is
to fay , on the Day and in the Tear^ and at
the Place ^ i^c. (the Poftea verbatim) there--
fore it is conjidered^ fcf^.
2>f tlje Cntrp of tOe JuHument on Vaz
Roll in t|)e Common pieaief.
The Entry of the Judgment on the Roll in
the Common Pleas differs in Form from that in
the King^s Benchy though it is the fame in Sub-
ftance. The Reafon of this Difference is, that
in the Common Pleas they allow no Continuance
of the Procefs, when the Caufe Is tried the
fame Term the Iffuc is joined, and for the
fame
iS6 An Hiftorical ^reatife $fa Suit at Law*
fame Rcafon they ufe no fccond Placita ; there-
fore, inftead of Poftea Continuato itide Proceffu^
after the Clofe of the liTue, they begin more
properly thus : '
At which Day (i. e. the Return Day of the
Venire) the Jury between the Parties afore-
faid^ in the Plea aforefaid^ was refpited there-
upon between them here until the Morrow of
AH Souls, (i. e. the Return of the Habeas
Corpora) then next following^ unlefs the Juf-
tices of our Sovereign Lord the King affigned
to take the Afftzes in the County af ore/aid by
Form of the Statute^ 6?r. fhould firjl come on
the Day of
then next paflj at A. in the County aforeJaid\
and now here at this Day^ (/. e. the Return
Day of the Habeas Corpora above) tbg faid
A. B. comes by bis Attorney aforefaid^ and the
/aid Juflices of Affxze before wbom^ 6fr. fent
here their Record in thefe Words: After^
wardsy that is to fay^ on the Day^ Csfr. (the
Pojiea verbatim) therefore it is conjldered that
the fat d A. do recover his faid Damages a^ainfi
the faid C. to Pounds ajfeffed by the
faid Jury in Form aforefaid ; and alfo
Pounds adjudged by the Court here to the faid
A. at bis Requeft of Increafefor bis faid Cofis
and Damages \ which faid Damages in the
whole amount to Pounds^ and
the faid C. in Mercy ^ &ff.
But if the Caufe is not tried the Term Iffuc
is joined, then is added a fecond Placita -, and
the firft Fenire is continued by Vicecomes non
mifit Breve only : after which Continuance they
begin as above. At which Day the Jurj^ ^c.
without
An Hifiorical TCre^tiJe of a Suit at Law. . 1 87^
without ever any Pojiea ContinuatOy C^c. for
that would feem to be a Continuance upon a
Continuance.
The Queftion is, If the Refpite of the Jury
is a Continuance of the Procefs, to give fonie
Colour for the Entry by Pojtea Continuato,
^c. in the Kin^s Bench ? If not, we muft
nave Recourfe to the former Reafon afTigned
for this Entry, viz. that Continuances in the
Kin^s Bench were from one Day to another,
in the fame Term; which Reafon will not
hold good at this Day, the Continuances being -
ffom Term to Term only.
The Entry of the Judgment varies, accord-
ing to the Jgdgment that is given, of which
the Books of Praftice are fufficiently fulL
However, two Things may be here obferved,
as they are prefumcd to have been ufed before
any Cofts were given by the Judgment, ac-
cording to the Stat. 6 £. i. viz. the amercing
the Plaintiff for his falje Claim \ and the De-
fendant for his unjufi Detention of the Plain-
tiff's Right, £^^. In regard to the firft, where
the Defendant prevails, the Entry of the Judg-
ment againft the Plaintiff is ftill thus in the
Kin£s Bench:
therefore it is corjidered thai the /aid A. take no*
thing by his faid BilK hut that he be in Mercy
of the Court for his falfe Clamour^ and that
the faid C. go thereof without Day\ * and ii
is further conjidered that the faid C. recover
againft the jaid A • Poundi for bis
Cofls and Charges laid cut by him about bis
* This b an Addition to tbe former Ttidgment, fiace
the Statute gave Colls,
Defend
1 88 An mjloricdl Treati/e of a Suit at Law.
Defence in this Behalf adjudged to the faid C.
by the Court of our faid Lord the King now
here by bis own j4jfent^ according to the Sta»
tute in fucb Cafe made and provided^ and that
the faid C. have Execution thereof.
3[n t|)e Common pea^.
therefore it is confidered that the faid A. take
nothing by his faid fFrit^ hut be in Mercy for
bis falfe Clamour thereupon ; and that the faid
• See Not# C. go thereof without Day^ * C^c. Jlfo it
Pa^r^''"'^ /j confidered, fsfr.
Sometimes, as in Repleven, &?^. it is, That
the faid A. and bis Pledges for profecutingy are
in Mercy y fcfr.
In Regard to the fecond, that is, amercing
the Defendanty vft have fcen before the Judg-
ments with refpeft to it. But in all Aftions
in both Courts that were Vi et Armisy the Judg-
ment againft him was with a Capiatur, And that
the faid C. he takeny 6fr. inftead of in miferi--
eordiay becaufe in this Cafe there was a Fine
due to the King ; and therefore the Judgment
was to be diftinguiftied on every Roll by put-
ting the Word Mi'ay or Capiatur in the Mar-
gin, as is fuppofed for the more ready finding
the Capiatur Finesy in prder to coUeft them.
Before the Stat. i6 &f 17 Car. 2. the not en-
tering the Words Mi'a, or Capiatur, or put-
ting one for the other, was Matter of Error.
To all Fines Imprifonment was incident;
and therefore in Aftions Vi et Armisy where a
Fine was to be fet, the Judgment was, ^od
Defendens Capiatur, that is, Capiatur quoufque
Finem fecerit. But now by the 4 &? 5 TV. (3
M*
\
An ISfiorical ^natife of a Sidt at Law. 18^
M. Capiatur Fines in A&ions Vi et Armis arc
faid to be taken away, and no Judgment ought
to be entered with a Capiatur. However, the
common Form ftill continues. And that the
faid C. be taken, fcrr. though there be no Fine
fet by the Court i the Reafon of which is, that
inftead thereof, the Plaintiff, upon figning the
final Judgment in fuch Actions, is to pay to the
Officer 6s. id. in lieu of the Fine, which
6 s. id. is to be allowed the Plaintiff again in
the Cods. And 'tis faid, in the Common Pleas
they enter the Judgments with Nihil de Fine
quia remittitur per 6tat\ So that by this Sta-
tute a Fine of 6 j. 8 d. inftead of being taken
away, is rather rendered certain, and to be
paid by the Plaintiff, inftead of the Defendant.
Whether the Plaintiff ever gets it again, is
another Thing !
The Capiatur Fine was for a Breach of the
public Peace, which every Aftion f^i et Armis
implies, and upon fuch a Record, Procefsof
Outlawry might iffue out of the Crown Office
againft the Defendant for the Fine, if not paid 5
but in Aftions upon the Cafe, &fr. where the
Plaintiff did not declare with a Fi et Armisy
there the Defendant was to be amerced only,
and not taken and imprifoned. And this was
the Reafon of the Difference in the Entries of
the Judgments.
Thus much is faid to (hew to what the for-
mal Parts of the Judgments relate only j to
which much more might be added.
The Judgment itfclf is faid to be the Voice
of the Law. And therefore Judicium femper
pro Veritate accipitur s and the ancient Words
thereof
i6^ An Ktfiorical ^reatije of a Suit at Law.
thereof arc very fignificant, viz. Confideratum
ejly &c. thereby implying that the Judgment
was given by the Court, upon due Confidcra-
tion of the Matter before them. And yet,
before the Statute of Jeofails^ and the 4 £*? j
Ann^y to what a Number of Exceptions, and
vexatious Proceedings upon Writs of Error,
&fr. was a Judgment liable ? Efpecially for
Want of Form in the mod trifling, unneccflary,
and almoft infignificant Things imaginable,
viz. the Want of Fledges upon the Bill or
Original, the Omiflion of a Profert in Curia,
the OmilTion of f^i et Armisy or Contra Pacemj
or Hoc pnratus eft Verificarey the Want of CoK"
tinuances in the Pleadings, or in the Judg-
ments, &?r. &ff.
The only Thing to be obferved further on
* this Head, in order to contraft the Proceed-
ings, is this, whether a general Entry by Poftea
Contimiato inde Procejfuy ^c. in ^both Courts,
where the Caufe is not tried the fame Term
the IflTue is joined, but of fome fubfequent
Term, may not be fufficient of itfelf to con-
tinue the firft Procefs of VenirCy awarded at
the Clofe of the Iffue to the Term the 7«^-
ment thereon be given, (whether or no it be to
the next Term, or three or or four Terms after
Iffue is joined) and thereby fupply all thofc
Continuances by Vicecomes non mijit Breve i or
where by Motion in Arreft of Judgment y or Motion
for a new Trialy or by arguing 2ifpecial VerdiBy
l^c. there are intervening Terms j if not, it is
abfolutely neceffary every intervening Term
Ihould be particularly taken Notice of in the
Entry of the Judgment, or elfe there is an
Error in the Record \ which frequently hap-
. pens
^n Hiftcrical Treatije of a Suit ai Lat9. f 9l
pens for Want of fuch Entries, though no
Notice be taken of it.
-To clear up this Point, and to fhew that it
rnay^ let us fuppofe the Ventre to be to the only
Prdcefs for fummoning a Jury for a Trial.
This Venire is awarded at the Clofe of the IJfui
to be returnable the fame Term the IJfue is
joined ; for Inftance, in Hilary Term. Now
if the Caufe is tried upon this Writ with the
Mifi prius Claufe therein, it is tefted the firft
Day of that Term, and returnable the lafty or
feme Day after the Trial, if in Town i but if
for the Sittings after Term, qr for the Ajfizesy
it is tefted the lafi Day of that Term, and re-
turnable the firft of Eafter. And then the
Entry of the Judgment may be very properly
according to the Form ufed in the Common
Pleasy thus : And now here at this Day (i. e.
the Return Day of the Writ) the faid A. B.
comes by his Attorney aforejaidy and the Juflices
of AJJize before whomy &c. fent here their Re^
cord in thefe Words y Afterwards y that is to fay y
on the Day and at the Place within contained,
(sfc. (the Pofiea verbatim) therefore it is confix
deredy that—{o on with the Judgment. This
is Ihort and plain, and yet full and explicit.
But fuppofe the Caufe is to be tried of fome
Jubfequent Term, for Inftance, of Trinity Term,
then the Venire awarded at the Clofe of the
IJfue need not be made out, but only fuppofed
to have iffued, (as it is chiefly now) but a new
Venire made out for Trial tefted the firft of
trinity y and returnable the la^y or fome Day
after the Trial for Town Caufcs ; or tefted the
laji e?/ ^7>/»i/y,- and returnable the /r/? of Mi
chaelmas Term for the Affixes. In which Cafes
the firft Venire awarded at the Clofe of the
3 ip'
1 9a ^^ IS^orical I'reati/e of a Suit at Law.
IJfue may be continued by fuch a gtoeral Entry
as Pojiea Continuato inde frocejfuj i^c. in enter-
ing up the Judgment, viz. Afterwards the
Procejs being continued between the Parties afore-
Jaidy of the Plea aforefaidy until * (the Re-
turn of the Venire made out for the Trial)
at which Day the faid A. B. comes by his At-^
torney aforefaidy and the Juftice^y fcf r. Now if
fuch a general Entry may be allowed to be a
Continuance of the firft JVrit awarded in Hilary
Term, it will fupply all thofe Entries on the
Roll by Vicecomes non mijit Breve, &c. from
Term to Term, until the entering up of the
Judgment, in a very plain and fimple Man-
ner. And by this it is evident that the Writs
of Diftringas and Habeas Corpora may be well
fpared, and then of Confequence there will be
no Occafion for the Entry of the Jurat, on the
Record} and this, I prefume, will be agree-
able to the original Ufe of this Writ.
Though the Entry of the final Judgment oiv
the Roll is confidered here as the next Pro-
ceeding after Jigning the Judgment, yet this need
not be immediately done ; for upon figning the
Judgment, the Party intitled to the Benefit of
it may firil bring an Aftion on his Judgment,
or he may have an Execution for the Satisfac-
tion of his Damages, or Debt and Cofts, and
afterwards enter up his final Judgment to war-
rant fuch Adtion or Execution.
An Aftion is faid to be FruSlus et Finis
Legisy the Fruit and End of the Suit ; for, as
obferved before, the Execution doth begin af-
ter the Action or Suit is ended : and therefore
a Treatife of a Suit at Law ought to end
here
/tn Wfiortcal treatije of a Suit at Law. 153
here with the Judgment. But as there are fe-
veral Writs of Execution now in Ufe, it may
not be improper to take a flight View of them
before we conclude*
jiDf an Cjcecutfon.
An Execution is a judicial Writ, grounded
on the Judgment of the Court from whence it
iflues ; and is fuppofed to be granted by the
Court, at the Requeft of the Party at whofe
Suit it is, to give him Satisfaction on the Judg-
ment which he hath obtained. And therefore
an Execution cannot be fued out in one Court,
upon a Judgment obtained in another.
There are three Sorts of Executions com-
monly in Ufe at this Time, for the obtaining
Satisfaftion for a Debt, Damages, or Cofts
given by the Judgment, viz.
A Capias ad Satisfaciendum againft the Body
of the Defendant only ;
A Fieri facias againft the Goods and Chat-
tels of the Defendant only, and
An Elegit againft the Goods and Chattels,
(except Oxen and Beafts of the Plough) and
alfo one half of the Defendant's Lands, to hold
by the Plaintiff, until the Debt or Damages and
Cofls are fatisfied.
The Ca* Sa^ was given by the Statute of
MarlebridgCy c. 23. This Writ, by the Com-
mon Law, ifTued only in Trefpafs quare Vi et
Armis ; but by the Statute 25 Ed. 3. it may
iflUc in other Cafes, before which Time we
fee'^ow tender the Common Law was of rc-
ftraining a Man's Liberty. And now, indeed,
whenever the Body is taken by this Writ, the
O Plaintiff
I ^4 An Hiftorical Treatife of a Suit at Lmxr.
Plaint fF can have no other Execution againft
his Goods and Chattels, Lands or Teiiements ;
for as Corpus bumAnum non recipit JEJUmalio-
veniy fo it is deemed the grpateft and higheft
Satisfaftion one Man can have of another.
And hence, if a Man died in Cullody before
the 1 1 Jac. I . on this Writ, the Debt was pre-
fumed to be fatisfied;. but by this Statute,^*
24. where a Defendant dies in Cuftody on this '
Writ, the PlaintifF^ or his Executory and Ad-
miniftrators, by reviving the Judgment, may
have a new Execution agaiuft hU Lands or
Goods.
The Fr Fa* was the only Writ of Execu-
tion that lay at Common Law, and was after-
wards confirmed by the Statute of JVeftmbifter,
2. If this Writ iflues, and the Defendant has
not any Goods or Chattels, whereby the Debt
and Damages may be levied ; or if only Part
thereof be levied^ the Plaintiff at the Return
thereof may have another Writ of Execution,
either another Ft' Fa\ or a Ca* Sa\ or an Ekg^^
for further Satisfaction.
The Elegit was given by the Statute of Wefi-
minjler 2. c. 18. If upon this Writ only Goods
and Chattels be levied, and thofe not IqfiiQient
to fatisfy the PlaintifPs Debts and Damages,
the Plaintiff may have another Execution, either
a Ca' Sa\ or a FP Fa\ or another 'BUgify it be-
ing in Effeft but a Fi' Fa\ and the Law is very
defirous a Man fhoulct have a full Satisfa£tio5
on his Judgment.
And yet we can't but obferve one very
great Hardftiip that lies on the Plaintiff in ^{lis
Refped, and that is this: When a Plauitiff
has obtained a Judgment fof a Debt in C^fci
{£c. on a Trial or Writ of Inquiry, the Coftl
allowed
An Hifimcal Treatife of a SuU ai Law^ 19^
allowed oni figning final Judgment arij up to
that Time only> and the Cafts of an Execu*
tion, and levying the DebtPand Cofts^ are not
coQfidered. Therefore, if the Piaimiff take$
aut an Execution, the Cqfis thereof with the
Sh^riff^s Warrant, the Officer's Fee for taking
the Defendant, or taking and keeping Pofief-
Hon of his Goods, the Appraifement and In-
v^ntQiy, ^ Bill of Sajbc, and the. SherifFs
Fouod^e, muA be aU paid out of the Plaia*
tifi^s Debt ;. and this, may anv>ujayt to 40 s. at
the laft, and oftener to 3 or 4/. which is a
great deal out of a Debt of 5 or 6 /. or out of
aol. and muft give great Diffatisfaftion to a
Suitor.
'Tis hard enough for a Man to be forced to
take any Remedy at all for a juft Debt, and
how much more fo, if after he has obtained
a Judgment for his Debt and Cofts, as he ima-
gines, he is ftill to be put to this further Ex-
pence ? / have recovered my "Debts and^ojls by
a Judgment of the Courts and yet am Jo much
cut of Pocket A
The Reafon, as prefumed, why this is not
confidered, and allowed for in Cofts, on fign-
ing the final Judgment, is, becaufe the Court
don't know what Remedy the Plaintiff^ will
take on his Judgment ; as inftead of an Execu-
tion he may chufe to bring an Aftion on it,
and then only he can recover his Cofts with-
out fuch Expence. But even then, the Re-
medy is often worfe than the Difeafe 5 for if
the Defendant can't pay the Cofts of one Suit,
how can it be expedled he fhould pay the Cofts
of two ?
V
O a ' The
1^6 -^ Hijlorical treatije of a Suit at Law.
The Hardftiip is the fame on a Defendant,
where he prevails. But in order to remedy
this, it is a Pity thlit the Party is not at Li-
berty to make his Eleftion, on figning his
final Judgment, what Method he will take
that the Officer may make an Allowance ac-
cordingly.
It is for this Reafon that Bonds and War-
rants of Attorney to confefs Judgment are
made in double the Sum, becaufe by recover-
ing the Penalty, thcfe Cofts may be taken
thereout.
APPENDIX*
[ 197 ]
nmr^9'^'r^''^^wr'mmmmmmmtmmmimm
A P P E N D I X.
Of an Iffue joined in the Common Pleas in
an ASiion ofTrefpafsforJiJbingy &c.
Cooke.
Hilary Term in the Thirty- third Year of
fhe Reign of King George the Second,
Oxford/hire, 7 T^RANCIS G. late of ^/yr^^-Dcclaratioiu
to wit. 1 X/ rffughy in the faid Coiinty,
Yeoman ; Wiliiam A. late of the fame Place,
Vidtualler; John E. late of the fame Place,
Labourer ; Jojeph A. late of the fame Place,
Maltfter ; and Samuel H. late of Benfingtoriy in
the faid County, Gentleman, were attached
to anfwer Edward B. of a Plea wherefore with
Force and Arms they fifhed in xS\tfree FiQiery
of the faid Edward, in the River Thamesy at
Shillingfordy within the Parifli of JVarboroughy
in the faid County of Oxford^ and the Fifh of
the Value of twenty Pounds thereout took
and carried away; and alfo wherefore, with
Force and Arms, they fifhed in xkt feveral
Filhcry of the faid Edward in the River Thames
at Shillingford aforefaid, within the Parifh of
War borough aforefaid, in the faid County of
Oxfordy and the Fifh of the Value of other
twenty Pounds thereout took and carried away,
and other Wrongs there did to the faid Ed^
wardy to the great Damage of the faid £//-
wa7'dy and againfl the Peace of our Lord the
prcfent King: And whereupon the faid Ed^
^jQ/irdi by A. B. his -Attorney, complains that
O 3 the
198
APPENDIX.
zd Count.
, the faid Francis y William^ Jobriy Jo/e^by and
I ft Count. Samuel y on the firft Day of January in the
Year of our Lord one thoufand {tvtn hundred
and fifty-nine, and on divers other Days and
Times between that Day and the twentieth
Day of Ntnxemier then next following, with
Force and Atms fiflied in the free Fifliery of
the faid Edward^ in the River Thamesy at Shil-
lingford aforefaid, within the Parifh of IVarbo-
rough aforefaid, in the faid County of Ox/brJ,
and the Filh, to wit, one Salmon, twenty
Barbels, twenty Jacks, one thoufand Perches,
one thoufand Blays, one thoufand Roaches,
one thoufand Daces, one thoufand Gudgeofts,
and one thoufand Eels, of the Value, fcf^.
thereout took and carried away; And alfo for
that the faid Francisy iVilliamy John^ Jo/epby
and Samuely on the faid firft Day of January
in the Year aforefaid, and on divers other
Days and Times between that Day and the
twentieth Day of November then next fol-
lowing, wjth Force and Arms filhed in the
Jeveral Fiftiery of the faid Edwardy in the
River ThameSy at Sbillingford aforefaid, with-
in the Parifh of Warborough aforefaid, in
the faid County of Oxfordy and the Fifh, to
wit, one Salmon, twenty Barbels, twenty
Jacks, one thoufand Perches, one thoufand
Blays, one thoufand Roaches, one thoufand
Daces, one thoufand Gudgeons, and one
thoufand Eels, of the Value, ^c. thereout
took and carried away, and other Wrongs,
fcf^. to the great Damage, i£c. and againft
the Peace, 6?r. Whereupon the faid Edward
fays that he is injured, and hath fuftained Da-
mage to the Value of twenty Pounds, and
therefore he brings his Suit, Gf^.
And
APPENDIX. 199
And the faid Francisy WtHiam, Johfi^ Jofeph piea. •
and Samuel^ by R. Bdtftt their Attorney, come
and defend the Force and Injury, when, i^c.
and fay Aat they arc Not guilty of the Tref-
pafs aforefaid, in Manner and Form as the
faid Edward hath above thereof complained
againft them ; and of this they put tfiemfelves
on the Country ; and the faid Edward doth fo
likewife; and for further Plea as to the filh-
ing in the faid Fiftiery in the idxAJirft Count of
tiie faid Declaration mentioned, and the faid
Filh in the faid firft Count of the faid Decla-
ration mentioned thereout taking and carrying
away above fuppofed to have been committed
by the faid Francis^ tVilliamj John^ Jojepb and
Samuel^ they the faid Francis^ William^ Jobn^
Jo/epb and Samuei, by Leave of the Court
here for this Purpofe firft had and obtained,
according to the Form of the Statute in fuch
Cafe made and provided, fay, that the faid
Edward ought not td have his aforefaid Ac-
tion thereof againft them, becaufe they fay
that the faid Fifhery in the frj^ Count of the
faid Declaration mentioned, and in which, 6?r.
is, and at the faid feveral Times when, fffr. and
long before, was a Fifhery in and upon a cer-
tain Piece or Parcel of Land, covered with
Water, called the River Tbamrsy adjoining to
a certain Clofe or Piece of Land, called Bury
Meady otherwife Hajeley Meady in the Parilh
of iVarborough aforefaid, and running clofe by
the faid Clofe or Piece of Land, called Bury
Meady otherwife Hajeley Mead, and extending
in Length the whole Length or Side of the
faid Clofe or Piece of Land called Bury Meady
otherwife Hafeley Meady next the faid River,
O 4 and
ftoo A P P E N D I X.
and in Breadth from the Bank of the faid
River next the faid Clofe or Piece of Land,
called Bury Meady otherwife Hajeley Mead, to
the Middle of the Stream of the faid River;
and that the Preftdent and Scholars of Saint
John Baftift College in the Univerfity of Ox-
ford aforefaid, before the firft Time when,
(^c. and at the faid feveral Times when, iSc.
were and ftill are feifed in their Demefne as
of Fee of and in four Acres of Land, with the
Appurtenances, lying and being in the faid
Clofe or Piece of Land, called Bury Mead^
otherwife Hafeley Meady in the Parifh of War-
borough aforefaid, and Parcel thereof; and
that they the faid Prefident and Scholars, and
all thofe whofe Eftate they now have, and at
the faid feveral Times when, ^c. had of and
in the faid four Acres of Land, with the
Appurtenances, Parcel, ^c. from Time
whereof the Memory of Man is not to the
contrary, have had, and •have been ufed and
accuftomed to have, and of Right ought to
. have had, and ftill of Right ought to have for
themfelves, their Farmers and Tenants of the
four Acres of Land, with the Appurtenances,
Parcel, ^c. for the Time being, ^ifree Filhery
in the faid River Thamesy at Warborough afore-
faid, and within the Limits and Bounds above
in this Plea particularly mentioned, every Year,
at all Times of the Year, at free Will and
Pleafure, as belonging and appertaining to
their aforefaid four Acres of Land, with the
Appurtenances, Parcel, i£c. and the faid Pre-
fident and Scholars being fo feifed of and in
their aforefaid four Acres of Land, with the
Appurtenances, Parcel, tf^. they the faid
Prefident
APPENDIX. 101
Prefident and Scholars, before the firft Time
when, Cs?r. to wit, on the thirtieth Day of
May in the Year of our Lord one thoufand
feven hundred and fifty-eight, at Shillingfori
aforefaid in the County aforefaid, by a certain
Indenture then there made between the faid
Prefident and Scholars of the one Part, and
one Richard B. of the other Part, the one Part
of which faid Indenture, fealed with the com-
lYion Seal of the faid Prefident and Scholars,
they the faid FranciSy IVilliamj Jobtiy Jofepb
and Samuely now bring here into Court, the
Date whereof is the Day and Year laft above-
faid, for the Confiderations therein mentioned,
did demife and to Farm let unto the faid
Richard B. four Acres of Land, with the Ap-
purtenances amongft other Things, To have and
to hold the fame unto the faid Richard B. his
Executors, Adminiftrators, and Afligns, from
the Feafl: of the Annunciation of the Blejfed
Virgin Mary then laft paft, until the End and
Term o( twenty Years from thenceforth next
cnfuing and fully to be compleat and ended;
by virtue of which faid Demife he the faid
Richard B. afterwards and before the firft
Time when, 6?r. to wit, on the faid thirtieth
Day of May in the Year of our Lord one
thoufand feven hundred and fifty-eight, en-
tered into the faid four Acres of Land, with
the Appurtenances, Parcel, tf r. and was, aijd
from thenceforth hitherto hath been, and ftill
is thereof poflTefled j and being fo thereof pof-
fefled, they the faid Francis^ Williamy John^
Jofepb and Samuely as the Servants of the faid
Richard B. and by his Command at the faid
fcveral Times when, &fr. fiihed in the faid
Filhcrjr
1*2 APPENDIX.
Fifticry above in this Pka particularly men-
tionedy and in which, 6f^. as in the free Filhcry
of the faid Richard B. and the faid Fifli in the
frfi Count of the faid Declaration mentioned
thereout took and carried away, as they law-
fully might, for the Caufc aforefaid, which arc
the faid fifhing in the faid Fijhery in the faid
frj} Count of the faid Declaration mentioned,
and the faid Fifh in the faid Jlrfi^ Count of the
faid Declaration mentioned thereout taking
and carrying away, whereof the faid Edwitrd
hath above complained againft them, the faid
Francis, H^^illiamy John, Jofeph and Samuel;
and this they are ready to verify ; wherefore
they pray Judgment if the faid Edward ought
to have his aforefaid A ft ion thereof againft
them, 6?r. and for further Plea as to the fifhing
in the faid Fifhery in the faid firft Count of
the faid Declaration mentioned, and the faid
Fifti in the faid firft Count of the faid Decla-
ration mentioned thereout taking and carrying
away, above fuppofed to have been commit-
ted by the faid Francis^ William^ JohUy Jojefh
and Satnuely they the faid Fraficis^ ff'illuim,
John, Jofeph and Samuel, by like Leave of
the Court here for this Purpofc firft had and
obtained, according to the Form of the Sta-
tute in fuch Cafe made and provided, fay, that
the faid Edward ought not to have his afore-
faid Aftion thereof againft them, becaufe they
fay that the faid Fifliery in the firft Count of
the faid Declaration mentioned, and in which,
ifc. is, and at the faid feveral Times when,
fcff. and long before, was a Fiftiery in and
upon a certain Piece or Parcel cf Land, co-
vered with Water, called the River Thames,
adjoining
APPENDIX.
adjoining to a certain Clofc or Piece of Land
called Bury Meadj otherwife Haftky Mead^ ih
the Parifti of IVarbcrBUgh aforcfaid, and run-
ning clofe by the faid Clofe or Piece of Land
called Bury Mead, otherwife Hafeley Mead^ and
extending ill Length the whole Length or
Side of the faid Clofe or Piece of Land called
Bury Mead^ otherwife Ha/tky Mead, next the
faid River, atid in Breadth from the Bank of
the faid River next to the faid Clofe or Piece
of Land called Bury Mend, otherwife Haftley
jMead^ unto the Middle of the Stfeam of thp
faid River; and that the Prcfidcnt and Scho--
lars of SAint Jabn Baptift College in the Uni-
vcrCity of Oxford, before the firft Time when>
isfc. and at the faid feveral Times when, fcfr*
were and ftill are feifed in their Demcfne as of
Fee, of and in four Acres of Land, with the
Appurtenances, lying and being in the faid
Clofe or Piece of Land, called Bury Mead^
otherwife Hafeley Mead, and Parcel thereof j
and that they the faid Prefident and Scholars,
and all thofe whofe Eftatc they now have, and
at the faid feveral Times when, iSc. had of
and in the faid laft-mentioned four ^res of
Land, with the Appurtenances, from Time
whereof the Memory of Man is not to the
contrary, have had, and have been ufed and
accuftomed to have, and of Right ought to
have had, and ftill of Right ought to have fot
themfelves, their Farmers and Tenants of the
aforefaid laft^mentioned four Acres of Land,
with the Appurtenances, Parcel, iic. for the
Time being. Common of Fifliery in the faid
River Thames, at Warborougb aforefaid, and
within the Limits and Bounds above in this
Plea
ao3
ao4
APPENDIX.
Plea particularly mentioned, every Year, at all
Times of the Year, a: their free Will and
Pleafure, as belonging and 'appertaining to
their aforefaid laft^mentioned four Acres of
Land, with the Appurtenances, Parcel, tfr.
and the faid Prefident and Scholars being fo
feifed of and in the aforefaid laft-mentioned
four Acres of Land, with the Appurtenances,
they the faid Prefident and Scholars, before the
firft Time when, fcfr. to wit, on the thirtieth
Day of May in the Year of our Lord one
thoufand fevcn hundred and fifty-eight, at
Shillingford aforefaid in the County aforefaid,
by a certain Indenture then and there made
between the faid Prefident and Scholars of the
one Part, and the faid Rkbard B. of the
other Part, one Part of which faid laft-men-
tioned Indenture, fealed with the Common
Seal of the faid Prefident and Scholars, they
the faid Francis^ William^ John^ Jo/eph and
Samuel now bring here into Court, the Date
whereof is the Day and Year laft aforefaid,
for the Confideration therein mentioned, did
demife and to Farm lett unto the faid Ricbara
B. the /aid laft-mentioned four Acres of Land,
with the Appurtenances, Parcel, tfr. to have
and to hold the fame unto the faid Richard B.
his Executors, Adminiftrators and Afl5gns,
from the Feaft of the Annunciation of the blej-
fed Virgin Mary then laft paft, unto the End
and Term of twenty Years from thenceforth
next enfuing 'and fully to be cgmpleat and
ended j by virtue of which faid Demife the
faid Richard B. afterwards, and before the firft
Time when, isfc. to wit, on the faid thirtieth
Day of May in the Year of our Lord one
thoufand
APPENDIX, 1205
thoufand feven hundred and fifty-eight afore-
faid, entered into the faid laft-mentioned four
Acres of Land, with the Appurtenances fo
demifed in Form aforefaid, Parcel, fefr. and
at the faid feveral Times when, Gf f . was, and
from thenceforth hitherto hath been, and ftill
is thereof poffefled ; and being fo thereof pof-
feflcd, they the faid Francis, William, John,
Jo/eph and Samuel, as the Servants of the faid
Richard B. and by his Command, at the faid
feveral Times when, &ff. fifhed in the faid
Fifhery above in this Plea particularly men-
tioned, and in which, 6ff. as in the common
Fifhery of the faid Richard B. there ; and the
faid Fifh in th^firji Count of the faid Decla-
ration mentioned thereout took and carried
away, to the Ufe of the faid Richard B. ufing
the faid Common of Fifhery of him the faid
Richard B. as they lawfully might, for the
Caufe aforefaid, which are the faid fifhing in
the faid Fifhery in the faid firjl Count of the
faid Declaration mentioned, and the faid Fifh
in the faid firjl Count of the faid Declaration
mentioned thereout taking and carrying away,
whereof the faid Edward hath above com-
plained againfl them the faid Francis, William^
John, Jofeph and Samuel \ and this they are
ready to verify; Wherefore they pray Judg-
ment if the faid Edward ought to have his
aforefaid Aftion thereof againfl them, fc?f.
and for further Plea, as to the fifhing in the faid
Fifhery in the faid/r/? Count of the faid De-
claration menticfned, and the faid Fifh in the faid
firji Count of the faid Declaration mentioned
thereout taking and carrying away, above fup-
pofed to have been committee? by the faid
Francis^
2o6 APPENDIX^
Francis, ^Filliam, Johty Jofefh and Samuel^
they the faid Francis, ff^Uiam, John, Jqfepb
and Samuel, by like Leave of the Court here
for this Purpofc firll had and obtained, ac-
cording to the Form of the Statute in fuch
Cafe made and provided, fay, th^t the faid
E:dward ought not to have his aforefaid A&ion
thereof againft them, bccaufc they fay that
the faid Fift^cry in the firfi CouAt of tlie iai4
Declaration mentioned, ^xA in wJuch^ ^c. i$i
. and at the &id ieveral Tirne^ when, i^c. and
long before, was ^ Fiihery ip su^d u^oiii a ccr*
tain Piece or Parcel of Land, covered with
Water, called t^ie River Tb^m^, ^joitiing to
a certain Clofc or Parcel of L^nd, cal],ed Bury
Mead, otherwife Hajlsley Me^d, ia the Fariib of
Warberougb aforcfaid, and running clofe by
the faid Cktfe or Piece of Land> c^ed Bur/
idfiad, otherwife Us^ehy M^ad, and cii^tf nding
iii Length the whole Length or Sid^ of the
faid Clofe or Piece off Land calkd Muty JkUad,
otherwife Hafeley Mead next the faid River,
and in Breadth, from the Bank of the £iMd Ri-
ver next to tlie faid Clofe or Piece of Land,
called Bury Mead, otherwife Hafeley Mead, un-
to the Middle of the Stream of the faid River,
and whiqh faid Fiftiery above in this Plea
particularly mentioned, and in which,- Csf^. is,
and at the faid feveral Times when, fc?r. was
tht free Fifbery of the faid Prefident and Scho-
lars of Saint John Baptiji College in the Uni-
verfity of Oxford-, for which Reafon they the
faid Francis^ Williamy John, yofeph and Sa-
muel, as the Servants of the /aid Prejident and
Scholars, and by their Command, at the faid
fQveral Times* when, ^c. fifhed in the faid
Fifhery
APPENDIX. ao7
Filhery abpvc in this Plea particularly men-
tioned, and in which, &?c. as in the frte
Fifhery of the faid Prcfident and Scholars;
and the faid Fifli in t\vtfirft Count of the faid
Declaration mentioned, as the Fifli of the faid^
Filhery of them the faid Prcfident and Scho-
lars, thereout tool^ and carried away, as it was
lawful for them to do, for the Caufe aforefaids
which are tjie faid fifhing in the faid Fifhery
in the faid firji Count of the faid Declaration
mentioned, and the faid Filh in the faid Jirji
Count of the faid Declaration mentioned
thereout taking and carrying away, whereof
the faid £^^tfr^ hath above complained againft
them the faid Franct^j IFilliam, John, 7<iM^ •
and Samuel ; and this they are ready to verify ;
Wherefore they pray Judgment if the faid Ed-
ward ought to have his aforefaid Action there-
of againfl them, &c. And for further Plea
as to fifhing in the faid Fifhery in the faid
Juond Count of the faid Declaration men-
tioned, and the faid Fifh in the faid Jecond
Count of the faid Declaration mentioned there-
out taking and carrying away, above fuppofed
to have been committed by the faid Francis^
William^ John^ Jofepb and Samuel^ they the faid
Francis^ William^ Jobn^ J^f^ and Samuel^ by
Leave of the Court here for this Purpofe firft
had and obtained, according to the Form of the
Statute in fuch Cafe made and provided, fay>
that the faid Edward ought not to have or
maintain his aforefaid Action thereof againfl: ,
them, bec^fe they fay that the faid Fifhery
in the faid fecond Count of the faid Declara-
tion mentioned, is, and at the faid feveral
Times when, ^c. and long before, was a
Piece or Parcel of Land, covered with Water,
2 called
ao8 A P .P E N D I X.
called the River Thames, adjoining to a certain
Clofe or Piece of Land, called Buiy Mead^
otherwife Hafeley Mead, in the Parifh of War-
. borough aforefaid, and running clofe by and
along the faid Clofe or Piece of Land called
Bury Meady otherwife Hajeley Mead, and ex-
tending in Length the whole Length or Side
of the faid Clofe or Piece of Land called Bury
Meady otherwife Hajeley Mead^ next the faid
River, and in Breadth from the Bank of the
faid River next the faid Clofe or Piece of Land
called Bury Mead, otherwife Hajeley Mead^
unto the Middle of the Stream of the faid
River; and that the Prefident and Scho-
lars of Saint John Baftiif College in the Uni-
verfity of Oxford, before the firft Time when,
6fr. and at the faid feveral Times when, &fr.
were and ftiH are feifed in their Demefne as
of Fee of and in four Acres of Land, with
the Appurtenances, lying and being in the
Parifh aforefaid, in the faid Clofe or Piece of
Land called Bury Mead, otherwife Hajeley
Mead, and Parcel thereof; and that they the
faid Prefident and Scholars, and all thofe whofc
Eftate they now have, and at the faid feveral
Times when, 6f r. had of and in the aforefaid
laft-mentioned four Acr^s of Land, with the
Appurtenances, Parcel, 6f r. from Time where-
of the Memory of Man is not to the contrary,
have had, and have been ufed and accuftomed
to have, and of Right ought to have had for
themfelves, their Farmers and Tenants of
the faid laft-mentioned four Acres of Land,
with the Appurtenances, Parcel, &ff. for the
Time being, a free Fiftiery in the faid River
Thames^ at Warborowgh aforefaid, and within
the
APPENDIX..
the Limits and Bounds above in this Plei
particularly mentioned, every Year, at all
Times of the Year, at their free Will and
Pleafure, as belonging to the faid laft- men-
tioned four Acres of Land, with the Appur-
tenances, Parcel, (fc. and the faid Frefident
and Scholars being fo feifcd of and in their
aforefaid laft-mentioned four Acres of Land,
with the Appurtenances, Parcel, fer^. they the
faid Prefident and Scholars, before the firft
Time when, ^c. to wit, on the thirtieth Day
of May in the Year of our Lord one thoufand
feven hundred and fifty eight, at Shillingford
aforefaid in the County aforefaid, by a cer-
tain Indenture then and there made between
the faid Prefident and Scholars of the one Part,
and the aforefaid Richard B. of the other Part,
the one Part of which faid laft mentioned In-
denture, fealed v/i:h the common Seal of the
faid Prefident and Scholars, they the faid
FranciSy JVilliamy Johriy Jo/eph and Samuel
now bring here into Court, the Date whereof
is the fame Day and Year laft aforefaid, for
the Confiderations therein mentioned, did de-
inife and to Farm ktt unto the faid Richard B.
the faid four Acres of Land, with the Appur-
tenances, Parcel, &ff. To have and to hold
the fame unto the faid Richard B. his Execu-
tors, Adminiftrators and Afligns, from the
Feaft of the /innunciation of the Blejfed Virgin
Mary then laft paft, until the End and Term
of twenty Years from thence next enfuing and
fully to be compleat and ended ; by virtue of
which faid laft-mentioned Demife he the faid
Richard 5. afterwards, and before the firft
Time when, trV. to wit, on the faid thirtieth
P Day
209
aio
APPENDIX.
Pay of May in the Year of our Lord one
tho]ufand feven hundred and fifty-eight, en-
tered into the faid laft-mentioned four Acres
of Land fo demifed in Form aforefaid, with
the Appurtenances, Parcel, i^c. and was and
from thenceforth hitherto hath been, and ftill
is thereof poflcfled ; and being fo thereof pof-
fefled, they the faid Francisy William^ Jobtiy
yo/epb and Samuel^ as the Servants of the faid
Richard B. and by his Command, at the faid
feveral Times when, fefr. fifhed in the faid
Fiftiery above in this Plea particularly men-
tioned, and in which, fcfr. as in the free Fifhery
of the faid Richard B. and the faid Fifh in
tte frji Count of the faid Declaration men-
tioned thereout took and carried away as the
Fifli of the faid Richard B. coming out of the
free Filh^ry of the faid Richard B. as they
lawfully might, for the Caufe aforefaid, which
are the faid filhing in the faid Fifhery in the f;ud
Jecand Count of the faid Declaration mentioned,
and the faid Fifh in the faid fecand Count of
the faid Declaration mentioned thereout taking
and carrying away, whereof the faid Edward
' hath complained againft them the laid Francis^
• William^ Jobn^ Jofeph and Samuel i and this
they are ready to verify ; Wherefore they pray
Judgment if the faid Edward ought to have
his aforefaid Aftion thereof againft them, (^c.
And for further Plea as to the fifhing in the
faid Fifhery in the isid fecond Count of the faid
Declaration mentioned, and the faid Fifli in
the faid fecond Count of the faid Declaration
mentioned thereout taking and carrying away,
above fuppofed to have been committed by
the faid Francis^ fTiliiam, Johfi, Jo/eph and
3 Samuel^
APPENDIX. axi
Saniuely they the faid Francis, IVHliamy Johtii
Jo/eph and Samuely by like Leave of the
Court here for this Purpofe firft had and ob-
tained, according to the Form of the Statute
in fuch C>fe made and provided, fay, that
the faid Edward ought not to have his afore-
faid Aftion thereof againft them, becaufe they
fty that the faid Filhery in the faid Jecond
Count of the faid Declaration mentioned is,
and at the faid feveral Times when, fcrr. and
long before, was a Filhery in and upon a cer*
tain Piece or Parcel of Land, covered with
Water, called the River Thames, adjoining to
a certain Clofe or Piece of Land, called Bury
Mead, otherwife Ha/eley Mead, in the Parifh
of tVarborough aforefaid, and running clofe by
the faid Clofe or Piece of Land called Bury
- Mead, otherwife Hajeley Mead, and extending
in Length the whole Length or Side of the
iaid Clofe or Piece of Land called Bury Mead,
otherwife Ha/eley Mead, next the faid River,
and in Breadth from the Bank of the faid Ri-
ver next to the faid Clofe or Piece of Land
called Bury Mead, unto the Middle of the
Stream of the faid River, and that the Prefi-
dent and Scholars of Saint Jchn Baptijt College
in the Univerfity of Oxford, before the firft
Time when, i^c. and at the faid feveral Times
when, i^c. were and ftill ^re feifed in their
Demefne as of Fee of and in four Acres of
Land, with the Appurtenances, lying and be-
ing in the faid Clofe or Piece of Land called
Bury Mead, otherwife Ha/eley Mead, and Par-
cel thereof; and that they the faid Prefident
and Scholars, and all thofe whofe Eftate they
now have, and at the faid feveral Times when.
Pa,. i^c.
212 APPENDIX,
6r^. had of and in the faid laft-mentioned
Land, with the Appurtenances, from Time
whereof the Memory of Man is not to the con-
trary, have had, and have been ufed and ac-
cuftomed to have, and of Right ought to have
had, and ftill of Right ought to have for them-
felves, their Farmers and Tenants of the afore-
faid laft-mentioned four Acres of Land, with
the Appurtenances, Parcel, i^c. for the Time
being. Common of Fifliery in the faid River
^hamesy at IVarborough aforefaid, and within
the Limits and Bounds above in this Plea
particularly mentioned, every Year, at all
Times of the Year, at their free Will and
Pleafure, as belonging and appertaining to the
aforefaid laft-mentioned four Acres of Land,
with the Appurtenances, Parcel, &c. and the
faid Prefident and Scholars being fo feifed of
and in their aforefaid laft-mentioned four Acres
of Land, with the Appurtenances, Parcel, &c.
they the faid Prefident and Scholars, before
the firft Time when, i^c. to wit, on the thir-
tieth Day of May in the Year of our Lord
one thoufand feven hundred and fifty-eight
aforefaid, at Shillingford aforefaid in the Coun-
ty aforefaid, by a certain other Indenture then
iand there made between the faid Prefident and
Scholars of the one Part, and the faid Richard
B. of the other Part, the one Part of which
faid laft-mentioned Indenture, fealed with the
common Seal of the faid Prefident and Scho-
lars, they the faid Francis^ PFilliamj Jobn, Jo-
Jeph and Samuel now bring here into Court,
the Date whereof is the Day and Year laft
abovefaid, for the Confiderations therein men-
tioned, did demife and to Farm lett unto the
faid
APPENDIX.
faid Richard B, the faiad four Acres of Land,
Parcel, i^c. with the Appurtenances, To have
and to hold the fame unto the faid Richard B.
his Executors, Adminiftrators and Afligns,
from the Feaft of the Annunciation of the Blef-
Jed Virgin Mary then laft paft, unto the End
and Term of twenty Years from thenceforth
next enfuing and fully to be complcat and
ended ; by virtue of which faid laft-mentioned
Demife the faid Richard B. afterwards, and
before the firft Time when, i^c. to wit, on
the faid thirtieth Day of May in the Year of
our Lord one thoufand feven hundred and
fifty-eight aforefaid, entered into the faid laft-
mentioned four Acres of Land, with the Ap-
purtenances, Parcel, (^c. fo demifed in Form
aforefaid, and was, and from thenceforth hi-
therto hath been, and ftill is thereof poflTefled,
and being fo thereof poffefTed, they the faid
Francis, William, John, Jofeph and Samuel, as
the Servants of the faid Richard B, and by his
Command at the faid feveral Times when, ^c.
fifhed in the faid Fiftiery above in this Plea
particularly mentioned, and in which, ^c. as
in the Com-mon Fifliery of the faid Richard B.
and the faid Fifli in the faid Jecond Count of
the faid Declaration mentioned thereout took
and carried away to the Ufe of the faid Richard
B. ufing the faid Common of Fifhery of the faid
Richard B. there, as they lawfully might, for
the Caufe aforefaid, which are the faid filhing
in the faid Fiftiery m the faid Jecond Count of
the faid Declaration mentioned, and the faid
Filh in the faid Jecond Count of the faid De-
claration mentioned thereout taking and car-
rying away, whereof the faid Edward hath
P 3 above
213
an
V
APPENDIX.
above complained againft them the faid Fran-
cis^ JVilliamy Jobn^ Jo/epb znd Samuel i and this
they are ready to verify ; Wherefore they pray
Judgment if the faid Edward ought to nave
his aforefaid Aftion thereof againft them, feV.
and for further Plea as to the fifhing in the
faid Fiftiery in the {zid fecond Count of the faid
Declaration mentioned^ and the faid Fifh in
the faid Jecond Count of the faid Declaration
mentioned thereout taking and carrying away,
above fuppofed to have been committed by
the faid Francis^ William^ Jobn^ J^J^^ ^^^
Samuel^ they the faid Francis^ William^ Johfiy
Jofeph and Samuely by like Leave of the Court
here for this Purpofe firft had and obtained,
according to the Form of the Statute in fuch
Cafe made and provided, fay, that the faid
Edward ought not to have his aforefaid Aftion
thereof againft them, becaufe they fay that
the faid Fifhery in the faid Jecond Count of
the faid Declaration mentioned, and in which,
6?r. is, and at the faid feveral Times when,
l^c. and long before, was a Fiftiery in and
upon a certain Pi.ece or Parcel of Land co-
vered with Water, called the River Thames^
adjoining to a certain Clofe or Parcel of Land
called Bury Mead, otherwife Hajeley Mead^ in
the Parifti of Warborough aforefaid, and run-^
ning clofe by the faid Clofe or Piece of Land
called Bury Mead, otherwife Uajeley Meai^
and extending in Length the whole Length of
,Side of the faid Clofe or Piece of Land called
Bury MeOd^ otherwife Hajeley Meady next the
faid River, and in Breadth from the Bank of
the faid River next to the faid Clofe or Piece of
Land called Bury Meady otherwife Hajeley
Mead^ unto the Middle of the Stream of the
(ai4
APPENDIX. 1215
laid River, ar\J which faid Fifhery above in this
Plea particularly mentioned, and in which,
&?r. is, and at the faid feveral Times, when,
£5?r. was the feveral Fifhery of the faid Pre-
fident and Scholars of Saint John Baptift Col-
lege in the Univerfity of Oxford -y for which
Reafon they the faid Francis y William y John^
Jofeph and Samuely as thfe Servants of the faid
Pr^Jident and Scholarsy and by their Com-
mand at the faid feveral Times when, iSc.
filhed in the faid Fifhery ibove in this Plea
particularly mentioned, and in which, ^c, as
in tht feveral Fifhery of the faid Prefident and
Scholars, and the faid Fifh in the faid fecond
Count of the faid Declaration mentioned as the
Fifh of the faid Fifhery of them the faid Pre- ^
lident and Scholars thereout took and carried
away, as it was lawful for them to do, for the
Caufe aforefaid, which are the faid fifhing in the
faid Fifhery in the {d\A fecond Count of the faid
Declaration mentioned, and the faid Fifh in the
{2L\6, fecond Count of the faid Declaration men-
tioned thereout taking and carrying away,
whereof the faid Edward hath above thereof
complained againfl them the faid Francis^ Wil-
lianiy John^ Jofeph and Samuely and this they
are ready to verify ; Wherefore they pray Judg*
tnent if the faid Edward ought to have his
aforefaid Aftion thereof againfl them.
And the faid Edwardy as to the faid Plea of
the faid Francisy Williamy Jebny Jofeph and ^^P^^^^°»-
Samuely by them fecondlv above pleaded in
Bar, as to the fifhing in the ftid Fifhery in the
faid firjl Count of the faid Declaration men-
-tioned, and the faid Filh in the faid frft
Count of the faid Declaration mentioned there*
P 4 out
2i6 APPENDIX.
out taking and carrying away, above committed
by the faid Francis^ JVilUamy Jobn^ Jofeph and
Saviuclj fays that he, by rpafon of any thing
therein alledged, oiiglit not to be barred from
having his aforefaid Aftion thereof againft
them, bccaufe he faitli that true it is that the
faid Fifliery in the frji Count of the faid De-
claration mentioned, and in which, i^c. is
and at the faid feveral Times when, ^c. and
long before, was a Fifhcry in and upon the
faid Piece or Parcel of Land covered with
Water, called the River Thames y adjoining to
the faid Clofe or Piece of Land in the faid
Plea mentioned, cajled Bury Mead^ otherwifc
Hafeley Meady in the Parifli of IVarbgrough
aforefaid, and running clofe by the faid Clofc
or Piece of Land called Bury Mead^ otherv/ife
Hqfeley Meady and extending in Length the
whole Length or Side of the faid Clofe or
Piece of Land, called Bury Mead^ otherwife
Hafeley Meady next the faid River, and in
Breadth from the Bank of the faid River next
the faid Clofe or Piece of Land called Bury
Meady otherwife Hafeley Meady to the Middle
of the Stream of the faid River, as the faid
Francis^ M'^illiamy Johtiy Jofeph and Samuel
have above alledged ; but the faid Edward
further faith. That the faid Francisy Williamy
Johny Jofeph and Samuely at tlie faid feveral
Times when, iSc. of their own IVrong fiflied
in the faid Fifliery of the faid Edward in the
firji Count in the faid Declaration mentioned,
and the faid Fifh in the faid/r/? Count in the
fjiid Declaration mentioned thereout took and
carried away in Manner and Form as the faid
l^Award h^th.^bove thereof. complained againft
them,
APPENDIX. ai7
them; Without this, that the Prefident andTravcrieof
Scholars ofS^dnt John Baptift College in the^V.
Univerfity o{ Oxford^ and all thofe whofe Eftate
they now have, and at the faid feveral Times
when, iic. had of and in the faid four Acres
of Land with the Appurtenances in the faid
Plea mentioned. Parcel, tfr . from Time where-
of the Memory of Man is not to the contrary,
have had, and have been ufed and accuftomed
to have, and of Right ought to have had, and
ftill of Right ought to have for themfelves,
their Farmers and Tenants of the faid four
Acres of Land with the Appurtenances, Par-
cel, t5?f. for the Time being, a free Fifliery
in the faid River Thames y at Warborough afore-
faid, and within the Limits and Bounds Jn the
faid Plea particularly mentioned, every Year,
at all Times of the Year, at free Will and
Pleafure, as belonging and appertaining to
their aforefaid four Acres of Land with the
Appurtenances, Parcel, fcfr. in Manner and
Form as the faid Francis^ William^ Johny Jo-
Jeph and Samuel in their faid Plea have above
alledged; and this the faid Edward hrcdLdy to
Verify i Wherefore inafmuth as the faid Fran-
cisy IVilHamy Johriy Jofeph and Samuel have
above acknowledged the committing of that
Trefpafs, the faid Edward prays Judgment,
and his Damages by reafon of the committing
thereof to be adjudged to him, Csfr. And the
faid Edwardy as to the faid Plea of the faid
FranciSy William^ Johfiy Jofeph and Samuely by
them thirdly above pleaded in Bar as. to the
fifhing in the faid Fifliery in the faid firfl Count
of the faid Declaration mentioned, and the
faid Filh in the faid'/;jy? Count of the faid
'"■ '■'' Decla-?
ai8 APPENDIX.
Declaration mentioned thereout taking and
carrying away, above committed by the faid
Francisy IVilliamy Johriy Jofeph and Samuely
fays, that he, by reafon of any Thing therein
aliedged, ought not to be barred from having
his aforefaid Aftion thereof againft them, be-
caufe he faith, that true it is that the faid
Fifhery in the jfr/? Count of the faid Declara-
tion mentioned, and in which, s'c. is, and at
the faid feveral Times when, is^c. and long
before, was a Fifhery in and upon the faid
Piece or Parcel of Land covered with Water,
called the River l*bames, adjoining to the faid
Clofe or Piece of Land in the faid Plea men*
tioned, called Bury Mead, otherwife HahUj
Mead, in the Parifh of Warhorough aforeiaid,
and running clofe by the faid Clofe or Piece of
of Land called Bury Mead, otherwife Hajelej
Mead, and extending in Length the whole
Length or Side of the faid Clofe or Piece of
Land, . called Bury Mead, other wjfe Hajeley
Mead next the faid River, and in Breadth
from the Bank of the faid River next the
faid Clofe or Piece of Land called Bury Mead,
otherwife Hafeley Mead, unto the Middle of
the Stream of the faid River, as the faid Fran-
cis, William, John, Jofeph and Samuel have
above aliedged ; But the faid Edward further
faith, That the faid Francis, William, John,
Jo/epb and Samuel at the faid feveral Times
when, 6?r. of their own Wrong, fifhed in the
faid Fifhery of the idhA Edward in the firft
Count in the faid Declaration mentioned, and
the faid Fifh in the faid firft Count in the faid
peclaration mentioned thereout took and car-
ried away in Marnier and For^n as the faid
Edwar$
APPENDIX. ai9
Edward hath above thereof complained againfl: Travcrfe of,
them ; Without this, t|>at the Prefident and ^^*
Scholars of Saint John Baptiji College in the
Univerfity of Oxford^ and all thofe whofe
Eftate they now have, and at the faid feveral
Times when, i^c. had of and in the faid four
Acres of Land, with the Appurtenances in
the faid Plea mentioned, from Time whereof
the Memory of Man is not to the contrary,
have had, and have been ufed and accuftomed
to have, and of Right ought to have had, and
ftill of Right ought to have for themfelves,
their Farmers and Tenants of the aforcfaid
laft-mentioned four Acres of Land with the
Appurtenances, Parcel, 6fr. for the Time
1>cing, Common of Fifhery in the faid River
Thamesy at PFarborougb aforefaid, and within
the Limits and Bounds in the faid Plea par-
ticularly mentioned, every Year, at all Timet
of the Year, at their free Will and Pleafure,
as belonging and appertaining to their afore-
laid laft-mentioned four Acres of Land with
the Appurtenances, Parcel, ^c. in Manner
and Form as the faid Francis^ William^ John,
Jofeph and Samuel in their faid Plea have above
allcdged ; and this the faid Edward is ready to
verify ; Wherefore inafmuch as the faid Eran-
fisy fVilliamy John^ Jofeph and Samuel have
above acknowledged the committing of that
Trefpafs, the faid Edward prays Judgment,
and his Damages by reafon of the committing
thereof to be adjudged to him, ^c. And the
faid Edwardy as to the faid Pica of the faid
FranciSf fVilliam, John, Jofeph and Samuel^ by
them fourthly above pleaded in Bar as to the
fiiljing iti th^ faid Filhery in the faid firji
Count
220 A 1> P E N D I X.
Count of the faid Declaration mentioned, and
the faid Fifh in the faid^ry? Count o£ the faid
Declaration mentioned thereout takingN and
carrying away, above committed by the faid
Fratjcis^ IVilliamy Johriy Jofeph and Samuel^ fays,
that he by reafon of any thing therein alledged
ought not to be barred from having his afore-
faid A(5lion thereof againfl them, becaufe he
faith that true it is that the faid Filhery in the
Jirfi Count of the faid Declaration mentioned,
and in which ^c, is, and at the faid feveral
Times when, i^c. and long before, was a
Fifhery in and upon the faid Piece or Parcel
of Land covered with Water, called the River
ThameSy adjoining to the faid Clofe or Piece
of Land in that Plea mentioned, called Bury
Meady otherwife Hafeley Meady in the Parifh
of IVarboroiigh aforefaid, and running clofe by
the faid Clofe or Piece of Land called Bury
Meady otherwife Hgjeley Meady and extending
in Length the whole Le.ngth or Side of the
faid Clofe or Piece of Land called Bury Meady
otherwife Hojeley Meady next the faid River,
and in Breadth from the Bank of the fa'd Ri-
ver next the faid Clofe or Piece of Land
called Bury Meady otherwife Hafeley Meady
unto the Middle of the Stream of the faid Ri-
ver, as the faid Francisy Williamy Johfty Jojepb
and Samuel have above alledged ; but the faid
Edward further faith. That the faid Fifhery in
the fa d Plea particularly mentioned in which,
6?r. is, and at the faid feveral Times when,
t?r. was the free Fifhery of the faid Edwardy
and not the free Fifhery of the faid Prefident
and Scholars of Saint John Baptift College in
the Univerfity of Oxford^ as the faid Francis^
fVilliam^
I
4
APPENDIX. 2zi
TVilliamj John^ Jojeph and Samuel have above
in their faid Plea alledged ; and this the ill IfTue join.
faid Edward prays may be inquired of by e^l by the
the Country, and the faid Francis, WilUam, P^^^^"^^-
John, Jqfefh and Samuel do the fame like-
wife ; And the faid Edward as to the faid Plea
of the faid Francis, William, John, Jojeph and
Samuel by them fecondly above plead^^ in
Bar as to filhing in the faid Fifhery ..i the
fecond Count of the faid Declaration men-
tioned, and the faid Fifli in the faid Jeccnd
Count of the faid Declaration mentioned
thereout taking and carrying away, above com-
mitted by the faid Francis, William, Johny
Jojeph and Samuel, fays that he, by reafon of
any thing therein alledged, ought not to be
barred from having his aforefaid Aftion there-
of againft them, becaufe he faith that true it'
is that the faid Fifhery in the fdAd fecond Count
of the faid Declaration mentioned in which,
fefr. is, and at the faid fcveral Times when,
i^c. and long before, was a Fifliery in and
upon the faid Piece or Parcel of Land co-
vered with Water, called the River ThameSy
adjoining to the faid Clofe or Piece of Land
in the faid Plea mentioned, called Bury Mead,
otherwife Hafeley Mead^ in the Parifh of War-
borough aforefaid, and running clofe by and
along the faid Clofe or Piece of Land called
Bury Mead, otherwife Hafeley Mead, and ex-
tending in Length the whole Length or Side
of the faid Clofe or Piece of Land called Bury
Mead, otherwife Hafeley Mead, next the faid
River, and in Breadth from the Bank of the
faid River next the faid Clofe or Piece of
Land called Bury Mead, otherwif.- Hafeley
Mead, unto the Middle of the Stream of the
faid
221 APPENDIX.
faid River, as the faid Francis, Williamy Jebn^
Jojepb and Samuel have above alledged i but the
faid Edward further faith, That the faid Francis^
William^ John^ Jo/eph and Samuel^ at the faid
fevcral Times when, i^c. of their own Wrong
fifhed in the faid Fifhery of the faid Edward
in tht fecond Count of the faid Declaration
mentioned, and the faid Fifii in the {d\Ajecond
Count of the faid Declaration mentioned there-
out took and carried away in Manner and
Form as the faid Edward hath above thereof
Travcrfc. compl.tined againft them i Without this, that
the Prefident and Scholars of Saint John Bap-
till College in the llniverfity of Oxford, and
all thofe whofe Eftate they now have, and at
the faid feveral Times when, feff. had of and
in the faid four Acres of Land with the Ap-
purtenances in the faid Plea mentioned. Par-
cel, i^c. from Time whereof the Memory of
Man is not to the contrary, have had, and
have been ufed and accuftomed'to have, and
of Right ought to have had for themfelves,
their Farmers and Tenants of the faid laft-
mentioned four Acr^s of Land with the Ap-
purtenances, Parcel, ^c. for the Time being,
a free Filhery in the faid River Thames, at
Warborough aforefaid, and within the Limki
and Bounds in the faid Plea particularly men-
tioned, every Year, at all Times of the Year,
ut their free Will and Pleafure, as belonging
to the faid laft-mentioned four Acres of Land
with the Appurtenances, Parcel, ^c. in Man-
ner and Form as the faid Francis, tVilUam^
Jobn^ Jofeph and Samuel in their faid Plea have
above alledged ; and this the faid Edward is
ready to verify \ Wherefore in as much as the
faid Francis, William, John, Jofeph and Sa-»
mud
APPENDIX.
muel have above aknowledged the commit-
ting of that Trefpafs, the faid Edward prays
Judgment, and his Damages by reafon of the
committing thereof to be adjudged to him,
€s?r. And the faid Edward^ as to the faid Plea
of the faid Francisy fFilliant, Johrii Jofeph and
Samuel by them thirdly abov^ pleaded in
Bar as to the fifhing in the feid Fifhery in
the faid Jecond Count of the faid Declaration
mentioned, and the faid Fifh in the faid Jecond
Count of the faid Declaration mentioned there-
out taking and carrying away, above com-
mitted by the faid Francis^ JVilliamy Johtiy
J-ofeph and Samuely fays, that he,^ by reafon
ot any thing therein alledged, ought not to
be barred from having his aforefaid Aftion
thereof againft them, becaufe he faith that true
it is, that the faid Fifhery in the Jecond Count
of the faid Declaration mentioned, in which,
fcff. is, and at the faid feveral Times when,
fcfr. and long before, was a Fifhery in and
upon the faid Piece or Parcel of Land covered
with Water, called the River Thames y adjoin-
ing to the faid Clofe or Piece of Land in the
faid Plea mentioned, called Bury Meady other-
wife Hajeley Meady in the Parifh of tVarborough
aforefaid, and running clofe by the faid Clofc
or Piece of Land called Bury Meady otherwife
Hajeley Meady and extending in Length the
whole Length or Side of the faid Clofe or
Piece of Land called Bury Meady otherwife
Hajeley Meady next the faid River, and in Breadth
from the Bank of the faid River next the faid
Clofe or Piece of Land called Bury Mead,
unto the Middle of the Stream of the faid Ri^
i|*ver, as tJie faid Irancis, ff^llliam, Jchty Jofepb
^ and
223
•224 APPENDIX.
and Samuel have above alledged ; But the faid
Edward further faith, that the faid Francis,
H'^illiamy Johny Jofeph and Samuel y at the faid
feveral Times when, &fr. of their own IVrcw^
fifhed in the faid Fifher)^ of the faid Edward
in the /econd Count of the faid Declaration
mentioned, and the faid Fi(h in the faid Jecond
Count of the Ibid Declaration mentioned there-
out took and carried away in Manner and
Form as the faid Edward hath above thereof
Travcrfe. complained againft them ; Without this, that
the faid Prefident and Scholars of Sairrt John
Baptijt College in the Univerfity of Oxfcrdy
and all thofe whofe Eftate they now have, and
at the faid feveral Times when, ^c. had of
and in the faid laft-mentioned Land, with the
Appurtenances in the faid Plea mentioned,
Parcel, k^c, from Time whereof the Memory
of Man is not to the contrary, have had, and
have been ufed and accuftomed to have, and
of Right ought to have had, and ftill of Right
ought to have for thei^felves, their Farmers
and Tenants of the aforefaid laft-mentioned
four Acres of Land with the Appurtenances,
Parcel, ^£c. for the Time being. Common of
Fifhcry in the faid River ThameSy at TVarho-
rouzh aforefaid, and within the Liinits and
Bounds in the faid Plea particularly men-
tioned, every Year, at all Times of the Year,
at their free Will and Pleafure, as belonging
and appertainining to the aforefaid laft-men-
tioned four Acres of Land with the Appur-
tenances, Parcel, iSc. in Manner and Form as
the faid Francisy Wtlliamy Johny Jofeph and
Samuel in their faid Plea have above alledped :
and this the faid Edward is ready to verify ;
Wherefore
APPENDIX, 225
\Vhereforc in as much as the faid Francis^ WiU
liamy John, Jo/eph and Samuel have above ac-
knowledged the committing of that Trefpafs, the *
faid Edward przy^ Judgment, and his Damages
by reafon of the committing thereof to be
adjudged to him3 fc?^* and the faid Edward,
as to the faid Plea of the faid Francisy H^illiam, j
Johriy Jo/eph and Samuel by them laftly above
pleaded in Bar as to the fifhing in the faid
Fifhery in the {z\A fecond Count of the faid
Declaration mentioned, and the faid Fifh in
the (dAA Jecond Count of the faid Declaration
mentioned thereout taking and carrying away,
above committed by the faid Francis^ William,
John, Jo/eph and Samuel, fays that he, by rea-
fon of any thing therein alledged, ought not
to be barred from having his aforefaid Aftion
thereof againft them, becaufe he fays that true
it is that the faid Fiftiery in the fecond Count
of the faid Declaration mentioned, and in
which, i^c. is, and at the faid feveral Times
when^ ^c. and long before, was a Fifhery in
and upon the faid Piece or Parcel of Land
covered with Water, called the River Thames,
adjoining to the faid Clofe or Piece of Land in
the faid Plea mentioned, called Bury Mead,
otherwife Hajeley Mead, in the Parifli of fVar-
h^rough aforcfaifl, and funning clofe by the faid
Glofe or Piece of Lahd called Bury Mead, other-
wife Hajeley Mead, and extending in Length the
whole Length or Side of the faid Clofe or
piece of Land called Bury Mead, otherwift
Hajeley Mead, next the faid River, and in
Breadth from the Bank of the faid River next
to the faid Clofe or Piece of Land called Bury
Mead, otherwife Hajeley Mead, unto the Mid -
Q die
226 APPENDIX.
die of the Stream of the faid River, as the*
faid Francisy William^ Johfiy Jofeph and Samuel
have above alledged; but the faid Edward fur-
ther faith. That the faid Filhcry in the faid Plea
particularly mentioned, in which, &?r. is and
at the faid feveral Times when, t^c. was the
feveral Fijhery of the faid Edwardy and not the
feveral Fijhery of the faid Prefident and Scholars
of Saint John Baptiji College in the Univer-
fity of Oxfordy as the faid Framisy ff^illiamy
Johny Jofeph and Samuel' have above in their
2d Iflue join- faid Plea alledged 5 and this the faid Edward
ed by the prays mav be inquired of by the Country ;
Plaintiff. ^^^ ^he laid Francisy Williamy John^ Jojefh
and Samuel do the fame likewife.
Rejoinder. And the faid Francis, JVilliatny Johny Jo^
feph and Samuely as to the faid' Plea' of
the faid Edward by him above pleaded by
way of Reply as to their faid Plea by them
above fecondly pleaded in Bar, as to the filh-
ing in the faid Filhery in the faid firft Count
of the faid Declaration mentioned, and the
faid Fiih in the faid firft Count of the faid
Declaration mentioned thereout taking and
carrying away, fay, as before, 'That the Pre-
fident and Scholars of Saint John Baptifl Col-
lege in the Univerfity of Oxfordy and all thofe
whofe Eftate they now have, and at the fsyd
feveral Times when, i^c. had of and in the
faid four Acres of Land, with the Appurte-
nances in the faid Plea mentioned. Parcel, i^c.
f?om Time whereof the Memory of Man is
not to the contrary, have had, and have been
ufcd and accuftomed to have, and of Right
ought to have had, and ttill of Right ought to
have for themfelves, their Farmers and Tenants
of
\
APPENDIX. 227
of the faid four Acres of Land with the
Appurtenances, Parcel, £s?f. for the Tinne
being, 2ifree Fifliery in the faid River Tbumesj
at fVarborough aforefaid, and within the Li-
mits and Bounds in the faid Plea particularly
mentioned, every Year, at all Times of the
Year, at their free Will and Pleafure, as be-
longing and appertaining to their aforefaid four
Acres of Land with the Appurtenances, Par-
cel, ^c. in Manner and Form as the faid
Francisy fFilliam, John, Jo/eph and Samuel
have above in their faid Plea in that Be-
half ailed ged ; and of this they put them- iftlfluejoin-
felves upon the Country, and the faid Edward ed by the
doth fo likewife ; and the faid Francis, Wil- l^cfendant-
Ham, Johriy Jofeph and Samuel as to the
faid Plea of the faid Edward by him above
pleaded by way of Reply as to the faid
Plea of the faid Francis^ William, Johriy Jofeph
and Samuely by them thirdly above plead-
ed in Bar as to the faid filhing in the faid
Fifhery in the faid firji Count of the faid
Declaration mentioned, and the faid Filh in
the faid firjl Count of the faid Declaration
mentioned thereout taking and carrying away,
fay, as before, that the faid Prefident and
Scholars of Saint JohnMaptiJi College in the
Univerfrty o^Oxf^ird, and all thofe whofe Eftate
they how have, and at the faid feveral Times
when, £sfr. had of and in the faid four Acres
of Land with the Appurtenances in the faid
Plea mentioned, from Time whereof the Me-
TCsKYrf of Man is not to the contrary, have had,
and have been ufed and accuftomed to have,
and of Right ought to have had, and ftill of
Right ought to have for themfelves, their
0^2 Farmers
228 APPENDIX.
Farmers and Tenants of the aforefaid laft-
mentioned four Acres of Land with the Ap-
purtenances, Parcel, &c. for the Time being.
Common of Fifhery in the faid River Thames y
at IVarborough aforefaid, and within the Li-
mits and Bounds in the faid Plea particularly
mentioned, every Year, at all Times of the
Year, at their free Will and Pleafure, as be-
longing and appertaining to their aforefaid
laft- mentioned four Acres of Land with the
Appurtenances, Parcel, £s?f. in Manner and
Form as the faid Francis^ fViiliam, Jobriy
Jo/eph and Samuel have in their faid Plea
3d Iflue join- alledged ; and of this they put themfelves
cd by the upon the Country, and the faid Edward doth
Defendants, fo Hkewife ; And the faid Francis, William,
John, Jojeph and Samuel, as to the faid Plea
of the faid Edward by him above pleaded
by way of Reply as to the faid Plea of
the faid Francis, H^illiam, John, Jo/eph and
Samuel, by them fecondly above pleaded in
Bar, as to the fifhing in the faid Fifhery
in the faid Jecond Count of the faid De-
claration mentioned, and the faid Fifti in
the faid fecond Count of the faid Declaration
mentioned thereout taking and carrying away,
fay, as before, that the Prefident and Scho-
lars of Saint John Baptift College in the Uni-
verfity of Oxford, and all thofc whofe Eftatc
they now have, and at the faid feveral Times
when, t^c. had of and in the faid four Acres
of Land with the Appurtenances in the faid
Plea mentioned, Parcel, (^c. from Time where-
of the Memory of Man is not to the contrary,
have had, and have been ufed and accuftomed
to have, and of Right ought to have had, and
ftiU
APPENDIX. 22.^
ftill of Right ought to have for themfelves,
their Farmers and Tenants of the faid laft-
mentioned four Acres of Land with the Ap-
purtenances, Parcel, Cfff. for the Time being
3, free Filhery in the faid River Thamesy at
JVarborough aforefaid, and within the Limits
and Bounds in the faid Plea particularly men-
tioned, every Year, at all Times of the Year,
at their free Will and Pleafure, as belonging
to the faid laft-mcntioned four Acres of Land
with the Appurtenances, Parcel, &?f. in Man-
ner and Form as the faid Francis^ fFil-^
Ham, Johriy Jo/eph znd Samuel hzw^ above in
their faid Plea in that Behalf aliedged ; and of 3^Iff««Joii*-.
this they put themfelves upon the Country, t) £ ^ t,
and the faid Edward doth fo likewife. And
the faid Francisy WilUamy Johriy Jqfeph and
Samuely as to the faid Plea of the* faid Edward
by him above pleaded by way of Reply as to
their faid Plea by them thirdly above pleaded
in Bar, as to the fiftiing in the faid Fifhery in
the faid Jecond Count of the faid Declaration
mentioned, and the faid Fifti. in the faid Je--
cond Count of the faid Declaration mentioned
thereout taking and carrying away, fay, as
before. That the faid Prefident and Scholars
of Saint John Baptijl College in the Univerfity
of Oxfordy and all thofe whofe Eftate they
now have, and at the faid feveral Times when,
t^c. had of and in the faid laft mentioned four
Acres of Land with the Appurtenances in
the faid Plea mentioned, Parcel, £s?r. from
Time whereof the Memory of Man is not to
the contrary, have had, and have been ufed
s^nd accuftomed to have, and of Right ought
to have had, and ftill of Right ought to have
CL3 for
230 APPENDIX.
for themfelvcs, their Farmers and Tenants of
the aforefaid laft-mentioned four Acres of
Land with the Appurtenances, Parcel, &c.
for the Time being Common of Filhery in
the faid River Thamesy at IVarborougb afore-
faid, and within the Limits and Bounds in the
faid Plea particularly mentioned, every Year,
at all Times of the Year, at their free Will
and Pleafure, as belonging and appertaining
to the aforefaid laft-mentioned four Acres of
Land with the Appurtenances, Parcel, &c.
in Manner and Form as the faid FranctSy fVil^
Ham, Johriy Jofeph and Samuel have abpve in
4thlflae tak- their faid Plea in that Behalf alledged j and of
en by the this they put themfelves upon the Country,
Defendants. ^^^ xht faid Edward doth fo likewife. There-
Venire vHzxd,' ^^^^^ ^^ ^^'^ ^^ ^^ ^^^ \^\^t as the aforefaid
ed. feveral other Iffues between the Parties afore-
faid above joined, the Sheriff is commanded
that he caufe to come here, in eight Days of
the Purification of the blejfed Mary, twelve, 6? f .
by whom, fcfr. and who neither, i^c. to re-
cognize, fcfr. becaufe as well, Cff f.
Whoever confiders the enormous Length of
thefe Pleadings, and the vaft Expence that
muft neceflarily have accrued to the Parties
by this Means, cannot but wifh to fee fomc
Reformation in regard to the Manner of pro-
fccuting fuch Suits, efpecially for the fake of
the Poor, who, how much foever they have
Right and Juftice on their Side, are for the
ftioft Part unable to fupport the Expence that
is ncceflary to make that Right appear to the
Satisfaftion of a Court of Judicature^
Is
\
APPENDIX. CL21
Is It not monftrous that the mere Chance of
having taught a Fifh of two Shillings Value
— - the ilopping the Courfe of a trifling Ri-
vulet the cutting off the Bough of a Tree
not worth Six-pence — - the once riding acrofs
a Ground, (sfc. Ihould give Rife to Pleadings
of lOo, 150, or 200 Sheets in Length, and
occafion an Expence of 150, or 200 I? And
yet fuch Sort of Trefpafles, or Aftions on the
Cafe grounded on fuch Matters, whereby a
Right comes in Queftion, give Rife to the mod
exfenfive and expenfive Pleadings, and often
end in the Ruin of one or other of the Parties
concerned in the Suit.
Where a poor Man happens to be the De-
fendant in fuch a Cafe, it is impofTible he
fhould be able to conteft fuch a Suit, without
rifquing the Ruin of himfelf and his Family,
if he fhould have the Misfortune to fail in his
Defence. And indeed, confidering the un-
avoidable Uncertainty that is daily experienced
in regard to Decifions upon Matters of this
Kind, it would in general be more advifeable
for a poor Man in fuch a Cafe quietly to yield
up his Right, than to conteft with a rich and
potent Adverfary, in Favour of whom the old
Adage is too often verified, viz. that Might
overcomes Right.
But how poor foever a Man may be, if he
has a Right, it is but natural for him to ftrug-
gle to fupport it as long as he is able : And
how great is the Hardfliip the Law puts him
under, when, in order to do this, it obliges
him to engage in fuch a Labyrinth of tedious
and expenfive Pleadings !
For notwithftanding'it is a Maxim in: the
Law, that every Right has a Remedy y yet, in
0^4 ordei-
12% APPENDIX.
order to make this Right appear, (upon which
the whole Succefs of the Suit depends) it muft
neceflarily, according to the prefent Mode of
Praftice, be kt forth in fpecial Pleadings for
that Furpofc, which Pleadings muft likewife
be fupported by proper Evidence. In the
mean Time the Pleadings themfelves are liable
to many Exceptions, all which muft be either
guarded againft at the firft Out-fet, or fuf-
ficiently anfwered in the Courfe of the
Suit. The leaft Omiflion or Miftake in any
of thefe, how intricate foever they may be,
pot only gives his Adverfary an Advantage
over him, but often renders his Suit abortive.
And thus, befides the Difappointment, the
whole Cofts of fuch a Suit are thrown upon
him, and he is perhaps crulhed and ruined for
ever.
Nor is the Cafe lefs h^rd upon him,, even
fuppofing he has the good Fortune to get the
better of his Adverfary, and fucceed in the
Suit ; for the extra Cofts, which are not al-
lowed upon a Taxation, and the Client is thcre-r
fore obliged to pay out of his Pocket, are in
fuch a Suit very confiderable, and often amount;
to more than the Thing in Difpute is; worth j
und thus the Remedy becomes worfe th^n the
Difeafe.
So that after all, fucceed or not fucceed, a
poor Man in Cafes of this Sort, as I obferve4
before, had better quietly yield up hig Right,
than conteft with a powerful and litigious
Adverfary, who is determined to have hi*
Willj though he tramples on the Rights and
]Liberties of his Neighbour. What then Ihall
w$ f^y IP this boafte4 Maxim of the Law,
APPENDIX, !i33
which the Rich indeed may avail themfelves
of, but the Poor in many Cafes are more like-
ly to be ruined than benefited by ?
Formerly, as has been obferved in another
Place, a Man could plead but one fingle Plea,
the Law not allowing a Duplicity, much lefs
a Multiplicity of Pleas in the fame Caufe,^
Such Plea indeed might be either Special or
General 5 but if a general Plea was thought
advifeable, the Defendant could not give every
ipecial Matter, how much foever it might
tend to fupport his Right, in Evidence upon
the Trial ; and if he pleaded one fingle rlea
ipecially, it too often failed hini.
In order to remedy the Inconyeni^ncles
arifing from this Reftriftion, the A^ of the 4
^ 5 ^m^ was n)ade, whereby, by teave of
the Court, a Man may plead as many feveral
pleas as his Attorney thinks proper for his
Pefence, But how much this Libertv is ca**
pable of being abufed, and the dreadful Con-
fequence^ that muft often refult from it with
regard to poor People, may be feen by a Re-
view of the foregoing Pleadings, ^pd others
more extenfive in our Law Books, grounded
upon as trivial Circumftances, and cannot but
be alarming to every confidering and confcien-
tious Man,
Let us fee, therefore, if no Remedy for this
Eyil c^n be found ^ an Attempt, I confefs, I
had no Thoughts before of running into, — -^
It was the Wifh of fome Men, above a
hundred Years ago, that the General Iflue might
l?e allowed io ;^11 Cafes, and that the Special
Matter
S34 APPENDIX.
Matter might be given in Evidence on the
Trial; and this fcems to be the only Method
of redrefling the Grievance fo long complained
of. But it muft be granted that under a ge-
neral Law for this Purpofe, many Inconveni-
ences might arife, efpecially where the Plain-
tiff does not know what fuch Special Matter is,
by which the Defendant intends to avail him-
felf; in that Cafe the Plaintiff would undoubt-
edly lie under great Difficulties to guard againft
fuch Evidence. This Inconveniency, how-
ever, (as is conceived) might be eafily re-
moved.
Every Age gives Light to another, by fome
new Thing or Method introduced and brought
into Praftice. With refpeft to the prefent
Subjeft, let us take an Example from the Sta-
tute of the 2d of Geo. 2. -with regard to the
Allowance of fetting off of mutual Debts.
This Statute enafts that mutual Debts may be
fet off one againft the other, either by being
pleaded in Bar, or given in Evidence on the
General IfTue, on Notice being given of the
particular Sums intended to be/et off^ and on
what ADcount due, Ssfr . But before the mak-
ing this Statute, fuch Debts were to be pleaded
fpecially in Bar j and this new, though late
Method of fetting off mutual Debts on T:he
General IfTue, oxi giving Notice oi {vlC^i Set-off,
was found fo beneficial, that by the 8 G. 2.
c. 24. it was made perpetual ; but without
fuch Notice fuch Evidence is not to be re-
ceived^
The Intent of ordering fuch Notice to be
given of the particular Sums intended to be
let off on pleading the General IfTue, was, that
' the
APPENDIX. 2J5
the Plaintiff might know the Nature of the
Defendant's Clnims thereby, and prepare to
controvciT fiich Drniands of the Detendant,.as
v/ell as to prove his own.
Now in order to reduce into Praftice a fi-
milar Method in Aftions of Tre/pafs and on
the Cafe, wKere a Juftification is raquifite, let
us for Fxiimple fuppofe, that on pleading the
General Iflue in the foregoing Cafe, fuch a
Notice as the following had been to be given
the Plaintiff of the Special Matter the Defend-
ant intended to give in Evidence on the Trial •
of the Caiife, inftead of pleading thofe Spe-
cial Matters in that formal Manner in which
they appear, viz.
^f*^ ......^ ^ ^ake Notice that the fever al
Defendants intend to give in Evidence on the
Trial of the Ifj'ue in this Caife^ that the Pre-
ftdent and Scholars of Saint John the Baptifl:
College in the Univerftty of O. are feifed in
Fee of certain Lan4s in the Parijh of W, in
the faid County^ and being fo feifed have for
themfelveSi their Farmers and Tenants y a Right
to fijh in the faid Fijhery in the Declaration
mentionedy at all Times, at their free Will
and Pleafure^ as belonging to their Lands^
£s?r. and that the faid Defendants as their
Servants y and by their Command y did fifh in
the faid Fifhery in the faid Declaration men-
tionedy and under whom the faid Defendants
intend to juftify their doing the fame in Man^
fiery &c. as they lawfully might.
Alfo that the faid Prefident and Scholars y being
fo feifed as abovCy demifed the faid Lands
whereof y &?r. to one Richard B[' of the faid
Parijh
3j6 APPENDIX.
Parijh of W. and that the Jaid Defendants^
as Servants of the f aid Richard B. and bj
his Commandy did fifh in the Jaid Fifhery in
the Jaid J^eclaration mentioned^ and under
whom the Jaid Dejendants aljo intend to jujiify
, their doing the Jame in Manner j ^c. as they
lawfully might 'y which Jaid Jeveral Rights^
or one of them, with Juch Matters as relate
thereto y which /hall be necejfary and Jufficient
to juflify and defend the Jaid Defendants againfi
the Right and Damages of the Plaintiffs thefe
Defendants /ball injifi on giving in Evidence
en their Behalf putjuant to, l^c. Dated
the Day of 1765.
By fuch a Notice as this the Plaintiff would
have been let into the Knowledge of what the
Defendants intended to have availed themfelves
of, and might have prepared himfelf therefrom
to controvert their Right, by proving his
own, by that Grant of the Filhery under which
he claimed the Right, to the Exclufion of the
Defendants, and thofe under whom, they claim-
ed, with as much Benefit as by their Pleas;
for what indeed is the Nature of the Plea it-
felf, but a Notice of a Juftification under a
certain Right, which the Plaintiff by his Re-
plication denies them to have, and thereby
puts that Point in Iffue, though in a more for-
mal Manner ? Would not the whole Merits
of the Caufe have come before the Court on
the Trial with an equal Degree of Certainty,
and that upon an Ilfue of a very moderate
Length, /. e. 10 or 1 2 Sheets ? Would not
the Counfel have been as well enabled to have
jirgued on the Merits upon fuch ^ Notice, as
upon
APPENDIX. 2^
iipon thofe Special formal Pleadings ? Would
not the fame Evidence have been required to
determine the Faft ? Would not the Judge
and Jury have been capable of hearing and
determining upon the Merits as well, if not
better ? For here a greater Degree of Latitude
might have been given to have let in the Par-
ties to the Proof of every Matter tending to
fliew on whofe Side the Merits were, and the
Court might have given their Judgment with
a greater Degree of Equity, than when tied
down to the ftridt Rules of Pleading, which
frequently afford a great Number of Excep-
tions that are generally taken at the Bar, and
much Time is often fpent on fettling thofe
Points. The fame may be faid of other Cafes
of the fame Nature; for this is mentioned Ex^
emfli Gratia only.
How often does it happen, in fuch Cafes,
that through one or the other of the Parries
failing in their Pleadings to lay hold on fome
Matter that was neccflary, that it proves his
Overthrow, when it has been apparent to the
Court that the Merits of the Caufe were for
him : And if fo, is this owing to any Defe<5t
in the Law itfelf, which is defirous that every
Man Ihould have Juftice done him ; or is it
through the Confinement to that ftrift Rule,
or; Mode of pleading which is now praftifed,
and to the many Exceptions fuch Pleadings
are liable to ?
Then as to the Reafonablenefs and Propriety
of it, an Example may be drawn fronri Suits
in Ejeftment. Every Declaration in Ejedt-
ment is grounded on a fuppofed Trefpafs, by
which a Right or Title comes in Queftion ;«
yet
238 A P P E N D I X.
yet here are no Special Pleadings 5 nay hcit
by the common Rule the Defendant mufi plead
the General IjfuCy and confefs the Plaintiff's
Leafe and Entrjy and the Oufter by him-
itXiy and infifl: on his Title only, and the
Caufe is determined upon the Evidence of a
Right or Title, which is produced on the Trial
by the one or the other of the Parties, and
what is this but giving the Special Matter ifi
Evidence ? Why not fo in other Anions in
Trefpafs ? If the PlaintiflF has a Right, ought
he not to fhew it ? If the Defendant has,
where is the Rcafon of his pleading it (peciaily,
(which only gives the Plaintiff an Opportunity
of taking Exceptions to it) and fhall not be
allowed to give it in Evidence on the Trial
without ?
Another Example of the Reafonablenefs of
fuch a Reformation, may be drawn from the
Pleadings in criminal Cafes: Here every De-
fendant is obliged to plead generally Not guilty
to put himfelf upon his Country, yet notwith-
ftanding fuch General Plea, is not every fa-
vourable Circumftance that can be alledged for
him admitted and received by the Court?
Why might not the fame Thing be done on
an Iflue in Faft in Cafes of Trefpals arid on
the Cafe in civil Matters where a Right and
Property, C^c. is concemedyr as well as upotfi
an Indidment ?
It may reafonably be imagined that, was this
to be allowed, an Attorney, in order to lay
hold of every Matter that might be thought
advantageous to his Client in fuch Cafes, would
be very prolix and copious in drawing fuch
Notices 5 but to prevent any Degree of Pro-
lixin
V
APPENDIX. 23^
lixity, or too great Copioufnefe thereby, it
might be ordered, that the Secondaries or
Clerk of the Rules ftiould, from the Attornies
Inftruftions, reduce fuch Notices into a Rule
of Court, in a very conclfe Manner, with
fonne general Words to let in all relative Mat-
ters in the Nature of a Side-Bar Rule ; or that,
fuch Inftruftions fhould be firft figned hf,
Counfel as neceflary, and then drawn up into
a Rule, which Rule fhould be ferved fomc
certain Days before, and the Service proved
on the Trial; Copies of fuch Rules being af-
fixed to the Briefs, would be neceflary Inftruc-
tions for the Counfel to plead from. Here no
Room for Exceptions would be given, and
however unneceflary fome Part of the Rule /
iT>ight be, the Counfel would foon fee what
really tended to the Merits of the Caufe.
It may be objefted, that itis impoflible to.
reduce fuch a Method into general Pradlice 5
for in Aftions of Covenant, or where an Ac-
tion is brought againfl: an Executor who has
one or more Judgments to plead, (which be-
ing Matters of Record mult be pleaded fpe-
cially at large) or Bonds paid, &c. in Dif-
charge of Affets, and fuch like Cafes it can-
not be admitted with any Conveniency. la
fome Cafes it may be inconvenient, at leaft
there may be at prefent an Appearance of
fome Inconveniences that would arife from it
in particular Cafes ; but all this is no Reafon
why it may not be allowed and ufed in Ac-
tions of Trefpafs and on the Cafe where the
Matter will bear it.
However, it is not meant that Special Plead-
ings fliould be entirely thrown afide; all that
is
140
AF^PElNDiX.
is contended for, is, that the General Iflbf^
with a Liberty of giving the Special Matter
in Evidence upon the Trial, may rea(bnably
and with Propriety be allowed, in fbch Cafes
as inftanced before, in order to give the poorer
Sort of Clients an Opportunity (0 avail them-^
felves by an eafy and cheap Method, rather
than by that tedious, perplexed, and expenfive
one of pleading every Matter fpecially, in Juf-
tification or Bar, as in the foregoing and fol->
lowing Ifiues.
The following Iflue is in Replevin, the Na*
ture of which Adion, moil of all others, gives
Room for long and tedious Pleadings in Mat-
ters of as trivial a Concern as the preceding
one, as may be eafily feen thereby ; and the
Queilion is, if fuch Pleadings cannot be fup-
plied by the like or by fome other Method. If
fo, fuch a Caufe might be tried upon an Iflue
of lo or 12 Sheets, inftead of one of above
130, as this is.
Though here are two Precedents only gi-
ven, as very extraordinary ones in fuch Cafes,
yet I believe it will be granted by every ex-
perienced Practitioner, that thefe are of a mo-
derate Length, confidcring the great Number
of others mofl: frequently ufed in Actions of
the like Nature.
Hilary
[ 241 ]
VMHeVVHHMBHHBIMiMHBBBBMnBIBMI*''''*''''*'*'*'^''^
Dickins.
Hilary Term in the Thirty- third Year of
the Reign of King George the Second.
Berks.irvMiOyifiS C. and George Di
Si. \ X. were fummoned toanfwcr Jdam
Lujh of a Plea wherefore they took the Cattle
of the faid Adam Lujh^ and unjuftly detained
the fame againft Gages and Pledges, £5?^. and
whereupon the faid Adam Lujk^ by A. B his
Attorney complains, that the faid Thomas and
George^ on the twenty-feventh Day of Decem-
ber in the Year of our Lord one thoufand
feven hundred and fifty-eight, at the Parifli of
Saint Leonard^ in W, in the faid County, in a
certain Place there galled the Old Moor^ took
the Cattle, to wtt, eight Sheep of the faid
Adam Lujh^ and unjuftly detained them againft
Gages and Pledges, until, ^c. Whereupon
the faid Adam Lujh fays that he is injured, and
hath foftained Damage to the Value of twenty
Pounds •, and therefore he brings Suit, i^c.
And the faid Thomas and George^ by R. B, Cognizance^
their Attorney, come and defend the Wrong
and Injury when, i^c. and as Bailiffs of the
Mayor, Burgeffes and Commonalty of the Bo-
rough oi PF. in the County of Berks well
acknowledge the taking of the faid eight
Sheep in the faid Place, in which, (^c. be-
caufe they fay that the faid Place called the
R Old
242 APPENDIX.
Old McoTy in which, i^c. long before the {aid
Time when, CfXr. and at the laid Time when,
tfr. was, and ftill is a certain large Wafte ct^
C ommon : allure, called and known by the
feveral Names of the Old Mocr, otherwife
Portmans MooVj otherwife Portmaris Meadj
containing by Eftimation a large Number of
Acres, to wit, forty Acres, lying jind being
at JV. aforefaid in the County of Berks afore-
faid, and lying and being within the Manor of
fV. in the County oi Berks aforefaid, and Par-
cel of that Manor j and that the faid Mayor,
BurgefTes and Commonalty of the Borough of
IV. aforefaid, long before the faid Time when,
6Xf. and at the faid Time when, i^e. were
and ftill are feifed in their Demefne as of Fee
of and in the faid Manor of JV. whereof, ^c.
with the Appurtenances, and being fo thereof
feifed, becaufe that the faid eight Sheep at the
faid Time when, Csff. were in the faid Place
in which, (^c. Parcel, &?f. eating up, feed-
ing and depafturing on the Grafs there then
growing, and doing Damage there to the faid
Mayor, Burgcfles and Commonalty of the
Borough of IV. aforefaid, they the faid Thomas
and George^ as Bailiffs of the faid Mayor, Bur-
gefTes aod Commonalty of the Borough of fV,
aforefaid, well acknowledge the taking of the
faid eight Sheep in the faid Place> in which,
i^c. and juftly, (sc. as a Diftrefs for the faid
Damage fo by them there done and doing,
' tfr. and this they are ready to verify ; Where-
fore they pray Judgment, and a Return of the
faid eight Sheep, together with their Damages,
t?r. according to the F6rm of the Statute in
fuch Cafe made and provided, to be adjudged
to
APPENDIX- 243
to them, fe?f. And for further Cognizance as
to the taking of the faid eight Sheep ia the
faid Declaration mentioned, the faid Thomas
and G cor gey by Leave of the Court here for
this Purpofe firfl: had and obtained, according
to the Form of the Statute in fuch Cafe made
and provided, as Bailiffs of the Mayor, Bur-
geffes and Commonalty of the Borough of IV.
in the County of Berksy well acknowledge the
taking of the faid eight Sheep in the faid Place, '
in which, i^c. becaufe they fay that the faid
Place called the Old Moor in which, i^c. long
before the faid Time when, ££?r. and at the
fame Time when, ^c, was and ftill is a cer-
tain large Wafte or Common' Failure, called
or known by the feveral Names of the Old
Moory otherwife Portman's Moor^ otherwifii
JPortman's Meady containing by Eftimation a
large Number of Acres, to wit, forty Acres,
fituate, lying and being at IV. aforefaid, in the
County of Berks aforefaid, and that the faid
Mayor, Burgeffes and Commonalty of the
Borough of PV, aforefaid, long before the faid
Time when, Cs?r. and at the faid Time when,
^c, were and ftill are feifed in their Demefne
as of Fee of and in the faid Wafte or Common
Pafture in which, ^c. with the Appurtenan-
ces,- and being fo thereof feifed, becaufe that
the faid eight Sheep, at the faid Time when,
(j}c. were in the faid Place in which, tfr.
eating up, feeding and depafturing on the Grafs
there then growing, and doing Damage there
to the faid Mayor, Burgeffes and Commonalty
of the Borough of I'V. aforefaid, they the faid
Thomas and Georgey as Bailiffs of the faid .
Mayor, BurgffTes and Commonalty of the
R 2 Borough
^4+
«f P P E X D I X.
Borough oi fV. aforefaic?, well acknowledge the
talci-^^^ of the uid eight Sheep in thefaid Place
in which, (s'c and jullly, t^c. as a Diftrcis
for the uia Damage fo by them there done
and doing, feV. and this they arc ready to
verify i Wherefore they pray Judgment, and
a Rcturri of the faid eight Sheep, together
with their Damages, isc, accorddng to the
Form of the Statute in fuch Cafe made and
provided, to be adjudged to them, tfr.
Pica. Ajid the faid ^dam Lujb, as to the faid
Cognizance of the faid Tbcmas and George by
th ern nrii above made as to the taking of the
faid eight Sheep of rhe faid Declaration mention-
ed, fays, That they the faid Tbonias and GeorgCy
by rcafon of any Thing therein alledged, ought
not, as Bailiffs of the faid Mayor, Burgeffes
and Commonalty, to acknowledge the taking
of the faid eight Sheep in the faid Place called
the Old Moor, in which, Csfr. to be juft, be-
cauTt he fays that long before the faid Time
wh>;n, (Sc. one H^illia7n F. was and yet is
felil'd of the faid Place called the Old Mpor,
in which, cffr. in the faid Parifti of. Saint
Leonard in IV. in his Demefne as of Fee, and
being fo feifed thereof, he the faid William
afterwards, that is to fay, on the twentieth Day
of December in the faid Year of our Lord one
thoufand kvtn hundred and fifty-eight, at fV.
aforcfaid, gave Licence to the faid Adam Lujh
to put his Cattle aforefaid into the faid Place
called the Old Moor in which, i^c. to depaf-
ture the Grafs there then growing, by virtue
of which Licence the faid Adam LuJh after-
wards, and before the faid Time when, i^c.
put the faid Cattle into the faid Place in which,
APPENDIX.
^€. to depafture the Grafs in the fame there
growing, which faid Cattle were in the faid
Place in which, ^c, on the Occafion afore-
faid depafluring the Grafs there then growing,
until the faid Thomas and George on the twen-
ty-feventh Day of December in the faid Year
one thoufand feven hundred and fifty-eight,
at the faid Parifh of Saint Leonard in IV.
the faid Place, in which, ^c. took the faid
Cattle of the faid Adam Lujhy and unjuftly de-
tained the fame againft Gages and Pledges
until, &fr. in Manner and Form as the faid
Adam Lujh hath above thereof complained
againft them; Without this, that the faid Place*
called the Old Moor in which, ^c, at the faid
Time when, &c, was Parcel of the Manor of
JV, in the faid Cognizance mentioned, as the
faid Thomas and George have in their faid Cog-
nizance above alledged; and this the faid Adam
LuJIj is ready to verify: Wherefore in as much
as the faid Thomas and George have above
acknowledged the taking of the faid eight
Shepp in the faid Place called the Old Moor
in which, ^c. the faid Adam LuJh prays Judgr
ment, and his Damages by reafon of the tak-
ing and unjuft detaining of the fame to be
adjudged to him, ^c. And for further Plea
in Bar to the faid Cognizance of the faid Tbo--
mas and George by them firft above made as
to the taking of the faid eight Sheep in the
faid Declaration mentioned, the faid Adam
LuJhy by Leave of the Court here to him for
this Purpofe granted, according to the Form
of the Statute in fuch Cafe lately made and
provided, fays, That the faid Thomas and
George, by reifon gf any thing therein alledgcd,
■R3 as
^45
^^46 A P P E N D I X.
as B/ili^s of the faid M^yor, Burgefles anj
Commonalty, ought nor to acknowlrdge the
taking of the faid eight Sheep in the faid Place
called the Old Moor^ in which, fcfr. to be juft,
brrcaufe he fays, that long before^ and at the
id d Time when, fffr. one fViUam F. was,
and ftill is feifcd of and in diverfe, to wit,
fifteen Acres of Land, with the Appurtenan-
ces, lying ani be:ng in a certain Clofe cal-
Ird PcrtmarCs Fields otherwjfe Saint Jobrii
Fields lying at IV. aforefaid, in his Demcfne
»as of ^ee, and that the faid fV. F. and all
thole whofc Efiate he now hath, and at the
faid Time when, Csfr. had of and in the faid
fifteen Acres of Land with the Appurten'^nces,
from Time whereof the Memory of Man is
not to the contrary, have had, and have ufcd
and been accullomed to have, and the faid
IV. F. ftill of Right ought to have for himfelf
and themfelves, his and their Farmers and
Tenants, Occupiers of the faid fifteen Acres
of Land with the Appurtenances, Common of
Pafture in and upon the faid Place called the
0/d MooKy in which, fcfr. for all his and their
commonable Sheep levant and couchant upon
th^ faid fifteen Acres of Land with the Ap-
purtenance^, every Year from the Feaft of All
Saints^ accord in £5 to the Old Stile, until the
'Feaft of the Purification of the Blejfed Virg:n
Mary then next foliowinpr, according to the
fame Stile, as to the faid fifteen Acres of Land
with the Appurtenances belong ng ancj apper-
taining ; and the faid IV. F. being fo ieifed
thereof before the faid Tinic when, ^c. to
wit, on the twentieth Day uf September in the
Year of our Lord one thoufand fcven hundred
aud
APPENDIX. 247
and fifty-fix, according to the prefent Stile,
at M'^. aforefaid, demifed the faid fifteen Acres
of Land with the Appurtenances (amongll
oiher Things) to one Job PV. to have and to
hold the fame to the faid Job W. from the
Feaft of Saint Michael the Archangel i\vn next
enfuing, according to the prefent Stile, for
and during one whole Year thence next fol-
lowing, and fo from Year to Year for fo long .
Time as it Ihould pleafe the faid IV. F. and
Job W. by virtue of which faid Demife the
laid Job iV. afterwards, and before the faid
Time when, £5?^. to wir, on the thirtieth Day
of September in the Year laft aforefaid, accord-
ing to the prefent Stile, entered into the faid
fifteen Acres of Land with the Appurtenances,
and became and was poflefled thereof, and
continued fo poffcfled thereof until and upon
the thirtieth Day ot Oilober in the Year of our
Lord one thoufand fcven hundred and fifty-
eight, according to the prefent Stile, and be-
ing fo poffeflcd thereof, he the faid Job W.
afterwards, (to wit) on the faid thirtieth Day
of 05fober one thoufand feven hundred and
fifty-eight, according to the prefent Stile, at
IV. aforefaid, demiicd the faid fifteen Acres
of Land with the Appurtenances to the faid
Adam Lu(b^ to hold the fame to him from the
Feaft of All Saints^ according to the Old Stile
then next enfuing, until the Feall of the Pu-
rification of th€ BIe£ed Virgin Mary then next
following, according to the fame Stile, by
virtue of which faid laft-mentioned Demife the
faid Adam Lujh afterwards, and before the faid
Time when, (^c. to wit, on the thirteenth Day
of November in the Year of our Lord one
R 4 thoufand
ft4« APPENDIX.
thoufand feven hundred and fifty-eight, en"
tered into the faid fifteen Acres of Land with
the Appurtenances, and became and was pof-
fefled thereof, and being fo poffefled thereof
he the faid Jdam Lujhy after the faid Feaft of
Jll Saints^ according to the Old Stile in the
Year laft aforefaid, and before the faid Time
when, i3c. to wit, on the fame Day and Year
in the fad Declaration mentioned, put the faid
eight Sheep, then being the commonable Sheep
of the faid Adam Lujhy and levant and couchant
in and upon ' the faid fifteen Acres of Land
with the Appurtenances, into the faid Place in
which, iic. to feed upon the Grafs there grow-
ing, and to ufe his faid Common of Pafture
there, and the faid eight Sheep were depaf-
turing in the faid Place in which, i^c. on that
Occafron, as they lawfully might, till the faid
^Thomas and George^ before the Feaft of the
Purification of the Blejjed Virgin Mary then
next foliowing according to the Old Stile, to
wit, at the faid Time when, (£€. of their own
Wrong took the faid eight Sheep in the faid
Place in v/hich, ^c, and unjuftly detained the
fame againft .Gages and Pledges until, fcff.
in Manner and Form as the faid Adam Lujh
hath above thereof complained againft them;
and this he is ready to verify : Wherefore in
as much as the faid Thomas and George have
above acknowledged the taking of the faid eight
Sheep in the faid Place in which, i^c, the faid
Adam Lujh prays Judgment, and his Damages
by reafon of the taking and unjuft detaining
of the fame to be adjudged to him, &?r. -And
for further Plea in Bar to the faid Cognizance
of the faid 'Thomas and Gecrge by them firft
above
APPENDIX.
above made as to the taking of the faid eight
Sheep in the faid Declaration nrientioned, the
faid Adam Lujhy by like Leave of the Court
here to him for this Purpofe granted, accord-
ing to the Form of the Statute in fuch Cafe
lately made and provided, fays. That the faid,
Thomas and George^ by reafon of any thing
therein allcdged as Bailiffs of the faid Mayor,
Burgefles and Commonalty, ought not to ac-
knowledge the taking of the faid eight Sheep
in the faid Place in which, ^c. to be juft,
becaufe he fays, that true it is that the faid
Place called the Old Moor in which, iSc. long
before, and at the faid Time when, fafr. was
and ftill is a certain large Wade or Pafture
called and known by the fevcral Names of the
Old Moor^ otherwife Portman's Moor, other-
wife Pcrtmans Meady containing by Eftima-
tion a large Number of Acres to wit, forty
Acres lying and being at IF. aforefaid in the
County of Berks aforefaid, as the faid Thomas
and George have in their faid Cognizance-
above alledged j But the faid /Jdam Lujh fur-
ther fays, That long before, and at the faid
Time when, &c. one /^, F. was, and ftill is
feifed of and in a certain Meffuage and diverfe,
to wit, one hundred Acres, of Land with the
Appurtenances, fituate, lying and being at IV.
aforefaid, in his Demefne as of P>c, and that
the faid IV. F. and all thofe whofe Eftate he
nov/ hath, and at the faid Time when, (Sc.
had of and in the faid Mefluage and Land with
the Appurtenances, from Time whereof the
Memory of Man is. not to the, contrary, have
had, and have ufed and been accuftomed to
have, and the faid IV. F. ftill of Right ought
to
249
250
APPENDIX.
to have for himfelf and themfelves, his and
their Farmers and Tenants of the faid Meffu-
age and Land wifh the Appurtenances, the
fole and feparate Failure of the faid Place in
which, fcff. every Year from the Feall of Jll
Saints according to the Old Stile, until the
Feaft of the Purification of the Blejfed Firgin
Mary^ according to the fame Stile then nexc
following, to be had and taken with Sheep as
to the faid MefTuage and Land with the Ap-
purtenances belonging and appertaining ; and
the faid IV. F. being fo i'eifed of the faid Mef-
fuage and Land with the Appurtenances, af-
ttrwards, and before the faid Time when, ^c.
to wir, on the twentieth Day of September in
the Year of our Lord one th )uland fcvc-n hun-
dred and fifty-fix, according to the prefenc
Stile, at IV. aforcfaid, demiled the faid Md-
fuage and Land with the Appurt nances to one
Job fV. to hold the fame to him from the
Feaft of Saint Michael the Archangel then nexc
following, according to the prefcnt Siile, for
one whole Year then next to come, and fo
from Year to Year for fo long Time as it
Ihould pleafe the faid fV. F. and Job IV. by
virtue of which faid Demife the faid Job
W. afterwards, and after the Feaft of Saint
Michael the Archangel in the Year of our Lord
one thoufand {tv^vx hundred and fifty-fix, ac-
cording to the prefent Stile, and before the
faid Time when, ^c. (to wit) on the thirtieth
Day of September in the Year laft aforefaid,
according to the prefent Srile, at W. aforcfaid,
entered into the laid Mefiuage and Land wirh
the Appurtenances, and became and was, and
continually from thenceforth hitherto hath
been.
APPENDIX. aSi
been, and ftill is poflefled thereof, and being
fo poffeffed thereof, he the faid Job W. after-
v/ards, and before the faid Time when, i£c.
(to wit) on the twentieth Day of December in
the Year of our Lord one thoufand fevcn hun-
dred and fifty-eight, according to the prefent
Stile, at W. aforefaid, gave Leave and Li-
cence to the faid Adam Lujh to put the faid
eight Sheep into the faid Place in which, £2?r.
to feed upon the Grafs there growing, by vir-
tue of which faid Licence the faid Adam LuJh
afterwards, and after the Feaft oi All Saints in
that Year, according to the Old Stile, and
before the Feaft of the Purification of the Blef-
Jed Virgin Mary then next following, accord-
ing to the fame Stile, and before the faid Time
when, &fr. (to wit) on the Day and Year in
the faid Declaration mentioned, put the faid
eight Sheep into the faid Place in which, ts?r.
to feed tipon the Grafs there growing, and the
faid eight Sheep were depafturing in the faid
Place in which, ^c. on that Occafion, as they
lawfully might, till the faid Thomas and George
at the faid Time when, &?f. of their own
Wrong took the faid eight Sheep in the faid
Place in which, fcfr. and unjuftly detained the
fame againft Gages and Pledges until, i^c.
in Manner and Form as the faid Adam. Lujh
hath above thereof complained againft them ;
and this he is ready to verify : Wherefore in
as much as the faid Thomas and George have
above ackowledged the taking of the faid
eight Sheep in the faid Place in which, fcfr.
the faid Adam Lup prays Judgment, and his
Damages by reafon of the taking and unjuft
detaining of the fame to be adjudged to him,
;a
242 APPENDIX,
Old Mcory in which, ^c. long before the faid
Time when, i^c, and at the laid Time when,
t?r. was, and ftill is a certain large Wafte ct^
( ommon I afture, called and known by the
feveral Names of the Old Moer, otherwife
Portmans Moor^ otherwife Portmaris Mead,
containing by Eftimation a large Number of
Acres, to wit, forty Acres, lying ^ind being
at W. aforefaid in the County of Berks afore-
faid, and lying and being within the Manor of
/^. in the County of 5^r^j aforefaid, and Par-
cel of that Manor ; and that the faid Mayor,
BurgefTes and Commonalty of the Borough of
W. aforefaid, long before the faid Time when,
Cfff. and at the faid Time when, ^e. were
and ftill are feifed in their Demefne as of Fee
of and in the faid Manor of W. whereof, ^c.
with the Appurtenances, and being fo thereof
feifed, becaufe that the faid eight Sheep at the
faid Time when, i£c. were in the faid Place
in which, &?r. Parcel, fc?f. eating up, feed-
ing and depafturing on the Grafs there then
growing, and doing Damage there to the faid
Mayor, Burgcffes and Commonalty of the
Borough of IV. aforefaid, they the faid Thomas
and George J as Bailiffs of the faid Mayor, Bur-
gefles aod Commonalty of the Borough of fV.
aforefaid, well acknowledge the taking of the
faid eight Sheep in the faid Place> in which,
(^c. and juftly, ^c. as a Diftrefs for the faid
Damage fo by them there done and doing,
' fcfr. and this they are ready to verify ; Where-
fore they pray Judgment, and a Return of the
faid eight Sheep, together with their Damages,
^c. according to the F6rm of the Statute in
fuch Cafe made and provided, to be adjudged
to
APPENDIX.. 243
to them, fe?f. And for further Cognizance as
to the taking of the faid eight Sheep ia the
faid Declaration mentioned, the faid Thomas
and George^ by Leave of the Court here for
this Purpofe firft had and obtained, according
to the Form of the Statute in fuch Cafe made
and provided, as Bailiffs of the Mayor, Bur-
gefles and Commonalty of the Borough of IV.
in the County of Berks y well acknowledge the
taking of the faid eight Sheep in the faid Place, '
in which, fcfr. becaufe they fay that the faid
Place called the Old Moor in which, t^c. long
before the faid Time when, Csfr. and at the
fame Time when, ffff. was and ftill is a cer-
tain large Wafte or Common Pafture, called
or known by the feveral Names of the Old
Moor^ otherwife Portman's Moor, otherwifei
Portman's Meady containing by Eftimation a
large Number of Acres, to wit, forty Acres,
fituate, lying and being at tV. aforefaid, in the
County of Berks aforefaid, and that the faid
Mayor, BurgefTes and Commonalty of the
Borough of IV. aforefaid, long before the faid
Time when, i^c, and at the faid Time when,
&?r. were and ftill are feifed in their Demcfne
as of Fee of and in the faid Wafte or Common
Pafture in which, ^c. with the Appurtenan-
ces,, and being fo thereof feifed, becaufe that
the faid eight Sheep, at the faid Time when,
i^c. were in the faid Place in which, fefr.
eating up, feeding and depafturing on the Grafs
there then growing, and doing Damage there
to the faid Mayor, BurgefTes and Commonalty
of the Borougli of I'V, aforefaid, tlicy the faid
Thomas and George^ as Bailiffs of the faid .
Mayor, BurgcfFes and Commonalty of the
R 2 Borough
24+ ?% P P E N D I X.
Borough of W. aforefaid, well acknowledge the
taking of the faid eight Sheep in the faid Place
in which, i^c, and juftly, (Sc. as a Diftrefs
for the laid Damage fo by them there done
and doing, isc. and this they are ready to
verify J Wherefore they pray Judgment, and
a Returri of ttie faid eight Sheep, together
with their Damages, ISc. according to the
Form of the Statute in fuch Cafe made and
provided, to be adjudged to them, Cs?r.
Plea. A.nd the faid Adam Lujh^ as to the faid
Cognizance of the faid "Thomas and George by
them firit above made as to the taking of the
faiid eight Sheep of the faid Declaration mention-
ed, fays, That they the faid Thomas and GeorgCy
by reafonof any Thing therein alledged, ought
not, as Bailiffs of the faid Mayor^ Burgeffes
and Commonalty, to acknowledge the taking
of the faid eight Sheep in the faid Place called
t\it Old Moor^ in which, £5?^. to bejuft, be-
cause he fays that long before the faid Time
wh^n, ^c. one V/tlliam F. was and yet is
felled of the faid Place called the Old Mpor,
in which, ^c. in the faid Parifh of. Saint
Leonard in fV. in his Demefne as of Fee, and
being fo feifed thereof, he the faid William
afterwards, that is to fay, on the twentieth Day
of December in the faid Year of our Lord one
thoufand feven hundred and fifty-eight, at fV.
aforefaid^ gave Licence to the faid Adam Lujh
to put his Cattle aforefaid into the faid Place
called the Old Moor in which, (^c. to depaf-
ture the Grafs there then growing, by virtue
of which Licence the faid Adam Lujh after-
wards, and before the faid Time when, iic.
put the faid Cattle into the faid Place in which,
APPENDIX.
^€. to depafture the Grafs in the fame there
growing, which faid Cattle were in the faid
Place in which, i^c. on the Occafion afore-
faid depafturing the Grafs there then growing,
until the faid Thomas and George on the twen-
ty-feventh Day of December in the faid Year
one thoufand feven hundred and fifty-eight,
at the faid Parifh of Saint Leonard in IV.
the faid Place, in which, £sfr. took the faid
Cattle of the faid j^dam Lu/h, and unjuftly de-
tained the fame againft Gages and Pledges
until, fcfr. in Manner and Form as the faid
Adam Lujh hath above thereof complained
againft them; Without this, that the faid Place*
called the Old Moor in which, ^c. at the faid
Time when, &?^. was Parcel of the Manor of
JV. in the faid Cognizance mentioned, as the
faid Thomas and George have in their faid Cog-
nizance above alledged; and this the faid Adam
LuJJj is ready to verify: Wherefore in as much
as the faid Thomas and George have above
acknowledged the taking of the faid eight
Shepp in the faid Place called the Old Moor
in which, t^c. the faid Adam Lujh prays Judgr-
ment, and his Damages by reafon of the tak-
ing and unjuft detaining of the fame to be
adjudged to him, ^c. And for further Plea
in Bar to the faid Cognizance of the faid Tho-^
mas and George by them firft above made as
to the taking of the faid eight Sheep in the
faid Declaration mentioned, the faid Adam
Lufhy by Leave of the Court here to him for
this Purpofe granted, according to the Form
of the Statute in fuch Cafe lately made and
provided, fays, That the faid Thomas and
George^ by reafon gf any thing therein alledged,
R3 as
245
246 APPENDIX.
as BailifTs of the faid Mjyor, Burgefles anJ
Commonalty, ought nor to acknowledge the
taking of the faid eight Sheep in the faid Place
called the Old Moor, in which, (^c. to be juft,
bcrcaufe he fays, that long before, and at the
fad Time when, i^c. one PVilliam F. was,
and ftill is feifed of and in diverfe, to wit,
fifteen Acres of Land, with the Appurtenan-
ces, lying ani being in a certain Clofe cal-
led Portman's Fields othcrvvife Saint John's
Fields Ivinc at IV, aforefaid, in his Demtfne
»as of ^ee, and that the faid fV. F. and all
thole whofe Efiate he now hath, and at the
faid Time when, Cffr. had of and in the faid
fifteen Acres of Land with the Appurtenances,
from Time whereof the Memory of Man is
not to the contrary, have had, and have ufcd
and been accullomed to have, and the laid
fV. F. ftill of Right ought to have for himfelf
and themfclves, his and their Farmers and
Tenants, Occupiers of the faid fifteen Acres
of Land with the Appurtenances, Common of
Pafturc in and upon the faid Place called the
0/d Moor^ in which, ^c. for all his and their
commonable Sheep levant and couchant upon
th^ faid fifteen Acres of Land with the Ap-
purtenance'^, every Year from the Feaft of All
Saints^ according; to the Old Stile, until the
'Feaft of the Purification of the Blejfed Virgin
Mary then next followinpr, according to the
fame Stile, as to the faid fifteen Acres of Land
with the Appurtenances belong ng ancj apper-
taining •, and the faid IV. F. being fo ieifed
thereof before the faid 'J'i^ne when, &c. to
wit, on the twentieth Day of September in the
Year of our Lord one thoufand fcven hundred
aud
APPENDIX. U7
and fifty-fix, according to the preftnt Sti!e»
at fV, aforefaid, demifed the faid fifteen Acres
of Land with the Appurtenances (amongll
other Things} to one Job fV. to have and to
hold the fame to the faid Job W. from the
Feaft of Saint Michael the Archangel i\vn next
enfuing, according to the prefent Stile, for
and during one whole Year thence next fol-
lowing, and fo from Year to Year for fo long .
Time as it ftiould pleafe the faid PV. F. and
Job fV. by virrue of which faid Demife the
faid Job IV, afterwards, and before the faid
Time when, fcfr. to wir, on the thirtieth Day
of September in the Year laft aforefaid, accord-
ing to the prefenc Stile, entered into the faid
fifreen Acres of Land with the Appurtenances,
and became and was poflTeflTed thereof, and
continued fo poffcffed thereof until and upon
the thirticjch Day ot Olober in the Year of our
Lord one thoufand feven hundred and fifty,-
eighr, according to the prefent Stile, and be-
ing fo poffeflcd thereof, he the faid Job W.
afterwards, (to wit) on the faid thirtieth Day
of 05lober one thoufand feven hundred and
fifty- tight, according to the prefent Stile, at
W. aforefaid, demiicd the faid fifteen Acres
of Land with the Appurtenances to the faid
Adam Lu[b^ to hold the fame to him from the
Feaft of All Saint s^ according to the Old Stile
then next enfuing, until the Feall of the Pu-
rification of the Bhjj'ed Virgin Mary then next
following, according to the fame Scile, by
virtue of which faid laft-mentioned Demife the
faid ^'Idam Lujh afterwards, and before the faid
Time when, ^c. to wit, on the thirteenth Day
Qi November in the Year of our Lord one
R 4 thoufand
fl4» APPENDIX.
thoufand feven hundred and fifty-eight, en*
tercd into the faid fifteen Acres of Land with
the Appurtenances, and became and was pof-
fefled thereof, and being fo poflTefled thereof
he the faid Adam Lujhy after the faid Feaft of
Ml SaintSj according to the Old Stile in the
Year laft aforefaid, and before the faid Time
when, £s7r. to wit, on the fame Day and Year
in the fa'd Declaration mentioned, put the faid
eight Sheep, then being the commonable Sheep
of the faid Adam Lufh, and levant and couchant
in and upon ' the faid fifteen Acres of Land
with the Appurtenances, into the faid Place in
which, isc. to feed upon the Grafs there grow-
ing, and to ufe his faid Common of Pafture
there, and the faid eight Sheep were depaf-
turing in the faid Place in which, ^c. on that
Occafron, as they lawfully might, till the faid
Thomas and George^ before the Feaft of the
Purification of the Blejjed Virgin Mary then
next following according to the Old Stile, to
wit, at the faid Time when, (sc. of their own
Wrong took the faid eight Sheep in the faid
Place in v/hich, ^c. and unjuftly detained the
fame againft .Gages and Pledges until, ^c.
in Manner and Form as the faid Adam Lujh
hath above thereof complained againft them;
and this he is ready to verify : Wherefore in
as much as the faid Thomas and George have
above acknowledged the taking of the faid eight
Sheep in the faid Place in which, ^c, the faid
Adam Lujh prays Judgment, and his Damages
by reafon of the taking and unjuft detaining
of the fame to be adjudged to him, &?r. -And
for further Plea in Bar to the faid Cognizance
gf the faid Thomas and Gecrge by them firft
above
A P P E N D I X.
above made as to the taking of the faid eight
Sheep in the faid Declaration nrientioned, the
faid Adam Lujb^ by like Leave of the Court
here to him for this Purpofe granted, accord-
ing to the Form of the Statute in fuch Cafe
lately made and provided, fays. That the faid.
Thomas and George^ by reafon of any thing
therein alledged as Bailifis of the faid Mayor,
BurgefTes and Commonalty, ought not to ac-
knowledge the taking of the faid eight Sheep
in the faid Place in which, &?r. to be juft,
becaufe he fays, that true it is that the faid
Place called the Old Moor in which, ^c. long
before, and at the faid Time when, ^c. was
and ftill is a certain large Wade or Pafture
called and known by the fevcral Names of the
Old Moory otherwife Portmatis Moor^ other-
wife Fortmaris Meady containing by Eftima-
tion a large Number of Acres to wit, forty
Acres lying and being at W. aforefaid in the
County of Berks aforefaid, as the faid Thomas
and George have in their faid Cognizance-
above alledged -, But the faid /Jdam Lujh fur-
ther fays, That long before, and at the faid
Time when, &c. one JV, F. was, and ftill is
feifed of and in a certain MelTuage and diverfe,
to wit, one hundred Acres of Land with the
Appurtenances, fituate, lyfng and being at If^.
aforefaid, in his Demefne as of Fee, and that
the faid /F. F. and all thofe whofe Eftate he
nov/ hath, and at the faid Time when, ^c.
had of and in the faid MefTuage and Land with
the Appurtenances, from Time whereof the
Memory of Man is. not to the. contrary, have
had, and have ufed and been accuftomed to
have, and the faid fV. F, ftill of Right ought
to
249
aS3 APPENDIX.
to have for himfelf and themfelves, his and
their Farmers and Tenants of the fasd Meflfu-
age and Land wifh the Appurtenances, the
fole and feparate F^.fture of the faid Place in
which, fc?r. every Year from the Feaft of Jll
Saints according to the Old Stile, until the
Feaft of the Purification of the Blejfed yirgin
Mary^ according to the fame Stile then nexc
following, to be had and taken with Sheep as
to the faid MefTuage and Land with the Ap-
purtenances belonging and appertaining ; and
the faid IV. F. being fo ieifed of the faid Mef-
fuage and Land with the Aopurtenances, af-
terwards, and before the faid Time when, ^c.
to wit, on the twentieth Day of September in
the Year of our Lord one th )uland fcvrn hun-
dred and fifty-fix, according to the prefenc
Stile, at IV. aforcfaid, demiled the faid Mef-
fuage and Land with the Appurt nances to one
Job fV. to hold the fame to him from the
Feaft of Saint Michael the Archangel then next
following, according to the prelcnt Stile, for
one whole Year then next to come, and fo
from Year to Year for fo long Time as it
(hould pleafe the faid fV. F. and Job IV. by
virtue of which faid Demife the faid Job
W. afterwards, and after the Feaft of Saint
Michael the Archangel in the Year of our Lord
one thoufand {t^t^ hundred and fifty-fix, ac-
cording to the prefent Stile, and before the
faid Time when, k^c. (to wit) on the thirtieth
Day of September in the Year laft aforefaid,
according to the prefent Srile, at W. aforefaid,
entered into the laid MelTuage and Land wirh
the Appurtenances, and became and was, and
continually from thenceforth hitherto hath
been.
APPENDIX. 251
been, and ftill is poflcflred thereof, and being
fo poffefled thereof, he the faid Job W. after-
v/ards, and before the faid Tini€ when, i£c.
(to wit) on the twentieth Day of December in
the Year of our Lord one thoufand fevcn hun-
dred and fifty-eight, according to the prefent
Stile, at W. aforefaid, gave Leave and Li-
cence to the faid Adam Lujh to put the faid
eight Sheep into the faid Place in which, &e.
to feed upon the Grafs there growing, by vir-
tue of which faid Licence the faid Adam Lujh
afterwards, and after the Feaft of All Saints in
that Year, according to the Old Stile, and
before the Feaft of the Purification of the BleJ-
Jed Virgin Mary then next following, accord-
ing to the fame Stile, and before the faid Time
when, ^c. (to wit) on the Day and Year in
the faid Declaration mentioned, put the faid
eight Sheep into the faid Place in which, i£c.
to feed upon the Grafs there growing, and the
faid eight Sheep were depafturing in the faid
Place in which, ^r. on that Occafion, as they
lawfully might, till the faid Thomas and George
at the faid Time when, £s?r. of their own
Wrong took the faid eight Sheep in the faid
Place in which, iSc, and unjuftly detained the
fame againft Gages and Pledges until, &fr.
in Manner and Form as the faid Adam. Lujh
hath above thereof complained againft them ;
and this he is ready to verify : Wherefore in
as much as the faid Thomas and George have
above ackowledged the taking of the faid
eight Sheep in the faid Place in which, fc?r.
the faid Adam Lujh prays Judgment, and his
Damages by reafon of the taking and unjuft
detaining of the fame to be adjudged to him,
«5^ APPENDIX.
(5?r. And the faid Adam Lujh^ as to the faid
Cognizance of the faid Thomas and George by
them laflly above made as to the taking of
the faid eight Sheep in the faid Declaration
mentioned, fays. That they the faid Thomas
and George^ by reafon of any thing therein
alledged, ought not, as Bailiffs of the faid
Mayor, Burgcifes and Common dty, to ac-
knowledge the taking of the faid eight Sheep in
the faid Place called the Old Moor in which,
6?^. to be jull, bccaufc he fays, that long be-
fore, and at the faid Time when, ^c. one
fV. F. was, and ftill is fcifed of and in the faid
Place called the Old Moor in which, &c. in
liis Demefne as of Fee, and beinor (o feifrd
thereof he the faid IVilliam afcerv^ards, ^that is
to fay, on the twentieth Day of December in
the faid Year of our Lord one thoufand fcven
hundred and fifty-eight, at IV. aforefaid, gave
Licence to the faid /Idayn Lujh to put his Cat-
tle aforefaid into the faid Place called the Old
Moor^ in which, Gff. to departure the Grafs
there then, growing, by virtue of which Li-
cence the faid Adam LuJh afterwards, and be-
fore the faid Time when, i^c. put the faid
Cattle into the faid Place in which, £ffr. to
departure the Grafs in the fame there growing,
which faid Cattle were in the faid Place in
which, ksjc. on the Occafion afforefaid depaf-
turing the Grafs there then growing, until the
faid Thomas and George^ on the twenty-feventh
Day of December in the faid Year one thoufand
feven hundred and fifty-eighr, at the faid Parifh
of faint Leonard in IV. in the faid Place in
which, (£c. took the faid Cattle of the faid
Adam Lujby and unjullly detained the fame
againft
?^o
APPENDIX. ^^3
gaiiift Gages and Pledges until, ^c. in Man-
ner and Form as the faid ^dam hujh hath
above thereof complained againft them ; With-
out this, that the faid Mayor, BurgefTes and
Commonalty of the Borough of ^F. aforefaid,
at the faid Time when, iSc. were feifed in their
Demefne as of Fee of and in the faid Wafte
or Common Pafture called the Old Moor^ in
which, i^c, as the faid "Thomas and George have
in th^ir faid Cognizance above alledged ; and
this the faid AdamLuJh is ready to verify:
Wherefore in as much as the faid Thomas anct
George have above acknowledged the taking of
the faid eight Sheep in the faid Place called
the Old Moory in which, tfr. the faid Adam
Lujh prays Judgment, and his Damages by
reafon of the taking and unjuft detaining of
the fame to be adjudged to him, tfr. And
for further Plea in Bar to the faid Cognizance
of the faid Thomas and George by them laftly
above made as to the taking of the faid eight
Sheep in the faid Declaration mentioned, the
faid Adam Lujh by Leave of the Court here
to him for this Purpofe granted, according to
the Form of the Statute in fuch Cafe lately
made and provided, fays. That the faid Tho-
mtis and George^ by reafon of any thing there-
in alledged, as Bailiffs of the faid Mayor, Bur-
gefTes and Commonalty, ought not to acknow-
ledge the taking of the faid eight Sheep in the
faid Place in which, ^c. to be juit, becaufe
he fays, that long before, and at the faid Time
when, iSc, one IVilliam F. was, and ftill is
feifed of and in diverfe (to wit) fifteen Acres
of Land with the Appurtenances, lying and
being in a certain Clofe called Portman's Fieldj
otherwife
254 APPENDIX,
othcrwifc Saint John's Fields 'y^ng at IV. afore-
faid, in his Demefne as of Fee, and that the
lai'd William F. and all thofe whofe Eftate he
now hath, and at the faid Time when, i^c.
had of and in the faid fifteen Acres of Land
with the Appurtenances, from Time whereof
the Memory of Man is not to the contrary,
have had, and have ufed and been accuftomed
to have, and the faid IVilliam F. ftill of Right
ought to have for himfelf and themfelves, his
and their Farmers and Tenants, Occupiers of
the faid fifteen Acres of Land with the Ap-
punenances. Common of Hafturc in and upon
the faid Place called the Old Moor^ in which,
fc?f. for all his and their commonable Sheep
levant and couchant upon the faid fifteen Acres
of Land with the Appurtenances, every Year
from the Feaft of AH SaintSy according to the
Old Stile, until the Feaft of the Purification of
the Blejfed Virgin Mary then next following,
accprding to the fame Stile, as to the faid fif-
teen Acres of Land with the Appurtenances
belonging and appertaining; and the faid fVil-
Ham F being fo feifed thereof before the faid
Time when, &c. f to wit) on the twentieth
Day of September in the Year of our Lord one
^ thbufand feven hundred and fifty-fix, ac-
cording to the prefcnt Stile, at IV. afore-
faid, demifed the faid fifteen Acres of Land
with the Appurtenances (amongft other Things)
to one Job tV. to have and to hold the fame
to the faid Job TV. from the' Feaft of Saint
Michael the Archangel then next enfuing, ac-
cording to the prelent Stile, for and during
one whole Year thence next following, and^ io
from Year to Year for fo long Time as it fhoukl
pleale
(♦.
APPENDIX. 255
plcafc the faid William F. and Job JV. by virtue
of which faid Demife the faid Job. IV. after-
wards, and after the Feaft of Saint Michael one
thoufand fcven hundred and fifty-fix, according
to the preient Stile, (to wit) on the thirtieth
Day of September in the Year laft mentioned, •
according to the prefent Stile, entered into the
faid fifteen Acres of Land with the Appurte-
nances, and became and was pofleflfed thereof^
and continued fo poflTeffed thereof until and
upon the thirtieth Day of October in the Year
one thoufand feven hundred and fifty-eight,
according to the prefent Stile 5 and being fo
pofTeffed thereof he the faid Job W. after-
v/ards, and befo^re the faid Time when, frr.
(to wit) on the faid thirtieth Day of October
in the Year of our Lord one thoufand feven
hundred and fifty-eight, according to the pre-
fent Stile, at li\ aforefaid, demifed the faid
fifteen Acres of Land with the Appurtenances
to the faid Adam Lu/h^ to hold the fame 10 him
from the Feaft of All SaintSy according to the
old Stile, then next enfuing, until the Feaft of
the Purification of the Blejfed Virgin Mary then
next following, according to the fame Stile;
by virtue of which faid laft-mentioned De-
niifcs the faid Adam Lujh afterwards, and be-
fore the faid Time when, fsrV. (to wit) on the
thirteenth Day of November in the Year of our
Lord one thoufand feven hundred and fifty-
eight, entered into the faid fifteen Acres of
Land with the Appurtenances, and became
and was poflefled thereof; and being fo pof-
fcftcd thereof he the faid Adam LuJIj after the
faid Feaft of //// Saiuts^ according to the Old
Stile, in the Year laft aforefaid, and before the
faid
256 APPENDIX.
faid Time when, i^c. (to wit) on the fame
Day and Year in the faid Declaration men-
tioned, put the faid eight Sheep, then being
the commonable Sheep of the faid Adam LitjJoy
and levant and couchant in and upon the faid
fifteen Acres of Land with the Appurtenances,
into the faid Place in which, G?^. to feed up-
on the Grafs there growing, and to ufe his
faid Common of Failure there, and the faid
eight Sheep were depafturing in the faid Place
in which, i^c. on that Occafion, as they law-
ifuUy might, till the faid Thomas and George^
before the Feaft of the Purification of the Blef-
Jed Virgin Mary then next following, accord-
ing to the Old Stile, (to wit)* at the faid Time
when, fffV. of their own Wrong took the faid
• eight Sheep in the faid Place in which, Cffr.
and unjuftly detained the fame againft Gages
and Pledges until, ^c. in Manner and Form
as the faid Adam Lujh hath above thereof com-
plained againft them; and this he is ready to
verify : Wherefore in as much as the faid Tho-
mas and George have above acknowledged the
taking of the faid eight Sheep in the faid Place
in which, i^c. the faid Adam Lujh prays Judg-
ment, and his Damages by reafon of the tak-
ing and unjuft detaining of the fame to be
adjudged to him, fc?f. And for further Plea
in Bar to the faid Cognizance of the faid Tho-
mas and George by them lallly above made as
to the taking of the faid eight Sheep in the
faid Declaration mentioned, the faid Adam
Lujh J by like Leave of the Court here to him
for this Purpofe granted, according to the
Form of the Statute in fuch Cafe lately made
and provided, fays. That the faid Thomas and
GeorgCy
APPENDIX. ^s1
George^ by reafon of any thing therein alledged
as Bailiffs of the faid Mayor, Burgeffes and
Commonalty, ought not to acknowledge the
taking of the faid eight Sheep in the faid Place
in which, &ff . to be juft, becaufe he fays that
true it is, that the faid Place called the Old
Moor in which, &fr. long before, and at the
faid Time when, fcfr. was and ftill is a cer-
tain large Wafte or Pafture called and known
by the feveral Names of the Old Moor^ other-
wife FortmarCs Moor^ otherwife Portman's Meady
containing by Eftimation a large Number of
Acres (to wit) forty Acres lying and being at
JV. aforefaid in the County of Berks afore-
faid, as the faid Thomas and George have in
their faid Cognizance above alledged; But the
faid Adam Lujh further fays, That long be-
fore,, and at the faid Time when, tfr. one
William F. was, and ftill is feifed of and in i
certain Mefltiagc and* diverfe, (to wit) one
hundred Acres of Land with the Appurtenan-
ces, fituate, lying and being at W. aforefaid,
in his Demefne as of Fee> and that the faid
fVilliam F. and all thofe whofe Eftate he now
hath, and at the faid Time when, fcfc. had of
and in the faid Meffuage and Land with the
Appurtenances, from Time whereof the Me-
mory of Man is not to the contrary, have had,
and have ufed and been accuftomed to have,
and the faid H'illiam F, ftill of Right ought to
have for himfelf and themfelves, his and their
Farmers and Tenants of the faid Mefluagc
and Land with the Appurtenances, the fole
and fcparate Pafture of the faid Place in whigh,
&c. every Year from the Feaft of Jll ffaints^
according to the Old Stile, until the Feaft of
S the
tjt APPENDIX.
the Purification of the BUJfed Firgin Mary, ac-
cording to the fame Stile then next following,
to be had and taken with Sheep, as to. the faid
MefTuage and Land with the Appurtenances
belonging and appertaining ; and the faid fVil-
Ham F. being fo fcifed of the faid Mcffiiage
and Land with the Appiirtenanqes, afterwards^
and before the faid Time when, i^i:. (to wit)
on the twentieth Day of September in the Year
of our Lord one thoufand ievcn hundred and
fifty-fix, according to the prefent Stile, at fV.
aforefaid, demifed the faid MefTuage and Land
with the Appurtenances to one Job W. to hold
the fame to him from the Feaft of Saint Mi-
cbael the Archangel then next following, ac-
cording to the prefent Stile, for one whole Year
then next to come, and fo from Year to Year
for fo long Time as it fhould plcafc the faid
JVilliam F. and Job tV. by virtue of which laid
Demife the faid Job IV. afterwards, and after
the Feaft of Saint Michael the Archangel in
the Year of our Lord one thoufand feven hun-
dred and fifty-fix, according to the prefent
Stile, and before the faid Time when, i^c. (to
wit) on the thirtieth Day of September in the
year laft aforefaid according to the prefent
Stile, at W. aforefaid, entered into the faid
MefTuage and Land with the Appurtenances,and
became and was, and continually from thence-
forth hioherto hath been, and ftill is pofTefTcd
thereof; and being fopoflTeflTed thereof h^ the
faid Job W. afterwards, and before the faid
Tinie when, i^c. (to wit; qn the twentieth
Day of December in the Year of our Lord one
thoufand feven hundred an4 fifty-eiftht, ac-
cording to the prefent Stile, .at W. aTordfaid,
2 • gave
APPENDIX. ^^^
gave Leave and Licence to the faiid^dam Lujb
to put the faid eight Sheep into the faid Place
in which, ^c. to feed upon the Grafs there
growing, by virtue of which faid Licence the
faid Adam Lujh afterwards, and after the Feaft
oi All Saints in that Year, according to the Old
Stile, and before the Feaft of the Purification
of the Blejfed Virgin Mary then next following,
according to the fame Stile, and before the
faid Time when, i^c. (to wit) on the faid Day
and year in the faid Declaration mentioned, put
the faid eight Sheep into the faid Place in which,
i^c. to feed upon the Grafs there growing, and
the faid eight Sheep were depafturingin the faid
Place in which, Qc. on that Occafion, as they
lawfully might, till the faid Thomas and George
at the faid Time when, (^c. of their own
Wrong took the faid eight Sheep in the faid
Place in which, &c. and unjuftly detained the
fame againft Gages and Pledges until, ^c. in
Manner and Form as the faid Adam LuJh hath
above thereof complained againft them ; and
this he is ready to verify ; Wherefore in as
much as the faid Thomas and George have
above acknowledged the taking of the faid
eight Sheep in the faid Place in which, (^c.
the faid Adam Lujh prays Judgment, and his
Damages by reafon of the taking and unjuft
detaining of the fame to be adjudged to him.
And the faid Thomas and George^ as to the Replication.
faid Plea of the faid Adam LuJh by him firft
above pleaded in Bar, as to the faid Cogni-
zance of the faid Thomas and George by them
firft above made, as before, fay, That the faid
Place c^Hcd the Old Moor in which, f^c. at
S 2 the
i6o APPENDI3L
the faid Time when, 6?r. was Parcel of the
Manor of W^. in the faid Cognizance men-
tioned, as the faid Thomas and George have in
their faid Cognizance above alledged ; and of
this they put thcmfelves upon the Country,
and the faid Adam Lujb doth the fame^ isc.
And the faid Thomas and George as to the faid
Pica of the faid Adam LuJb by him fecondly
above pleaded in Bar to the faid Cognizance
of the faid Thomas and George by them firft
above made, fay. That the laid eight Sheep
in the faid Declaration mentioned were at the
faid Time when, i^c. in the fdd Place called
the Old Moor in which, £rr. wrongfully feed-
ing and depafturing on the Grafs there then
grov/ing, and doing Damage there to the faid
Mayor, Burgeffes and Commonalty aforefaid,
as the faid Thomas and George have above in
their faid Cognizance alledged ; Without this,
that the faid H^'illiam F. and all thofe whofc
Eftate he now hath, and at the faid Time when,
fc?r. had of and in the faid fifteen Acres of
Land with the Appurtenances, from Time
whereof the Memory of Man is not to the
contrary, have had, and have ufed and been
accuftomed to have, and flill of right ought
to have for himfelF and themfelves, his and
their Farmers and Tenants, Occupiers of the
faid fifteen Acres of Land with the Appurte-
nances, Common of Pafture in and upon the
faid Place called the Old Moorj in which, 6ff.
for all his and their commonable Sheep levant
and couchant upon the faid fifteen Acres of
Land with the Appurtenances, every Year
from the Feaft of All Saints^ according to the
Old Stile, until the Feaft of the Purification of
1 the
APPENDIX. 261
the Blejfed Firgin Mary then next following,
according to the fame Stile, as to the faid fif-
teen Acres of Land with the Appurtenances
belonging and appertaining, in Manner and
Form as the faid Adam Lujh hath above in his
faid Plea in that Behalf alledged ; and this the
faid Thomas and George are ready to verify ;
Wherefore they pray judgment, and a Re-
turn of the faid eight Sheep, together with
their Damages, i^c. according to the Form of
the Statute, &fr. to be adjudged to them, &c.
And the faid Thomas and George^ as to the
faid Plea of the faid Adam Lujh by him third-
ly above pleaded in Bar to the faid Cognizance
of the faid "Thomas and George by them firft
above made, fay, That the faid eight Sheep
in the faid Declaration mentioned were at the
faid Time when, i^c. in the faid Place called
the Old Moor in which, £5?t\ wrongfully feed-
ing and depafturing on the Grafs there then
growing, and doing Damage there to the faid
Mayor, Burgeffes and Commonalty aforefaid*
as the faid Thomas zx\di George hzvt above in
their faid Cognizance alledged ; Without this,
that the faid William F. and all thofe whofe
Eftate he now hath, and at the faid Time
when, 6?r. had of and in the faid Mefluage
and Land in that Plea mentioned with the
Appurtenances, from Time whereof the Me-
mory of Man is not to the contrary, have had,
and have ufed and been accuftomed to have,
and ftill of Right ought to have for himfelf
and themfelves, his and their Farmers and
Tenants, of the faid Mefluage and Land with
the Appurtenances, the fole and feparate Paf-
turc o; the faid Place in which, &?^. every
? 3 Year
262 APPENDIX.
Year from the Fc^lH of Jll Sainfs, according
to the OH Stile, until the Feaft of the Purifi-
cation of the bJc^d yirgin Mary^ according
to the fame Stile, then next following, to
be had and taken with Sheep, as to the faid
Meffuage and Land with the Appurtenances
belonging and appertaining, in Manner and
Form as the faid Adam Lujh hath above in Jhis
faid Plea in that Behalf alledged ; and this the
faid "Thomas and George are ready to verify;
Wherefore they pray Judgment, and a Return
of the faid eight Sheep, together with their
Damages, i^c. according to the Form of the
Statute, fcfr. to be adjudged to them, £s?r.
And the faid ^hoynas and George^ as to the faid
PJea of the faid Adam Lufo by him firft above
pleaded in Bar to the faid Cognizance of the
faid Thomas and George by them fecondly
above made, fay, That the faid Mayor, Bur-
gefles and Commonalty of the fard Borough
of W, aforefaid, at the faid Time when, &fr.
were feifed in their Dcmefne as of Fee of and
in the faid Wafte, or Common Failure, called
the Old Moor in which, cffr. in Manner and
Form as the fjiid -Thomas and George have above
in their faid Cognizance alledged ; and of this
they put themfelves upon the Country, fcfr. and
the faid Ad.-im Lujh doth the fame likewife.
And the faid Thomas and G,eQxgU ^s to the faid
Plea of the faid Adam Lujh by him fecondly
above pleaded in Bar to the faid Cognizance
of the faid Thomas and George by them above
fecondly made, fay. That the faid eight Sheep
were at the faid Time v/hen, i£c. in the faid
Place called the Old Moor in which, kic.
wrongfully , feeding and depalluring on the
Grafs
APPENDIX. • 26j
Grafs there then growing, and doing Damage
there to the faid Mayor, Burgefles and Com-
monalty aforefaid, as the faid Thomas and
George have above in their faid Cognizance
in that Behalf alledged ; Without this, that the
faid IVilliam R and all thofe whofe Eftate he
now hath, and at the faid Time when, ^c.
had of and in the faid fifteen Acres of Land
with the Appurtenances, from Time whereof
the Memory of Man is not to the contrary,
have had, and have ufed and been accuftomed
to have, and ftill of Right ought to have for
himfelf and themfelves, his and their Farmers
and Tenants, Occupiers of the faid fifteea
Acres of Land with the Appurtenances, Com-
mon of Pafture in and upon the faid Place
called- the Old Moor in which, fsrV. for all his
and their commonable Sheep levant and cou-
chant upon the faid fifteen Acres of Land
with the Appurtenances, every Year from the
Feaft of All Saints^ according to the Old Stile,
until the Feaft- of the Purification of the Blejfed
Virgin Mary then next following, according to
the fame Stile, as to the faid fifteen Acres of
Land with the Appurtenances belonging and
appertaining, as the faid Adam Ltijh hath above
in his faid Plea in that Behalf alledged; and
this they the faid I'homas and George are ready
to verify : Wherefore they pray Judgment,
and a Return of the faid Sheep, together with
their Damages, i^c. according to the Form
of the Statute, ^c. to be adjudged to them,
i^c. And the faid "Thomas and George^ as to
the faid Plea of the faid Adam Lujh by him
thirdly above pleaded in Bar to the faid Cog-
nizance of the faid Thomas and George by them
S 4 fccondl ^
a^4 APPENDIX.
ftcondly above made, fay. That the faid Sheep
in the faid Declaration mentioned were at the
faid Time when, &fr. in the faid Place called
' the Old Moor in which, fcf f . wrongfully feed-
ing and depafturing on the Grafs there then
growing, and doing Damage there to the faid
Mayor, Burgefles and Commonalty aforefaid,
as the faid ibomas and George have above in
their faid Cognizance alledged ; Without this,
that the faid William F, and all thofe whofe
Eftate he now hath, and at the faid Time
when, i^c. had of and in the faid Mefluage
and Land with the Appurtenances in thjat Plea
mentioned, from Time whereof the Memory
of Man is not to the contrary, have had, and
have ufed and been accuftomed to have, and
ftill of Right ought to have for himfelf and
themfclves, his and their Farmers and Tenants
of the faid Meffuage and Land with the Ap-
purtenances, the fole and feparate Pafture of
the faid Place in which, ^c. every Year from
the Feaft of All SaintSy according to the Old
Stile, until the Feaft of the Purification of the
Blejfed Virgin Mary, according to the fame
Stile, then next follow/ing, to be had and taken
with Sheep, as to the faid Meffuage and Lan4
with the Appurtenances belonging and apper-
taining, the faid ^dam Lujh hath above in his
faid Plea alledged i apd this they the faid
Thomas and George af e ready to verify ; Where-
fore they pray Judgment, and a Return of the
faid Sheep, together with their Damages, fc?^.
Ao«:ord!ng to the Form of the Statute, 6?^. to
be adjudged to them, &c.
Fvcjoindor. And the faid yidam Lujhy as to the faid Plea
of the faid Thomas and George above in Reply
pleaded
APPENDIX. 365
pleaded to the faid Plea of him the faid Adam
Lujh fecondly above pleaded in Bar to the faid
Cognizance of the faid Thomas and George by
theni firft above made as before, faith. That
the {aid ff^illiam F, and all thofe whofe Eftate
he now hath, and. at the faid Time when, i^c.
had of and in the faid fifteen Acres of Land
with the Appurtenances, from Time (whereof
the Memory of Man is not to the contrary,
have had, and have ufed and been accuftomed
to have, and the faid William F. ftill of Right
ought to have for himfelf and themfelves, his
and their Farmers and Tenants, Occupiers of
the faid fifteen Acres of Land with the Ap-
purtenances, Common of Paflure in and upon
the faid Place called the Old Moor in which,
(^c. for all his and their commonable Sheep
•levant and couchant upon the faid fifteen Acres
pf Land with the Appurtenances, every Year
from the Feafl of /^ll SaintSy according to the
Old Stile, until the Feafl of the Purification of
the Blejfed Virgin Mary then next following,
according to the fame Stile, as to the faid
fifteen Acres of Land with the Appurtenances
belonging and appertaining, in Manner and*"
Form as the faid Adam Lujh hath above in his
faid Plea in that Behalf alliedged 5 and this the
faid Adam Lujh prays may be enquired of by
the Country, and the faid ^Thomas and George
do the fame likewife. And as to the faid Ple^
of the faid Thomas and George by them in Re-
ply pleaded to the faid Plea of him the faid
Adam Luflj thirdly above pleadpd in Bar to the
faid Cognizance of the faid Thomas and George
by them firfl ^bove made, the laid Adam Liijh
fi§ before, faith. That the fai4 fVilliam F. and
266 APPENDIX.
all thofc whofc Eftate he now hath, and at
the faid Time when, i^c. had of and in the
faid Meffuage and Land in that Plea in Bar
mentioned, with the Appurtenances, from Time
thereof the Memory of Man is i\ot to the
•contrary, have had, and have ufed ^^ been
accuftomed to have, and the faid fVilth^ F.
'ftill of Right ought to have for himfelf ^d
<themfelves, his and their Farmers and Tenants
of the faid Meffuage and Land with the Ap-
purtenances, the fole and feparate Pafture o(
the faid Place in which> fc?r. every Year from
the Feaft of ^l SaintSy according to the Old
Stile, until the Feaft of the Purification of the
Blejfed Virgin Mary^ according to the fame
Stile, then next following, to be had and taken
ivith Sheep, as to the faid Meffuage and Land
with the Appurtenances belonging and apper-
taining, in Manner and Form as the faid Mam
Lujh hath above in his faid Plea in that Behalf
alledged ; and this the faid Adam LuJh alfo
prays may be enquired of by the Country, and
the faid Thomas and George do the fame like-
Avife. And as to the faid Plea of the faid
Thomas and George above in Reply pleaded to
the faid Plea of him the faid Adam Lujh fe-
condly above pleaded in Bar to the faid Cog-
nizance of the faid "Thomas and George by them
fecondly above made, as before, faith. That
the faid fVilliam F. and all thofe whofe Eftate
he now hath, and at the faid Time when, &c.
had of and in the faid fifteen Acres of Land
with the Appurtenances, from Time whereof
the Memory of Man is not to the contrary,
have had, and have ufed and been accuftomed
CO have, and the faid William F. ftill of Right
ought
Appendix. 267
ought to have for himfelf and themfelves, his
and their Farmers and Tenants, Occupiers .
of the faid fifteen Acres of L^ind with the .
Appurtenances, Common of Pafture in and
upon the faid Place called the Old Moor in
which, ^c. for all his and their commonable
Sheep levant and couchant upon the faid fif-
teen Acres of Land with the Appurtenances,^
every Year from the Feaft of All Saints j ac-
cording to the Old Stile, until the Feaft of the
Purificaitm of^ the Blejfed Vingin Mary then
next following, according to the fanie Stile,
as to the faid fifteen Acres of Land with the
Appurtenances belonging and appertaining, as
the faid Adam Ltijh hath above in his faid Pleii
in that Behalf alledged ; and this the faid Adam
Lujh alfo prays may be enquired of by the
Country, and the faid Thomas and George do
the fame likewife. And as to the faid Plea of
the faid Thomas and George above in Reply
pleaded to the faid Plea of the faid Adam Lujb
thirdly above pleaded in Bar to the faid Cogni-
zance of the faid Thomas and George by them
fccondly above made as before, faith. That
the faid William F. and all thofe whofe Eftate
he now hath, and at the faid Time when, &?r.
had of and in the faid MefTuage and Land
with the Appurtenances in that Plea in Bar
mentioned, from Time whereof the Memory
of Man is not to the contrary, have had, and
have ufed and been accuftomed to have, and
the faid fVilliam F. ftill of right ought to
have for himfelf and themfelves, his and their
Farmers and Tenants of the faid Mefluage
and Land with the Appurtenances, the fole
and feparate Pafture of the faid Place in which,
Off.
q68 appendix.
iSc. every Year from the Feaft of All SaintSy
according to the Old Stile, until the Feaft of
the Purification of the Blejfed l^trgin Mary, ac-
cording to the fame Stile then next following,
to be had and taken with Sheep as to the faid
MefTuage and Land with the Appurtenances
belonging and appertaining, as the faid AJam
Lujb hath above in his faid Plea alledged 3 and
this the faid Adam Lujh alfo prays may be en-
quired of by the Country, and the faid Thomas
and George do the fame likewife. Therefore
as well to try this Ifliie as the faid feveral
other IfTues above joined between the Parties,
the Sheriff is commanded that he caufe to
come here in eight Days of the Purification of
the Blejfed Virgin Mary^ twelve, 6?^. by whom,
£*fr. who neither, &f^. to recognize, &? r. bc-
caufe as well, (^c^
FINIS,
■**•
The CASE of JOHN WOODHOUSE,
Efq; of Bridewell Hofpital^ one of the
Diredlors of the Eafi^India Company*
IN the Autumn of 1775, ^^ ^^^ feifcd with a
violent cold, or influenza, which continued
fome months, then fell on the bowels and brought
on a conftant purging^ He took the advice of
eminent phyfician?, and found relief, but not a
cure. In the fpring following, as the complaint
increafed, he went to Bath, drank the waters,
took fuch medicines as were judged proper, aad
bathed three or four times 5 by which means the
diforder feemed fomewhat abated ; — in July went
to the German Spa, where he continued three
months, during fix weeks of which time he re--
ceived benefit from the Geronfteer water, but
then the diforder changed to a dyfcntcry; which
was removed by medical affiftance. He went on'
with the vsraters, and was rather better ; but re-
lapfed in the winter, and continued equally bad
for feven or eight months.
In June 1777 he returned to Spa, and drank
the Savaniere waters, which had a good effeft for
a month, then grew worfe, tried former medi-
cine$ to no purpofe, and was obliged to leave off
drinking the waters ; but bathed in the mineral
bath
[ « ]
bath of Tonolet made warm ; and in the natural
hot baths of Chaude Fontaine, without any be-
nefit : the dyfcntery daily increafing, with much
pain he returned to England, quite emaciated
and feeble.
In September, upon the encouragement given
him by a worthy gentleman in the neighbour-
hood of Nevil-Holt, Leicefterfliire, (a Member
of Parliament) and by the ad vice of Dr. Garrow,
of Barnet, he went to try the waters of Ncvil-
Holt, firft in fmall quantities, as an alterative,
increafing the dofe gradually, from a pint to
three or four : they afted as a purgative, in a
greater or lefs degree, according to the number
of glaflcs drank, and more than anfwered his
moft fanguine expedtations : for though no other
opening medicine could be taken without mani-
feft prejudice, the brilkcft operation by thefe
waters did not in the Icaft degree relax or weak-
en, but braced and ftrcngthencd him. In fix
weeks the dyfentery was cured, and the purging
greatly abated, and continued fo during the win-
jer in London, where he drank that water pretty
conftancly. In 1778 he fpent two months at
Nevil-Holt, drinking the water at the fountain
head, got perfe6tly cured, and returned home in
good healtl^ and has recovered his flefb^fti-ength,
and fpirits, and fo continues, 1780.
The NEVIL-HOLT WATER is fold by
W. OWEN, at the ORIGINAL MINERAL
WATER WAREHOUSE in LONDON, No,
1 1, near Temple-bar, Fleet-ftreet, (eftablifted in
its reputation above fifty years, by the recom-
mendation of the moft eminent Phyficians) where
the Gentlemen of the Faculty, and the Public, may
depend
V
[ 3 ]
dcpen.l on being faithfully ferved with all the
nuncral waters, in the grcateft perfeftion, viz.
The crenuine SELTZER WATER, imme-
t3iarcly from the fountain head, filled under the
inipedion of the Comptroller to' his Highncfs
the ELECTOR of TREVES:— The genuine
GERMAN SPA Water, from the Pouhon
fpring, in large and fmall flaflcs ; and the genuine
FYRMONT Water, in three-pint bottles.
BRISTOL Water, SCARBOROUGH Wa-
ter certified by the Magiftrates of Scarborough,
NEVIL-HOLT, HARROGATE, TIL-
BURY, MALVERN, JESSOP:— Bath Wa-
ter, certified by the pumper, and CHELTEN-
HAM Water, arrive conftantly frcfli every week
as ufual. — Alfo Tar Water. — Sea Water in it*s
utmaft purity, taken up ftveral leagues at fea.—
Cheltenham and Scarborough Salts.
W. O WEN prcfumes to affure the Gentlemen
of the Faculty, and the Public, that the mineral
Waters, fold at his Warehoufe, are filled in the
moil proper feafons only, when they are in per-
fedtion. And as he has (pared no pains nor ex-
pence to have the genume watg-s of Seltzer,
Pouhon Spa, and Pyrmonr, fecured in the beft
manner, lo as efilsdlually to preferve their mineral
fpirit, and medicinal virtues, he has reafon to
flatter himfelf that the Waters he imports are
not inferior to ihoie at the fountain head.
*^* Great quantities of fpurious waters hav-
ing been notorioufly fubftitutcd in the room of
the genuine, to the difappointment of the Phy-
ficians, and their Patients, as fully appears* by a
certificate in my pofTeffion ; in order to prevent
'impoficions fo dangerous to health, a& much as
lies
I
[ 4 ]
lies In my power, I have found it neceflary t<
fcal with ray name, every botde of SELTZEF
water, and of PYRMONT, and SPA water im
ported by me; -of which thofe who favour rm
with their commands will pleafe to take notice
And, for the fame reafon, I beg leave to requefl
they will give orders to have a bill and receipi
ligne^by their molt obedient fcrvant,
W. OWEN.
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