CERTAIN PROPOSALS OF DIVERS Clerks and Attorneys Of the COURT of COMMON-PLEAS, For the taking away Fines upon Original Writs and damage clear, and Regulating the Proceed at Law, and remedying some Inconveniences.  
Whereby the Client will be much secured, the Process shortened, the greatest part of the charge of most Suits abated, and many unnecessary Suits in Law and Equity prevented.  
Which is the End and Desire of the Proposers.  
Presented to the Right Honourable the Lords and Commons assembled in Parliament.  
LONDON, Printed for J. Starkey at the Mitre in Fleetstreet near Temple-Bar. 1661.   

TO THE RIGHT HONOURABLE THE LORDS and COMMONS Assembled in PARLIAMENT.  
May it please your Honours,  
THe humble Proposers observing some unnecessary charges and delay, introduced by the corruption and multitude of Offices and Officers, which still increased, besides some inconveniences that the corruption of time had produced, the same being more obvious to them than others, by reason of their experience in the practice of the Law: for remedy thereof consulted how to apply themselves to the Parliament; and to that purpose had several meetings together, wherein the Proposals now presented to your view were agreed on, as things that would conduce much to the ease, benefit, and safety of the Suitor, make good provision against the most general inconveniences, prevent many frivolous and unnecessary Suits, shorten the process in many, and ease the charge in all; and (which is not the least of their ambition) take away those Aspersions that seem to blemish that Law, the Law of England, which they humbly conceive to be the most perfect Law of any humane Law in the World; a Law that admits Nullum absurdum, nothing against the Laws of God or Nature, against Reason, or repugnant to any other Learning; wherein all matters of Fact are adjudged and tried by Twelve able discreet and indifferent Neighbours to the place where the Matter of Fact arises; and the Matters of Law are debated, adjudged, and determined by as many of the most ancient, grave, and learned Lawyers of the Nation, who for their great experience, integrity and wisdom, are first deservedly called to the state and degree of Sergeants at Law, and after to be Judges; and the process of this Law is so quick, that it seldom happens any Cause at Law depends above three or four Terms: But Covetousness, the root of all evil, having built some floodgates upon the Channel thereof, whereby the Course hath been obstructed, stopped, or diverted out of its due course, and thereby more care taken to catch the Fish for the benefit of the Officers, than for the dispatch and advance of the Clients business; and the Proposers being unwilling to trespass upon the Freehold of others by pulling down the Wares themselves, have by the drawing the Channel a nearer way in some Cases, and in other upon a lower flat, have nevertheless so ordered the business, as they humbly conceive that most of the Grist will be ground without paying Toll at those unnecessary Mills. And because Reformation wrestles with many difficulties, it being hard to find an Ephesus without some Demetrius, or some Critic that will conclude the Shrubs seek the fall of the Cedars, hoping thereby to advance their own tops. The Proposers have been very tender not to propose any thing that may in the least degree seem to advance their own Interests, but many things that will turn to their particular loss, they always preferring the public good before their own particular interests. Neither have they rashly herein proceeded, having spent many months in the Conception, digesting, considering, and composing of what they now present to your more grave considerations; and as they are not the issues of rash brains, so they have not passed without perusal and correction of many others of good judgement and experience, and are now to live and die under your Honourable censures: whereby if you shall receive any light to the furthering the good work in hand, or the Republic any benefit, the Proposers have their wished ends, and humbly therein submit themselves and these their poor labours to your better judgements, by the hands of the most humble of  
Your Servants.   

THE HUMBLE PROPOSALS Of divers of the CLERKS and ATTORNEYS Of His Majesty's Court of COMMON-PLEAS.  
1. THey humbly propose and conceive, 
These Fines are the 200th part of the thing demanded, beit land, debt, or damage, and must be paid at the Plaintiffs entrance into his suit, though he never recover any thing.  That Fines upon Original Writs are against the Fundamental Reason of the Common Laws of this Realm, which never imposeth Fines but upon Offenders: But these, Addere afflictionem afflict is, are exacted of the party injured, who comes to sue for Justice, when the party delinquent too oft escapes the punishment. And therefore they humbly propose that the same may be taken away, and no more paid or demanded.  
2. 
This is proposed to prevent the charge & delay which the Client is now at, who must be two Terms in suing to the Utlary, and is, besides the delay, put to the charge of three Capias', which are commonly sued forth altogether, and returned altogether in the Sheriff's name, but by the Attorney; but by this course of suing to the Utlary the process will be a Term shorter, and 5 s. 10 d. less charge, besides the Fine, if finable.  They humbly conceive, That the mean Process in suing to the Utlary are unnecessary, and do tend only to charge and delay: And therefore they humbly propose, that then the Exigent be awarded upon the return of the first Capias, as formerly upon the Plur. Capias, and as it is now used after judgement.  
3. 
The Common bar and new Assignment puts the Clients in every Action of trespass Quare clausum fregit that comes to trial toat lest twelve shillings charge, and may be supplied by three or four words in the Declaration, and put the the Client to no charge at all, and the recital of the Writ in many Actions almost doubles the charge to the Client, and is useless.  They humbly conceive, That the common Bar and new assignment in Actions of Trespass, Quare clausum fregit, and the recital of the Original Writ in Actions of Trespass, and upon the Case, and several other Actions are superfluous things, and infinitely increase the charge of the Client: They therefore humbly propose, That in all Actions of Trespass, Quare causum fregit, the place may be assigned in the Count And that for the future there may be no more recital of the Original Writ, other than in the form ensuing, that is to say; A. B. attach. fuit ad respondend. C. D. de placito tr. or, de placito tr. super casum, or the like, as is observed in the King's Bench; and the Originals in all personal Actions to be made accordingly without repetition of the special matter.  
4. They humbly conceive, that by reason Original Writs are not duly sued forth and filled, many Judgements are daily reversed, and in the time to come are subject to the like inconvenience by the carelessness, neglect, 
Many Judgements are daily reversed for want of Originals, which sometimes happens, because the Attorney rather than he will pay a post Terminum or more, which is 20 pence a Term, he will hazard his Client's Cause, which Fee was originally intended as a punishment upon the Attorney for his neglect; but it turns too oft to the destruction of the Client: and therefore the Proposers have proposed the punishment to return to the Clients relief, and not destruction. Other times this mischief happens, because an Attorney may perhaps forget in due time to sue out the Original, and after when he sees the default, he would amend it, but the Cursitors holding a course for their own benefit that no Original Writ can be sued forth returnable of a former Term, but within the first week of the ensuing Term, the Attorney is therefore restrained to do his duty to his Client.  or forgetfulness of the Attorney, or Clerk, or to save Post Terminums, which turns much to the prejudice of the Client: And therefore they humbly propose, That from henceforth there may be no restraint, but that the Plaintiff may at any time before the want thereof assigned for Error, sue forth and file any original writ, or other writ, to make good or warrant any judgement. And that for the filing of Original Writs no Post Terminum be demanded or paid; and that then, if any judgement happen to be reversed for default of Original Writ, the Clerk or Attorney in whose default the same shall be, shall and may be fined in such sum to be paid to the party grieved, as the Court shall (having respect to the quality of the offence) think meet and impose.  
5. They humbly conceive also, 
The Warrant of Attorney originally seemed of good use, but now it is only filled by the Attorney, and is of nonuse at all, but puts the Client to some charges and much hazard, for that the want thereof is sufficient cause to reverse a Judgement, and the filing now of no use.  that the not due filing of Warrants of Attorney, which through forgetfulness or carelessness is often neglected, is very dangerous to the Client, and yet of no benefit or use at all; and therefore they humbly submit it to the judgement of the Parliament whether the same be not fit to be discontinued, and the penal Statutes for the enjoying thereof repealed.  
6. 
This is the most unreasonable charge upon the Client that can be invented, which is the tench part of what damage soever the Plaintiff recovers: as if the Defendant upon a bargain, promise to give the Plaintiff a 1000 li. which he recovers in damage, the Prothonotary shall have a 100 li. and doth nothing for it, nor can justify the giving of any costs, for it was originally, as is conceived, exacted by the Clergy as a personal Tithe, the Clergymen being the Clerks that writ to all, or most of the Courts at Westminster.  They humbly conceive, that Damage Clear is both a great and unreasonable burden to the Client, who after a long and tedious suit, must have his Debt, or other duty Tythed; a duty anciently belonging to the Clergy, but is now converted to an improper use (as they humbly conceive:) And therefore they humbly propose, that the same may be taken away, and no more paid or demanded.  
7. 
If the Client, because he can get no Process served upon the Defendant, be forced to utlaw him, and then be forced to seize his Land to force him in, the profit goes into the Exchequer, and the Client loseth all, or else shall be put to the charge of a Lease, which will lie him in above 20 Marks, and 4 pounds, or thereabouts, yearly to continue it; and than if the party plead some feigned Title, or reverse the Utlawry, all is lost, and it is desired, that if the Parliament conceive it fit, that this Proposal be reduced to a Law, that care may be taken in the penning it, that the Exchequer Clerks may not evade it, for that lowable Laws will not hold them.  And whereas the Client is often enforced to utlaw the Defendant, by reason he absents himself; and after a long, chargeable and tedious Suit, is put also to seize the Defendants Estate, and expects thereby to receive the benefit of his Suit; when contrary to the poor Suitors expectation, the whole benefit is swept into the Exchequer. They therefore for remedy thereof, humbly propose, that the Plaintiff in such cases may have the benefit of all Seizures upon Utlawries till his debt, or other damages with reasonable costs be satified and paid; and that to that end Process may issue out of the Exchequer, by which the Sheriff may be authorized, and commanded to deliver all such Goods, and Chattels, and satisfy and pay all such moneys by him to be levied to the Plaintiff, until he be satisfied of his debt or damages, with reasonable costs to be assessed by the said Court; and that afterwards the Sheriff be accountable in the Exchequer, for the profits, as before times hath been used.  
8. And also when as the Client having run over all the Process, and having obtained judgement, and expecting his Execution thereupon, Writs of Error are often brought for delay, which, though we humbly conceive our former Proposals will make good provision against, yet the same being a Supersedeas, and admitting long process, it is often more costly and dangerous to the Client, than all that hath preceded; and though they humbly conceive Appeals just and useful, yet to prevent the inconveniences thereof, they humbly propose, That not Supersedeas upon a Writ of Error be from henceforth made forth or allowed, but that the Court where the original Judgement was entered, may make forth Execution, as though no such Writ of Error had been brought, or Record transcribed, unless the party prosecuting the same deposit in Court the Money, or other Duty recovered, or give sufficient bail, to satisfy the Judgement with the costs and damage awarded, in case the same Judgement be affirmed, or the Writ of Error discontinued or abated, or the Plaintiff therein nonsuited; and that the death of any party to the said suit shall not discharge such bail; and that from henceforth no Writ of Error shall be received or allowed, unless the same be returnable within eight days, if there shall be so many in Term; and if there shall not happen to be eight days in Term, then at the first return of the next ensuing Term; and that the Plaintiff in such Writ of Error shall without any Scire facias, assign his Errors within four days after the return of the said Writ, whereunto the Defendant in the said Error may if he will appear gratis, and be at liberty to allege dimunution, or join in issue, and proceed to the examination of the Errors; and that in case Judgement be affirmed, and it appear any such Writ of Error shall be brought merely for delay, or that the matter assigned shall not be difficult, or abide argument, than the party Plaintiff in the said Writ of Error, to pay to the Defendant for his or their delay therein triple costs and damage; and in case of Nonsuit or discontinuance before argument, double costs; and in case of abatement, or in such cases where the matter shall be difficult, single costs and damages; and that the parties may have thereof like execution as for the principle debt or damages.  
9 They humbly conceive it fit, that some legal course were provided for the recovery of Legacies, and that the Client should not be forced to an equitable course in Chancery for every petit Legacy, 
There is (by reason the Civil Law hath no compulsary process) no remedy, but in Chancery for Legacies, where if the Legacy be small, it is quickly spent with a great overplus.  the remedy whereby often proves worse than the disease. They therefore humbly propose, that an Action of Debt, Trover, Detinue, or other Action, as the Case requires, may lie at Common Law for the same, and that therein the thing demanded upon due proof made upon the Trial, may be recovered with costs and damages, and like defence and process may be had therein, as in such other Actions are, or shall be used at Common Law.  
10. 
As the Law now stands, the Heir may defeat all Creditors, for if he fear the debts of the Ancestor, he may alien the same day his Ancestor dies, and leave the Creditor no medium to bring his Action, and though it is true that fraud may be averred, yet few frauds are hard to be proved.  They humbly conceive it very hard to the Creditor, that the bare alienation of an Heir should defeat him of a just debt, the same being often done merely in fraud, when perhaps the Creditors money purchased the land descending; and therefore they humbly propose, that an Action of debt may lie against the Heir in all cases, as well after as before alienation, and that his Person, Goods, and Land, may be subject to the execution for the debt of his Ancestors upon specialty, to the value of the land descending in Fee-simple, or Fee-tail: and that such Action, and this proposal, may (if the Parliament shall conceive meet) be extended to the heirs of Copyholders, as well as Freeholders.  
11. They humbly propose, that for the avoiding of unnecessary and frivolous suits at Law, that it may be enacted, that if any Attorney or Solicitor shall deposit in the defence or prosecution of his Clients Cause, any other or larger sum or sums, than so much as the charge thereof shall surmount unto in Easter Term, Trinity Term, and the short Vacation, or in one other Term and Vacation, that then such Attorney or Solicitor shall be without all remedy to recover the same against the Client at Law.  
12. 
In Replevin at Common-law tender of amends before impounding in all cases was a good Bar, and by the Statute 21 Jac. in trespass for involuntary Trespasses, tender of amends is made a good plea, being done before Action brought: but because many times impounding and actions are made and brought, perhaps before the Defendant hath any knowledge of the Trespass, this proposal is presented: But for voluntary trespasses it is conceived fit to leave them at the Common Law to prevent greater inconveniencies.  And for the further avoiding of the frivolous suits at Law, they humbly propose, that tender of sufficient amends, with costs for all involuntary Trespasses, may be a good Bar in all Replevins and Actions of Trespass brought for the same, so that the same be done before the Rules be out for pleading in such Action.  
FINIS.