THE Course and Practice OF THE COURT OF COMMON-PLEAS, At Westminster.  
Heretofore Written by THOMAS CORY, Esq; Late Chief Prothonotary thereof.  
AND Now continued, and fitted to the Practice used at this day, with Additions by W. B. a Clerk of the same Court.  
LONDON, Printed by john Streater, Henry Twyford, and E. Flesher, Assigns of Richard Atkins, and Edward Atkins, Esq; M.DC.LXXII.  
Cum Gratia & Privilegio Regiae Majestatis.   

A TABLE OF THE Principal Matters.  

Concerning Prisoners, Fol. 1  
Of Bail, Fol. 4  
Concerning the writ of Clausum fregit, and special writ containing the declaration at large; and of fileing New Originals, Fol. 8  
Of Imparlances, Fol. 9  
Of Signing and entering Judgements, Fol. 12  
Of Appearances upon Exigents, Habeas Corpus, pluries capias, distringas, etc. Fol. 14  
Of Attachments upon Contempt, Fol. 15  
Of amending Entreys, etc. Fol. 17  
Of reading Demurrers, special Verdicts etc. in Court; ●●d the Course used therein by the Prothonotaries, Fol. 20  
Of the chief Prothonotary, Fol. 21  
Of the Test's and returns of writs in all Actions real and personal, and those brought by Attachment of Privilege, etc. Fol. 23  
The ancient Course of giving warrants to confess Judgements, Fol. 24  
Of Renewing Judgements by Scire Facias, Fol. 26  
Of persons taken in Execution in foreign Counties, Fol. 27  
Concerning the Privilege of the Clerk of the Court, Fol. 28  
Of carrying down causes to be tried by proviso, Fol. 29  
Of giving notice upon writs of Inquiry and Nisi prius, Fol. 30  
Of declaring upon Reversal of Utlaries, & Bail to writs of Habeas corpus, Fol. 32  
Of appearing in Quare Impedit, and waste upon the distress of are sting Judgement, Fol. 33  
Of matters concerning the Prothonotaries, and of the Clerks, and Attorneys of the Court, and their Clients, Fol. 34  
Of Trials at Bar, Fol. 35  
Of declaring in causes removed, as well out of Inferior Courts, as otherwise, Fol. 36  
Of an Habeas corpus, Fol. 41  
Of declaring upon Mesne process, Fol. 42  
Of Nonsuits, Fol. 45    

THE Course and Practice of the COURT of COMMON PLEAS.  

Concerning Prisoners.  
IF a Prisoners Body with his Causes be removed by Habeas Corpus or Writ of Privilege, if the Prisoner be there in person, he must undertake in double the sum, and his Bail in the single sum. But if the Prisoner be not there in person, than the Bail must be in the double sum.  
If such a Prisoner when he comes in Court, or before the Judge, hath no Bail, he is either to be committed to the Fleet, or remanded, but he cannot be committed to the Fleet unless there be some process of the Common Pleas returned, or unless he be brought to the Bar, and the Record of a Judgement or Utlary be brought in Court to charge the Prisoner with in Court; but now the Common Practice is upon removal of a Prisoner by Habeas Corpus, to feign a Writ of Capias, or Attachment of privilege to turn the Prisoner over to the Fleet.  
If a Prisoner be committed to the Fleet pro defectu Manucaptorum, and lies three Terms there, and the Plaintiff doth not in that time Declare against him, then upon a common Appearance the Prisoner is to be discharged out of Prison; but if the Plaintiff offers to declare, and the Prisoner will not appear, than the Prisoner must remain still in Prison, and the Plaintiff may sue him to the Utlary notwithstanding he is in Prison.   

Of Bayl.  
IF the Bail bring in the Principal at any time before a Plea pleaded to a Scire facias versus Manucaptores, or before Judgement by default, the Court hath used to receive the Principal in discharge of the Bail; and if the Plaintiff will pray him in Execution, he shall have him; if not, than the Principal shall be discharged, and the Plaintiff may take him in Execution when he can Arrest him; or he may sue forth Execution against his Lands and Goods: but anciently the Principal could not render his body in discharge of his Bail after he was returned Non est inventus upon Record, upon the Capias ad satisfaciendum, but now the Court hath the middle way, which is, to receive the Principal upon the return of the first Scire facias, but not after that.  
If the Defendant comes in by Cepi corpus returned in debt for twenty pounds or above, or in any Action upon the Case, or Trespass ad dampnum vel valenciam viginti Librarum or above; or if he be Utlawed in any of these Actions ad dampnum vel valenciam viginti Librarum or more, and reverseth the Utlary, the Defendant in such a case ought to put in Special Bail, but in all other cases (except in Writs of Privilege at the Suit of an Officer) Defendants appearance shall be received without Special Bayl. But this course is now altered by the late Act of Parliament; so that the Plaintiff cannot have special Bail unless it be in the Writ Debt twenty pounds or upwards; and in all other Actions, the true cause of Action must be set forth at large in the Writ whereupon the Defendant is Arrested, otherwise a common Appearance is sufficient.  
In all Writs of Privilege at the suit of an Officer of the Court, the Defendant, if he be Arrested, must put in special Bail, although the debt or damages demanded, be under twenty pounds; and if an Officer or Attorney of the Court be sued, he ought to be sued by Bill at the first, and not by Original, and if he shall refuse to appear, he shall be forejudged the Court, and then he may be Arrested, and so is the common course, but it is reserved to the Plaintiffs choice, whether he will sue him by Bill or Writ; But if one privileged person sue another, the Plaintiff may, and doth usually Arrest the Defendant, whether he be of this, or any other of the King's Courts at Westminster, for that the first privilege destroys the second.   

Concerning the Writ of Clausum fregit, and special Writ, containing the declaration at large; and of Fileing New Originals.  
IF the Defendant formerly had been Arrested upon a Clausum fregit, the Plaintiff might have declared in any personal Action thereupon, except in debt: But of late they have used, and do now use to declare in debt, upon suing forth a New Original in debt.   

Of Imparlances.  
IF the Defendant appears upon an Arrest by Clausum fregit (which is a general Writ, and may be said to be the Common Pleas Latitat) he must have an Imparlance of Course; but if the Writ whereupon he was arrested be special, according to the truth of the Action, and retornable the first or second return in any Term, so as a Venire facias may issue forth, there the Defendant ought to answer the first Term in all personal and mixed Actions; but in real Actions, the Defendant shall have one Imparlance of Course.  
The reason why they have had Imparlances in all cases in the King's Bench is, because the Defendant being arrested upon a general Writ, a Latitat could not know the cause of Action until the Declaration. And this reason holds in the Common Pleas, where the Defendant is arrested upon a general Clausum fregit: But in other Special Writs where the very Declaration is in the Writ, and the Defendant might when he is arrested see the Declaration in the Writ, there he ought not imparle, but to answer the first Term, as well in the King's Bench upon their new Writ of Aceciam bille, as in the Common Pleas upon Special Writs.   

Of signing and entering of Judgements.  
BY the course of the Court, after the ordinary rules given in the Office be out, the Plaintiff may enter Judgement by nichil dicit, (if the Defendant doth not plead) and this is as well in Ejectment as in all other personal Actions, without moving of the Court. But of late it hath been used in Quare Impedit, and Ejectment, to move the Court before they enter Judgement, and so is the Common practice now used.  
But in all real Actions no Judgement is to be entered by nichil dicit without motion in Court; and there was formerly a rule made, that no Judgement by default should be entered in Ejectment, without moving the Court; which rule was afterwards altered by another, and then Judgement might have been entered by default upon a Rule entered by the Secondary, so as the Parish where the Lands lie were expressed in the Rule. But now Judgement cannot be had by default in Ejectment, unless upon motion in Court, and Affidavit thereupon made, that the Tenant was actually served with a true copy of the Declaration, and that the contents thereof were read unto him; or he, or his Wife, or his Servant, were acquainted with the meaning thereof.   

Of Appearances upon Exigents, Habeas Corpus, Pluries Capias, Distringas, etc.  
IF the Defendant appears upon the Exigent, or upon the Habeas Corpus, Pluries Capias, or Distress, or upon Bail put in upon a Habeas Corpus, or upon an Utlary reversed, then by the course of the Court the Defendant must answer the first Term, because he hath stood out so many Process: and in such cases the Court does not use to change the Visne.   

Of Attachments upon Contempt.  
IF an Attachment be granted upon a contempt sworn by Affidavit (as it ought) and the Defendant is Arrested thereupon, and brought into Court, he ought to be committed to the Fleet, and then to be examined upon Interrogatories: if he clear himself upon his Oath, he shall be discharged, and have his costs paid him by the Prosecutor. If guilty, he shall be fined; but in this case the Prosecutor shall not be admitted to prove the Defendant guilty, after he hath cleared himself upon his Oath. But the course now used in such cases, is, for the Defendant with Sureties, to enter into a Recognizance in Court for his appearance the die in diem, until he be discharged, and then to turn him over to the Secondary to be examined upon his Oath upon Interrogatories, but for want of Manucaptores to send him to the Fleet.   

Of amending Entries, etc.  
BY the course of this Court every Declaration and Plea ought to be entered upon Record, the same Term it is delivered or pleaded, and every Issue and Demurrer the same Term it is joined; and therefore if it be altered or amended before it be entered, he that altereth must pay costs, but if it be once entered upon Record, than there can be no amendment without consent, or Rule of Court upon Motion.  
The Roll wherein the Declaration is entered with an Imparlance to it, is called the Imparlance Roll: the Roll of the next Term after, wherein the Declaration is again entered as before Verbatim, together with the Issue or Judgement to it; that second Roll is called the Issue or Judgement Roll; and if the first Roll, which is the Imparlance Roll, be right; and the second Roll, which is the Issue or Judgement Roll, be mistaken, the Imparlance Roll is the warrant to amend the Subsequent Roll: and if the Imparlance Roll be mistaken, and the Issue Roll both, yet if the Original Writ be right, all the subsequent Writs and Rolls are amendable by the Original.  
If the Defendant pleads a special Plea, he may wave it the same Term before it be entered, or any Replication made thereunto, and plead the general Issue; but if the Term be past, it is intended to be entered, and therefore cannot be altered or waved without consent or motion in Court: yet if in truth the Plea be not entered, but still in Paper it may be amended upon payment of Costs.   

Of Reading Demurrers, Special Verdicts, etc. in Court; and the course used therein by the Prothonotaries.  
AFter the Bar have been once heard over, then Records of Demurrers and Special Verdicts are read, and Wagers of Law taken by the Secondaries. In order, the first Prothonatory gins first, and then the second and third Prothonotary in their courses; and until the Books be delivered to the Judges, and the Record read, the matter in Law ought not to be spoke to at the Bar.   

Of the Chief Prothonotary.  
THe chief Prothonotary swears all the Officers and Attorneys of the Court, and enters the Admissions of Record for the Officers, and for the Attorneys, he enters them in his Remembrance Roll, that they were, Jurati in Curia, and makes certificate thereof unto the Clerk of the Warrants, by which he enters the Attorney's name into the Roll.  
The chief Prothonotary ought to enter all Patents made to the Justices or Officers of this Court, and other Patents of Grace by the King to the Court, and aught to have the first Plea Roll, and the first Common Roll of the Court, and to enter all Writs of Adjournment of the Terms.   

Of the Teste's and Retorns of Writs in all Actions real and personal, and those brought by Attachment of Privilege, etc.  
THere must be nine retorns between the Teste, and the return inclusive of all Writs of Formidon, Writs of Right, Ayel, etc. and in Dower five retorns, and in all other Personal Actions fifteen days, except in Actions brought by Attachment of Privilege which are retornable, de die in diem: and the like is, where the suit is by Bill against a Privileged Person, in which cases, the Continuances are, de die in diem, and always upon a day certain, and not upon a common return.   

The ancient course of giving Warrants to confess Judgements.  
THe Principal in a Bond might formerly have given Warrant to appear for himself and his Sureties, and to confess Judgement for all, and it was Warranted by the course of the Court: But if the Surety died, the Principal could not confess Judgement against the Executor of the Surety, for than he should take away his Plea of plene Administravit: And so it was if the Principal died, his Executor could not confess Judgement against the Surety. But this Practice is quite altered, so that no Principal or other can give Warrant for any but himself only.   

Of Renewing Judgements by Scire facias.  
IF the Plaintiff in a Judgement dies, his Executor must renew the Judgement by one Scirec facias; but otherwise it is where the Defendant dies, there must be two Writs of Scire facias, unless there be Scire feci returned by the Sheriff upon the first Writ of Scire facias, for one Scire feci doth amount to as much as two Nichil's returned.   

Of Persons taken in Execution in foreign Counties  
NO Defendant can be taken in Execution in a foreign County, until there be first a Writ of Capias ad Satisfaciendum, sued forth in that County where the Action lies, and Non est inventus returned thereupon, and filled; or that there be an Execution in the Proper County entered upon the Roll, and a Testatum awarded.   

Concerning the Privilege of the Clerks of the Court.  
THe Clerks of the Court may resort to the Rolls of the Court, to examine their own Entries, and make them right, if there be no Writ of Error brought, nor Rule of Court, nor Recordatur entered to the contrary; in which case the Clerks hands are rendered useless, so as he cannot amend any thing in the Roll, without a Rule of the Court.   

Of carrying down Causes to be tried by Proviso.  
THe Plaintiff must make one Default, in not carrying down the Record of Nisi prius, before the Defendant can take it down by Proviso; except it be in Replevyn, in which Action the Defendant may take it down the first time, and not stay till the Plaintiff makes Default.   

Of giving notice upon Writs of Inquiry, and Nisi prius.  
BY the ancient course of the Court, the Plaintiff was not bound to give the Defendant notice of the speeding a Writ of Inquiry of Damages, but the Defendant, when there was a Judgement against him, than ought to have taken notice at his peril: But that Course is altered by Rule of Court, and now the Plaintiff must give the Defendant eight day's notice.  
The Plaintiff ought to give the Defendant or his Attorney notice of every Trial by Nisi prius, before it be Tried: But if the Record hath been once carried down, and notice given, than the Plaintiff carrying it down the second time (or if the Defendant carries it down by Proviso) there needs no notice.   

Of Declaring upon Reversal of utlaries, and Bail to Writs of Habeas corpus.  
IF the Plaintiff do not Declare within two Terms after the Utlary reversed, or Bail put in upon a Removal by Habeas corpus, etc. the Defendant is not bound to accept the Declaration afterwards. But in such case, the Defendant cannot Non pros. the Plaintiff, and have costs for want of Declaring, because the Defendant was not Arrested upon a Common Writ.   

Of Appearing in Quare Impedit, and Wast upon the Distress.  
IF the Defendant in Quare Impedit, or in a Writ of Waste do not appear upon the Distress, it is peremptory to him, and the Judgement shall be entered against him of course, without moving of the Court.   

Of Arresting Judgement.  
AFter a Verdict is given for the Plaintiff, there is four days from the return of the Habeas Corpora allowed the Defendant, to make an Arrest of Judgement, unless the Habeas Corpora be retornable the last return of the Term: And in that case the Defendant hath day until the last day of the Term, and no longer: And there is no Course of the Court that gives four days after the bringing in of the Postea, but after the return of the Habeas Corpora.   

Of Matters concerning the Prothonotaries; and of the Clerks, and Attorneys of this Court, and their Clients.  
EVery Attorney of this Court when he is first sworn an Attorney, hath an Election to settle himself and his business in which of the three Prothonotaries Office he pleaseth; but after his Election once made, he must continue in that Office, and may not remove from Office to Office, without the Licence of the Court, upon just cause shown against that Prothonotary, from whose Office he would remove: And for the Clerks, they have an Election to be of which office they will, before they are admitted, but when they have made their Election, and are once admitted in an Office, they are concluded, and may not remove without leave of the Court.  
So likewise, where a Cause is first begun, in that Office it must continue to the end of that Cause; As where the Declaration is entered, there the Issue and Judgement must be entered; & the Execution or Scire facias upon that Judgement, must be in that Office where the Judgement is; and so it is for Habeas Corpus upon bail, the Procedendo must go out of the same Office from whence the Habeas Corpus went; and if there be a Scire facias upon the Bail, it must be in the same Office where the Record of the Bail is.  
And likewise, every Client hath an Election to choose what Attorney he pleaseth; but after he hath chosen an Attorney in a Cause, he cannot change him without leave of the Court, upon just cause shown against him.   

Of Trials at Bar.  
FOr Trials at the Bar, they are called in course; the chief Prothonotary hath the first turn, the second Prothonotary the second course, and the third Prothonotary the third course: And the same course (as hath been before observed) is for reading of Records of Demurrers, and special Verdicts, and the like for Wagers of Law, which are always called upon the Quarto die post, after the Bar hath been once heard over.   

Of Declaring in Causes Removed, aswel out of Inferior Courts, as otherwise.  
THe Plaintiff that Declares upon a new Original, where a Cause is removed out of an Inferior Court, must not vary from his first Action, in the Nature of his Action in the County, or in the Sum in demand; and this New Original must be brought within two Terms after the Bail put in, accounting that Term wherein the Bail was taken, for one.  
If the Defendant be Arrested by Capias out of this Court, and afterwards removed by Habeas Corpus, and committed to the Fleet, and charged with this Capias, the Plaintiff in that Capias may by course of the Court declare against the Prisoner in Custodia upon the Capias; and if the Defendant will not Plead, Judgement shall be entered by Nichil dicit.   

Of an Habeas corpus.  
THe Habeas corpus is the Warrant to bring the Prisoner to put in Bail, and the Bail must be taken upon the return of the Writ, or within some few days after, and in the same Term, and then shall be intended to be taken upon the return of the Writ; and therefore where the Writ is retornable upon a day certain, there the course is to put down no day for the taking of the Bail; but where the Writ is retornable, immediate there must be a day of the Caption, which must be some day before the end of that Term next after Teste of the Writ.   

Of Declaring upon Mesne Process.  
BY the Common Practice of this Court now used, if the Defendant be Arrested upon Mesne Process in London, or any other County or City, the Plaintiff may declare against him in such County or City where he was so Arrested, or may lay his Action in any other County in England at the Plaintiffs Election: And the Defendant is bound to accept of as many Declarations, by himself or his Attorney, in any Action whatsoever at the same Plaintiffs suit, (real Actions only excepted) as the Plaintiff hath cause to declare against him; but the Defendant is only bound to put in Bail to the first Action, (if the case so require) and only to appear to all such other Actions, as shall be brought against him by the same Plaintiff, as aforesaid, and to receive Declarations thereupon, without putting in Bail thereunto (except in the first Action only, as aforesaid).  
But note that the Defendant is not bound by the Rules, or Usage of this Court, to accept of Declarations at any other persons suit, than the Plaintiffs; at whose suit he is Arrested, as the course is in the Court of the King's Bench; for that there the Defendant is supposed to be in Custodia Marrescalli, and so to answer, etc.   

Of Nonsuits.  
UPon any Writ sued out of this Court retornable in any Term, the Plaintiff hath that Term wherein the Writ is retornable, and until the last day of the subsequent Term, to Declare against the Defendant, but not afterwards: And if he doth not then Declare, the Defendant upon a Rule given in that Office, where the Plaintiffs Atorney to the Writ enters, may there sign a Non prosedendum, and take out Execution thereupon for his Costs. And there is the same time allowed the Plaintiff, to Declare in the King's Bench, otherwise the Defendant may there have a Non prosedendum.   
FINIS.