A SURVEY of the County JUDICATURES, Commonly called the County Court, Hundred Court, and Court Baron. Wherein the nature and use of them, and the way and order of keeping them is opened; for the great ease and profit of all such as have occasion to keep, or use them. By WILLIAM SHEPPARD Esq. LONDON, Printed by R. DANIEL, and are to be sold by Nathaniel Ekins, at the sign of the Gun in S. Paul's Churchyard. 1656. To the Reader, and all his dear Countrymen. My dear Countrymen, WHiles I think of my day far spent, and my night almost come, when my Body must fall asleep, and my Soul must to God my great Master, that gave it me, to give an account of my Time which I have had, and Talents wherewith I have been trusted: I am pressed to make use of the little time is left me to do what service I may for you. And calling to mind the excellent invention of our Common Law, ( * Coo. 2. part of his institutes, fol. 311. observed by an eminent Judge of the Nation) that men should not be troubled for suits of small value in the great & remote Courts of the Nation, but that they might be heard and determined in the Country with small charge, and little or no travel, or loss of time, it ordained County judicatures, the County Courts, Hundred Courts, and Court Barons; where all Actions of Debt, of the Case, Detinue, Covenant, Trespass, and other personal Actions under forty shillings, (which would be now more than twice so much) were to have been heard and ended. And (as this judge hath it) it was then accounted against the dignity and institution of those high Courts, to hold plea of small or trifling causes. Ne dignitas Curiarum illarum vilesceret, & ne materiam superaret opus. And looking upon our present State, that (as it is generally conceived) a third part of the many thousand actions now depending in Westminster Hall, are such trifling actions, that might be ended in the Country judicatures, were these Courts duly regulated. So that the Law that was instituted for the quiet and defence of man, is now by corruption abused to his vexation, charge, and offence. I cannot but say woe and alas, that we are so miserably fallen and degenerated. And taking notice further that there is at this time upon the spirit of our present Authority, a deep sense of this and some other evils and pressures upon this Nation; with a resolution, as fare, and as fast as it can, to cure them, if we ourselves do not obstruct it. These, and some other such like considerations as these, have put me on the resolution to send this rude draught amongst you: that thereby I may perhaps provoke those that are concerned, and have power in it to endeavour the regulation and reducement of this County judicature again to its pure and primitive institution. And that they that are employed in the keeping of these Courts, may the better know how to keep them; and they for whom they are kept, the better know what to require of, and expect from them that keep them; I have adventured to send this little piece more amongst you. And now if I can but have your good will and good word for all this, it shall suffice to Your dear Countryman W. S. CHAP. I. Of the County Court. THe County Court is a What the County Court is. Court, not of Record, incident to the Sheriff's office, for the hearing and determining of petty matters between party and party within the County; wherein the Sheriff is only a Register or Recorder and the Freeholders of the County are Judges. The stile of this Court is GLOUC. The first Court of E. C. Esquire Sheriff of the County aforesaid held at Gloucester the first day of May, 1655. And the next Court, The second Court, etc. Sect. I. Of the nature of this Court. THe office of the Sheriff The Sheriff's office. hath this Court incident and belonging to it; and not to be severed nor granted away from it. Nay the Lord Protector by his Letters patents cannot grant away the office of the Clerk of the County Court, nor the fees etc. thereto belonging; and if whilst the office or place of the Sheriff remains void, the Lord Protector (by his Letters Patents under the Great Seal) shall grant away the said office of the Clerk of the County, (or Shire Clark of the County) or shall appoint any to occupy or use the same, yet when the Lord Protector shall afterwards make one Sheriff, he shall avoid that grant: for that the County Court, and the entering of all the proceed therein are incident to the office of the Sheriff; & the Sheriff is to appoint such Clarks under him Sheriffs Clark. in his County Court, for whom he will answer at his peril. Sect. II. Of the time of keeping this Court. THese County Courts must The County Court to be kept monthly. be holden and kept from month to month: and must be no longer deferred, but one month from Court to Court, and so these Courts are to be kept every month, upon a day certain, and no otherwise: and the months to be reckoned by eight and twenty days and not by the Calendar; and so within the twelve Shires of Wales, their Sheriffs must keep their Counties monthly. The necessity of keeping this The reason of the keeping this Court monthly. Court every month and upon a day certain, is by reason of the Lord Protectors writs of Exigents which must be read there. Sect. III. Of the place of keeping this Court. AS to the place wherein these Courts are to be kept these things are to be known. First, The Sheriff of Northumberland Sheriff of Northum. (by the statute made Anno 2. Ed. 6. Chapter 25.) is to keep the County Court of that Shire in the Town or Castle of Alnewick, and in none other place. Secondly, The Sheriff of Sussex Sheriff of Sussex. (by the statute made Anno 19 Hen. 7. chap. 24.) is to keep and hold the Shire Court for that Shire, one time at Chichester, and the other time at the Borough of Lewes, and so to be kept by turn for ever: and every Shire Court holden there to the contrary, and all things done therein shall be void. Thirdly, The Sheriff of the Sheriff of Chester. County of Chester, is to keep his Shire Court in the Shire-hall of the said County. Fourthly, The Sheriff's Shire Sheriffs of Wales. Courts in Wales of the County of Brecknock, shall be holden at Brecknock; of Radnor, at new Radnor and Prestene; of Montgomery at Montgomery, and Maghenleth; of Denby, at Wrixham; and of Monmouth at Monmouth, and Newport; by turn, one after another. Fifthly, For the County of Glouc. it may be kept in the city of Glouc. This Court may be kept in other Counties, in any place of the County wheresoever the Sheriff and Freeholders please. Sect. FOUR Of the judges of this Court. AS to the Judges of these Courts; these things are to be known. First, In this Court, (which is of the nature of a Court Baron) not the Sheriff nor the Steward, but as to all actions and proceed by a justicies or other writ, as also in other Suits which are there by plaint without writ, the Freeholders Freeholders or suitors to be Judges. of the County or Suitors are judges there; But as to Outlawries the Coroners only are judges. and the Sheriff, Steward, and Bailiffs are ministers: and therefore the Sheriff can do no act there without the assent of the Suitors, and if he do, an Action of the Case lieth against Action of the Case against the Sheriff. False Judgement. him, not a writ of false Judgement as it doth against the Suitors, if they give a false Judgement: and thereupon they are to be amerced, whether the Suit be upon a justicies or not. Secondly, There must be two Freeholders at the least, or else the Court cannot be held. Thirdly, In some special writ, (now out of use) the Sheriff is Judge there. Fourthly, If the Freeholders do not appear, they may be Affering. amearced, the amearcement affeared, extreated and levied, but it must be done by two Freeholders at the least, and may not be done by the Sheriffs without Freeholders. Sect. V Of the Power and Proceed of this Court in General. THe power in General of this Court is either ex officio, and of itself, or by commission called a justicies, and in Justicies. both cases the Freeholders, not the Sheriffs, are Judges of this Court: and they may by their own authority hold plea of, hear and determine all lesser actions; as actions of debt, trespass, covenant, detinue, account, and the like; and in cases of Replevin, where the debt or damage is not forty shillings, or upwards, and no freehold is in question, and by a justicies they may hold plea of, hear and determine, all actions of what value soever; and notwithstanding the freehold itself being in question. And this not only between persons and parties living within the County where the defendant lives, but also between persons living elsewhere out of the County; for any cause or contract ensuing within the County, or any transitory things. In all which cases their proceeding is much after the example of the higher Courts; by entering of Plaints by the plaintiff himself, or his Attorney, putting in of pledges, filing declarations. And if the Defendant appear not by process of summons, attachment, and distress, upon attachment infinite, till he do appear; which when he doth, he is to plead, and so to the trial of the cause: which is commonly by wager of law, but by consent of the parties it may be by Jeury: as it may be also where the use of the Court is so. And if judgement be given against the defendant, the execution is by distress, a warrant is sent from the Judges to the Bailiff to seize the defendants goods, put them in pound, or sell them, and bring the money in Court for the Plaintiff, as the custom and course of the Court is. And if the Court give judgement, or do any thing contrary to Law, the party grieved thereby must have his remedy by a writ of false judgement. And Executors and Administrators may sue and be sued here, as in other Courts. But we shall open these things more particularly in the things that follow. Sect. VI Of a justicies. A justicies is a writ in the nature of a commission, directed to the Sheriff for the dispatch of justice in his County Court, in some especial cases, wherein of his own authority he cannot deal. And as to this part these things are to be known. First, That albeit the writ doth lie in divers cases, yet at this day it is very rarely used in any case, but in an action of debt, or some such like action, of, or above forty shillings; in which case, the Sheriff hath not power in this Court without this commission. Secondly, That albeit the writ be directed to the Sheriff, yet are the Suitors the Judges, and their proceed alike in this as in other actions. And yet in this it is a County record; and so it is not in the proceed of all the rest. Thirdly, The Sheriff upon this writ may not make a precept to a Bailiff of a Franchise to have his cognizance of the cause; nor may any other but the Sheriff and the high Sheriff (as it is held) himself hold plea upon this writ. Fourthly, A suit here upon Remove. this writ is removable, as another suit is, that is without it. Fifthly, The Sheriff is not bound to make any return of this writ. Sect. VII. Of an Attorney and Pledges. ANy man may make a general Attornees Attorney to sue for, or against him in all pleas in this Court. And for pledges pledges. which are such as do undertake for the Plaint, that they should prosecute the suit, and stand to the judgement of the Court, there ought to be such in this, as in other Courts, of sufficient men of the county: but this it seems is out of use, and not necessary at this day. Sect. VIII. Of a Plaint. THe Plaint is the first entry of the persons to and cause of the action in the Court, upon which all the rest of the proceed are grounded, and is thus: A. B. complains of C. D. in a plea of debt of ten shillings, and so as the case is. And as to this, these things are to be known. First. No Plaint ought to be entered (except in case of Replevins) out of Court, but in full County, and sitting of the Court. And yet the course is otherwise, and (as it seems) good enough. Secondly. The Sheriff or his County Clark, or any other, by either of their commandments, or in their names, may not enter any plaint in any man's name, unless the Plaintiff be present in Court, in person, or else by his Attorney or deputy, and yet this it seems is good enough, though otherwise entered, but for this cause, it may be removed, if it be set forth Remove. and moved in another Court. Thirdly, Nor may any man enter a plaint in the name of a dead man, of purpose to get money of the Defendant. Fourthly, Nor may any of the Officers of the Court enter or cause to be entered, any more plaints than the plaintiff hath cause, and desireth against the defendant. Fifthly, There must be but one plaint for one contract, trespass, or cause. Sixthly, The plaint that is for trespass, may not be vi & armis: for then a prohibition Prohibition. may be had to stay the suit, but leaving out these words, it may be brought there for a trespass, Seventhly, No plaint can be heard in this Court for charters touching Inheritance or Freehold. Eighthly, No plaint or suit can be entered here for debt, or damages to forty shillings or upwards, etc. unless it be upon a Justicies. But under forty shillings it may be for any action of debt, either upon an account made by the parties, or upon an especiallity, or for wages after a hire, or upon a lending, or upon an arbitrement, or the like: and for a detinue, and for actions of the case upon a delivery, or upon a warranty, or upon a Misfesans, or upon a Nonfesans, Nusans, or the like. Ninthly, And upon a Replevin Replevin. for damage fesant, amearcement, rent, or the like: and upon all actions of trespass; for breaking of a house, taking away goods, or the like. And if the debt or damage be forty shillings, or upwards, the defendant may demur to the Demurrer. jurisdiction of the Court, or have a prohibition. And yet Prohibition. it is a question whether these Courts may not hold plea so much now, as forty shillings was then, which is about six pound, but it is not safe to adventure. And it is held clear, That if the declaration be laid for, or above forty shillings, albeit the Jury find the damage under forty shillings, this will not help. Tenthly, If the debt be above forty shillings, as for example, twenty pound, the Plaintiff cannot divide this into twenty several actions to make this Court hold plea of it. for in this case the defendant may wage his law with good conscience, or have a Prohibition. Eleventhly, But if the debt be above forty shillings, and the plaintiff will acknowledge in his plaint the receipt of so much as to bring it within forty shillings, in this case perhaps the plaint may be good. This plaint must be continued from Court to Court, or else may be dismissed, and the Plaintiff will be forced to begin again. Twelfthly, If the Sheriff or any of his officers shall procure others to enter plaints or suits in this Court against other men, they may be punished for it by a special Act of Parliament. Sect. IX. Of the Process of the Court. THe Process of the Court Process. is the precepts that issue out in the actions, and these are either original, which are such as issue out before judgement; or judicial, such as issue out after judgement. Those which we call original, are the summons, and the attachment, and distress; both which (upon the matter are all one.) The venire facias, the Alias and Plures, and distringas or distress. The summons is a warrant Summons to an officer, to warn the defendant in the action to appear to it. And is after this form. The Bailiff of the hundred of S. is commanded to summon C. D. that he be here at the next Court, to answer A. B. in a plea of debt, (or in a plea of trespass, or in a plea of detinue, as the case is,) or more largely after this form. R. S. Esquire, Sheriff of Glove. the County aforesaid, to the Bailiff of the Hundred of W. greeting. Forasmuch as A. B. at my County Court held for the County aforesaid, complains against C. D. in a plea of debt of thirty shillings, (or in a plea of trespass, as the cause is,) and hath found pledges to prosecute, etc. These are therefore to require that you summon the said C. D. that he be here at the next Court; to answer the said A. B. in the foresaid Plea: and that you have there this warrant, and show how you have executed it. Dated the eighth day of August, 1655. Attachment is the second degree Attachment. of Process, and issueth out where the defendant cometh not in upon the Summons; and this is to take the defendants goods, and keep them, to the end he may appear; and is made Briefly after this form. It is commanded the Bailiff of the hundred of S. That he attach C. D. by all his goods and chattels to the end that he may be at the next Court to answer A. B. in a plea of debt, etc. or more largely as before in the other. And in this case, the Sheriff may choose to take away the goods, or leave them with the defendant, (which he will,) and if the defendant appear not, by this at the day of the return of the Attachment he shall forfeit them, but the property thereof by the taking is not out of him, till he hath made default, so that if he appear or be essoyned, the goods are not to be forfeit. The distress is the third degree Distress. of Process, or a third Process; and it is a warrant to the Bailiff to destrayne the defendant by his goods and chattels, to the end that he may be at the next Court to answer A. B. (as the cause is) or largely as before. And the alias and pluries doth not differ from these but hath these words added. It is commanded the Bailiff, etc. as an alias (or as a pluries) the venire facias is a precept to summon a jury to appear to try the case; and it is after this form. It is commanded the Bailiff, etc. or To the Bailiff of the hundred of S. These are to require you the said Bailiff, to cause to come, twelve good and lawful men of your bailiwick that they be here at the next Court to try an issue joined between A. B. Plaintiff, and C. D. defendant, touching a plea of debt (or as the case is) and if the full Jury do not appear, then as many as make default and be not essoyned Amercement. shall be amerced. And a Decem Tales awarded to summon ten more, and the same day given to the first Jury after this form. It is commanded, etc. That he cause to come ten such good and Lawful men of his bailiwick, etc. as in the last. At which day as many as make default and be not essoyned shall be amerced and then an Octo tales. And affer that if needs be a Sex tales. Till a full Jury appear. The judicial Process in this Court, is only the Levari facias which is a precept to the Bailiff Execution. to levy the debt or damage recovered, and the costs of suits, of the goods and chattels of the defendant, and is after this form. It is commanded to the Bailiff of S. That he cause to be levied of the goods and cattles of C. D. twenty shillings which A. B. hath recovered against him in this Court in a plea of debt, for a plea of trespass as the case is) and for his costs and expense in the suit twelve pence. And that he have the same money at the next Court, or thus largely. R. S. Esq. Sheriff of the Glouc. said County whereas A. B. at my County Court held for the said County hath recovered against C. D. twenty shillings in a plaint of debt and twelve pence for his costs of suit, whereof the said C. D. is in the same Court convict by the judgement of the Court. These are therefore to command you according to the custom of the said Court, the said twenty shillings adjudged by the said Court and the said twelve pence for costs that you cause to be levied, and that you have the same money at the next Court to answer the same to the said A. B. and that you have there also this precept, etc. And this precept is given where the defendant is condemned by default, verdict, or otherwise, to levy the debt or damages of the goods of the defendant, which being taken are to be prised and sold to satisfy the Plaintiff: but the goods in this case may not be delivered over to the Plaintiff himself; And as to all these Process Officers. and the execution thereof these things are to be known. First, that the Bailiffs or other officers of the Court upon these Process or precepts must take care duly to execute them; and to make return what they do upon them. Secondly, they may upon these Process, take any man's goods or cattles in any place in the County upon his own or another man's ground. Thirdly, they may enter into any house or close, if the door be open, to do execution of the goods of the party the goods being there. Fourthly, if any default be in the Bailiff, or other officer, in Amercement. the execution of his precept, or making return of it when it is executed, or the like, he may be amerced for it by the Court. And in some cases the party grieved by it may have his action of the case against him. Fiftly, the goods they seize Attachment. or take must be reasonable and not excessive. Sixthly, after Process by Attachments or distresses, once Or distresses. granted the Sheriff ex officio may grant new Process of the same nature. And so after judgement entered he may grant out execution of course, if the Court do not stay it. But otherwise these officers are not to do any thing without the Benchers, except in case of necessity, as granting of Replevins; Replevins. this is done of course. Sect. X. Of the proceed from the time of the defendants being summoned, or attached, to the end of the Suit. THe proceed in these cases is much after the fashion of the proceed in the higher Courts, as in these particulars that follow. First, when the defendant is to come in, sometimes he may Essoyne. be excused by an essoign; for the defendant when he cannot appear at the time appointed by the Court; for reasonable cause, he shall have a further day, and his default shall be saved, and as to this essoyne these things are to be known. 1. That the ordinary causes for which this is allowed are. 1. That either the defendant is in the service of the Lord Protector, or is beyond the sea, or is sick, or the water is so high that he cannot come, or the like. 2. He that casteth an essoign ought to come at the beginning of the Court, when Proclamation is made. 3. If one be essoyned one Court the other may be essoyned the next Court. 4. No essoign is to be allowed by either party without cause shown, which may be without oath. 5. No essoign is to be allowed in these cases following. 1. Where the party himself is seen in Court. 2. Where the party hath an attorney in the same plea present in Court. 3. Where the party made default at the last Court before. 4. Where the party doth come in by distress. Secondly, where the defendant Declaration. doth appear the Plaintiff must see his Declaration be filled, or the Plaintiff may be nonsuit otherwise, unless the Court give further day to him: also he must see to it that it be made perfect or the defendant Demurrer. may demur to it, and put the Plaintiff to make a new Declaration, and yet before the defendant have answered the Amendment. Plaintiff may by order of the Court have any thing amended that is amiss in the Declaration. Thirdly, the defendant when Imparlance. he appears and the Declaration is filled, shall of course have an Imparlance for one Court, (that is) upon his desire he shall have further day given him to answer till the next Court, and this by order of the Court, or agreement of the parties may be again continued to another Court. Fourthly, continuances must Continuances. be made of cases in this Court from Court to Court, as they are in the Courts at Westminster from term to term, to keep the suits in being. Fifthly, the defendant after a perfect Declaration put in; must Pleading. give his answer or plead to it, and for this, these things are to be known. 1. He must plead in the time appointed by the rules of the Court, otherwise judgement will be given against him for his default, by nihil dicit 1. because he saith nothing. 2. His plea must be legal, full and perfect; or else it will be to the advantage of the Plaintiff, for a bad or insufficient plea is in Law as no plea. Sixthly, the ordinary pleas here to action of debt are as in the Courts at Westminster: (as the case is;) as for example if the suit be on a deed. It is not his deed; that it was made by threatening or imprisonment. That he tendered the money at the day, and is still ready to pay it. A release or acquittance by deed, and such like. Or if it be on a Contract without a deed, payment, or obligation made for the debt, an arbitrement, etc. That he doth not owe the money, and such like. And if the suit be against an executor, or administrator, the ordinary plea is, that he was never executor, or that he hath fully administered, or the like. Or if the suit be grounded on a deed, or on a Contract without a deed, that he was within age when he did make the deed or Contract, or if it be against a woman; that she was covert (1.) had a husband when she made the deed or Contract or such like. If the suit be grounded on an arbitrement, that there was no arbitrement Legally made, or that he hath performed the award. If it be on a Replevin for trespass by damage pheasant; that the beasts came in by the default of the enclosure of the Plaintiff; or that he hath title of common there, or the like. And if it be on a distress for rent; That there is no rent behind, or the like. If it be on an action of detinue the ordinary pleas are. That he doth not detain the thing sued for, a release, or a gift to him by the Plaintiff of the thing sued for, or that he did tender the thing sued for before the action brought, or that he is ready to deliver the thing, and hath brought it in Court; or that the Plaintiff did deliver it to him as a pledge for twenty shillings, which he hath not paid; or that the thing sued for was delivered to him by the Plaintiff and another, and not by the Plaintiff alone. And such like. Or if it be an Action of the Action of the case upon an assumpsit. Case upon an assumpsit, the ordinary pleas are, that he did not so assume, or that he is not guilty, a concord performed, or the like. Or if it be in an other Action of the Case, the ordinary plea is, not guilty: and if it be on a warranty, that he did not warrant, etc. And if it be in an Action of Action of trespass. trespass, the ordinary plea is not guilty; also in this case an arbitrement, or concord with execution, tender of amends, before the action brought, may be pleaded. And in all these actions, special pleas may also be pleaded (as the case is.) But if the defendant plead Frehold or foreign plea. his freeheld, or foreign plea not triable there; the Court can no further proceed, and if it doth, the other party may have a writ of false judgement, to avoid the judgement when it is False judgement. given. But in all these cases, the defendant may if he will, refuse to plead any such plea, and confess the action; or let judgement go by, Non sum informatus, defaults, by the saying of his attorney that he is not informed. But upon these pleas, the Trial. Issue. Plaintiff in most cases, may take issue, and put it to a Jury, which is thereupon warned: whereby the Court of any of these Courts, Trials are by Juries, to By Jury. appear to try it. And these appearing, the parties are to have their Challenges, as in other Challenge. Courts. Or by consent of parties, it seems it may be tried by Jury in any case. And upon some of these pleas, pleaded by the defendant, Wager of Law. where wager of Law doth lie, as upon an action of debt brought upon a contract by word without writing, or detinue, he may offer to wage his Law, and may have it for the trial, and cannot be put upon another way of trial. And this is the proper and ordinary way of trial, appointed by Law in all actions in this Court. And where this is admitted, the Court doth appoint the defendant to do it at the next Court; and set down with how many hands, or other men witnesses, he shall wage his Law, which is taken by the Judges of the Court, who do examine the defendant and his witnesses, on oath: and the Plaintiff also, if they think fit. Or the defendant (if he will) By witnesses. may deny the debt, where it is with out a deed, and put it on the Plaintiffs proof, and then he must prove it by witnesses at the next Court, if it be so ordered; and if he do then make default herein, he is to be nonsuit. So if the Plaintiff in person be in Court, (where the Jury Non suit. is ready to appear, or give their verdict) and renounce his suit or withdraw his action, & saith he will follow it no more; or when the parties have demurred in judgement, and have a day given over, and at the day the Plaintiff do not appear, but make default, in these cases Nonsuit. the Plaintiff shall be nonsuit; and judgement shall be given against him for costs of suit. Which shall be levied in the same manner as money recovered against a defendant is levied. And in all these cases, if the Judges where it is to be judged by them alone, or the judge & jury (where there is a jury) shall find for the Plaintiff, they must give judgement for the debt, or damage and costs of suit, as the Judgement. case is; and if they find for the avowant in a Replevin, they Costs. must give damage and costs of suit: or otherwise, if it go against the Plaintiff, or he be nonsuit for not proceeding, judgement must go against him, for such costs of suit for vexation: So that as the Court shall adjudge, if the defendant be condemned by default or verdict, a levarie is to go forth to levy the debt or damage, and costs of suit; and so if costs be recovered against the Plaintiff, and hereupon execution shall be done accordingly by a Levari facias, or warrant appointed to leavy the money. And upon this, the Sheriff's officers, or servants appointed, are to levy so much of the goods of the Plaintiff or defendant, the which they are to take, prize, and sell, and therewith pay the party that doth recover his money, and the costs of suit, and give back the overplus. But neither can the under officers, nor the Sheriff, nor the Court, deliver over, or cause to be delivered over the goods distrained, to the party that is to have the money. Sect. XI. Of a suit by Replevin, and the proceed therein, from the beginning to the end of it. A Replevin is where one What a Replevin is. man distraineth another's goods or cattles: then the party that is distrained, upon giving security to the Sheriff, or his depulie, that he will pursue the action, and return the beasts again, if the taking shall be adjudged Lawful; may have this by writ to the Sheriff, or the Sheriff may do it ex officio: or if it be within a franchise, the Sheriff may send his warrant to the Bailiff of the franchise; and hereby he shall have the goods or cattles restored again. As touching this, these things are to be known. First, that he that brings this writ must have either a general Special property. or a special property in the thing; as of goods pledged, or the like; and this must be in him at the time of the taking, or otherwise he cannot have, or not maintain the Replevin for them. Secondly, if divers men's cattles be taken they may not join in a Replevin, but must have several Replevins. Thirdly, this is grantable in hundred Courts and Courts Barons also. Fourthly, the Sheriff is bound to have four deputies in the County, to make these Replevins; and the Sheriff upon complaint of goods or cattles taken and wrongfully withheld, may send his warrant by word or writing (if it be out of a liberty) to whom he pleaseth to deliver them; and if it be in a franchise, he must first send to the Bailiff of the franchise, to do it, which if he will not do, the Sheriff himself at the last may do it. Fifthly, this the Sheriff doth and may do, either ex officio by virtue of his office, and of his own authority; or by a writ sent to him out of another Court to give him command so to do. Sixthly, the party that sueth it out (be it with or without a writ) must first before he can have it, or the distresses be delivered, enter his plaint in the Court, of the which to the end that deliverance may be made presently by a Replevin, before a Court day he may enter at any time out of Court for the taking of the things; and give a band of forty pound at the least to prosecute the suit, and make return of the goods, if return be awarded by the Court; and if the Sheriff do otherwise, the party grieved may have an action of the case against Action of the case. him, and recover his damage by it. Seventhly, if the things distrained, be put by him that did distrayn them, in a place where the Sheriff cannot come at them to make a Replevin, as a Castle, or the like; he may take the power of the County, and after demand, beat down the Castle to take them, and the owner of the goods shall recover double for his loss, what ever it be. And if the goods be put in a Castle, or driven into another County, or other place where he cannot deliver them upon the Replevin, or Retorno Habendo; he may grant a precept in the nature of a Withernam, to whom he will, to take Withernam. the parties own goods. Or if the Sheriff command the Bailiff of the franchise to make deliverance, and he return that he cannot come at them; the Sheriff at the next County Court may inquire of it by inquest of office; and if he find it true, he may of his own authority grant a precept in the nature of a Withernam to the Bailiff to take the parties own goods. The which goods the Sheriff or Bailiff may either keep, or deliver to the Plaintiff to keep, at his choice. But the defendant is to pay for the keeping of them, before he have them again. And if the Sheriff coming to make a Replevin, and the party that hath the distress, claim propriety in the goods for himself, or for himself and another, of his Master; the Sheriff cannot proceed till this question be decided by a Proprietate Probanda. Proprietate probanda. Which is a writ lying where the Sheriff is coming to make a Replevin by writ, or without, before or after Gager de deliverance; and the party that hath the goods, and distrayneth them, claimeth them for himself, or his Master for whom he distrained, as their own; then the Sheriff can proceed no further in the Replevin, until the Playntiff have sued out this writ, which if the writ were had out of the upper Bench, or common pleas, may be had thence; else out of the Chancery; and thereby the Sheriff may try the property, and if he have no property that pretended it, than the Sheriff may go on in the Replevin. If he had, he must surcease; for in all cases of Replevin, the Plaintiff ought to have the general or special property of the goods, at the time of the taking. For a Replevin lieth upon either property. It is therefore a good plea in a Replevin, that the property is to the Plaintiff and a stranger: but this finding of the Sheriff by this writ, is but an inquest of office; and therefore if it be thereby found against the Plaintiff, yet may he have a writ of Replevin to the Sheriff; and if he retain the claim of property, etc. yet shall it proceed in the Court of common pleas, where the property shall be put in issue and finally tried. But a man cannot claim property by his Bailiff or servant; because if it be found against him, he shall be fined that so doth; which the Lord cannot be, unless he claim himself. Eighthly, this suit, after it is once brought into the Court, and the defendant, which is the party that took the distress, doth appear, is to be determined in this Court. But according to the plea ministered by that party, it becomes real or personal. For where there is property claimed, it is personal. But if the defendant justify the taking, as in his freehold, or for services, or rend behind, or the defendant avow for damage fesant, and the Playntiff justify by reason of common of pasture, than it is real. And then there can be no further proceeding there except it be upon a justicies, but the case must be removed by a writ of recordare, which must be read and allowed in the Court; That the Plaintiff in the Replevin may have notice of the Court wherein it is removed; and of the day, that he do then appear, and declare there against the taker, or else he will have a returno habendo. And then is the defendant to make his avowry, and set forth by what right, or for what cause, he took the cattles. Tenthly, for an avowry is avowry. where one doth estrayne another for rent, or other cause, and the party estrayned sueth a Replevin, against the taker, than he must justify and avow in his plea, the lawful taking of them: and show why he took them, whether in his own right, or a servant, or Bailiff to another. And upon this, the Plaintiff doth usually join issue; and so they go to trial commonly by a Jury. Eleventhly, if after the Replevin brought, the Plaintiff (whose goods be taken) do make default, or be non suited, before declaration, or the like; or judgement be given against him; he that distrained the beasts shall have them delivered to him again by the writ of Returno habendo. Returno habendo. And this writ must have this clause inserted in it. That the Sheriff shall not deliver the goods without writ, wherein mention shall be made of the judgement. And hereupon the Plaintiff if he will may have a judicial writ to the Sheriff, to deliver the beasts to him. Twelfthly, where a plaint is Second deliverance. removed out of the County Court, or Court Baron by Pone or Recordare, into the common Bench, 〈◊〉 after the Plaintiff in the Replevin is nonsuited before any avowry made; notwithstanding this nonsuit, the party that distrained, may have again the same distress, and no other by this writ; which is only to revive the first suit, and the defendant cannot have a recaption in this case, for a double distress: And this is called second deliverance; after which had, and trial thereupon, or that the Plaintiff be again nonsuited before declaration: Return Irreprevisable, shall be awarded Return irreprevisable. to the avowant; & then he may make his attorney to the intent to ground a writ to inquire of damages: or he may hold the beasts as a distress, till he be satisfied, and if any returno habendo go forth before this writ, this is a supersedeas to it; and the Sheriff may not meddle upon it. 1. If after one return awarded, a return shall be another time awarded, there shall be no more Replevins granted. And if upon this default the second time, or otherwise the defendant be adjudged to have a new return, the distress shall remain Return irreplegiable. Irreplegiable. Where one hath sued a Replevin, Gager de deliverance. and yet hath not the goods delivered, and the other avoweth; now he may show this in pleading that the defendant is still possessed of the goods, & pray that he may put in pledges for the deliverance; which when they come to issue, or demurrer shall be granted him, or after avowry, if the defendant do not claim propriety in them: and then a writ shall go to the Sheriff to deliver them; but where the avowant doth clay me propriety in them, this is not grantable. It is a writ lying where a man is distrained for any services: Recaption. and having that suit, he is distrained again for the same cause though the distress be for service due, after the first distress, yet it lieth not till the first suit be determined. Sect. XII. Of costs of suits recoverable in this Court. AS to the costs of suits recoverable in this Court. These things are to be known. First, in all suits whether judgement be given for Plaintiff or defendant, such reasonable costs of suit are to be given as the Court shall set down. Secondly, where the Plaintiff doth not proceed, or the cause doth go against him upon the trial, the Court must give the defendant reasonable costs for the unjust vexation. Thirdly, such remedy and execution shall be made for recovering of these costs, as the Plaintiff hath for recovering of the costs he doth recover in that Court, against the defendant. Sect. XIII. Of Amercements in this Court, and the streets thereof. ANd to this, these things are to be known. 1. The Court may amerce any man, for any contempt or disturbance of the Court, made in the presence of the Court; for in what case a man may be fined in a Leet, he may be amerced here, and this it seems need not be affered, as all others, but Afferement. it is safe to do it. And when any officer doth commit any default, or neglect in the execution of his office; and when the Plaintiff is nonsuit; Quia non est prosecutus. Because he hath not prosecuted, either at the first or after, when the Jury is ready to give verdict; or the Court give judgement, or pro falso clamore. And when judgement is given against the defendant he may be amerced. And when any Bencher juror, Plaintiff or defendant doth make default, he may be amerced: so also every man for his default of appearance after summons may be amerced. But all these amercements upon officers for their miscarriage must be Afferement. affered by the Benchers; the rest by them or some others otherwise they may not be extreated, & they may be levied by Estreates. distress, and putting in pound; not by sale without a special custom in it; and being levied shall go to the use of the Sheriff. And the Sheriff must see that he leavie none of these amercements, until they be first allowed by two justices of the Peace. Sect. XIV. Of removing of suits out of this Court. SUits may be removed out of this into a higher Court. And this is to be done either by a recordare, or by a pone. And Recordare. therefore the recordare is said to be a writ out of the upper Bench, or common pleas, directed to the Sheriff, commanding him to send a plaint that is before him without writ in his County Court into that Court, from whence the recordare is sent, to the end that the case may be there determined. And this the Sheriff must certify under his seal, and the seal of four of the Suitors of the same Court; and he is to summon the other party to be in that Court whether the plaint is to be sent by a day; and a pone doth Pone. nothing differ from this, but that that is to remove such suits as are there before the Sheriff by writ and not by plaint, and as to this these things are to be known. 1. That if these be sued out by the Plaintiff in the County Court, it may be had without showing any cause at all, if it be had by the defendants suit, he must show cause. As first being to remove a plea in a replevin by plaint, to show that the defendant avoweth for damage fesant, and the Plaintiff doth justify for common of pasture, which is a plea touching freehold, and therefore should not be without writ. Or that he before whom the writ depends is a favourer of him that is of the other side. Secondly, if any officer of the Court proceed after the removeall, he may be punished for it in the Court from whence the writ to remove it came, for the suit in Law is now at an end in the inferior Court. Thirdly, and after it is once sent away, it can never be sent back again, but must be tried in the Court into which it is sent. Fourthly, a suit is sometimes removed out of this Court into False judgement. a higher Court by a writ of false judgement. And this writ is defined to be where an erroneous judgement is given in any inferior Court, that is not a Court of record; as County, Hundred, or Court Baron, than the party grieved by the judgement may have this writ, and remove the whole Process of the suit into the common pleas; and there it shall be examined, and if it be found, the judgement shall be reversed, and the Suitors or Judges Jurors amerced. of the Court that gave the judgement, amerced. Sect. XV. Of the Power and duty of the officers of the Court. AS touching the power and duty of the officers and those that act under this Court, these things are to be known. First, the Sheriff may, if he will, appoint special Bailiffs that is, others besides the common Bailiffs to execute the process of the Court. Secondly, some say a warrant from the Court by word may be good in these cases, but it is not safe to trust to such a warrant, but to have it in writing. Thirdly, the officers that have any precept to execute, must do it with all care, and when done or not done, give an account and make a return of it, especially if they take goods in execution; otherwise it is dangerous; for perhaps by the not return, the Act of the officer may become unlawful. Fourthly, in taking of goods they must be reasonable. Fiftly, they may enter into a close, or into any house of any other man's (the door being open) to take the goods of any man there upon any precept. Sixthly, they may take the goods of any man in any place within the County, in another man's house or ground as well as in his own. Seventhly, they are to take upon execution so much of the goods as will satisfy the execution, and bring them into the next Court where they must be prised. Eighthly, they are not to proceed in any case after it is removed into another Court. Ninthly, if the Sheriff or any of his officers shall procure others to commence suits against any person, and shall cause them to resort to this Court. The party attached upon any such suit may replieve his distress so taken, and remove the suit before Remove. the Justices, etc. Before whom if the Sheriff be convicted of such procurement, he shall be amerced grievously to the Lord Protector, and shall answer to Amercement. the party grieved triple damages. Tenthly, the Sheriff (his Shire Clerk, or deputies) shall Estreates. make no estreats to levy the said Sheriffs amercements (or Shire amercements until two Justices of the peace (one of the Quorum) have had the oversight of their Books, and that the estreats be indented between the Justices of the Peace and the Sheriff. Eleventhly, the Officers, that leavie these estreats, aught to be sworn before the justices that they will leavy no more than is upon the estreats. Sect. XVI. Of the Fees of this Court. THe Fees of this Court are The Fees. such as time out of mind have been used to be paid and received i● the Court. And these happily are in some places more, in some places less. But in some of these Courts where they are reasonable, they are as followeth. A Table of all such Fees as are due and payable in the County Court. Fees due to the Court. For every judgement iiijᵈ For every Attachment fugitive ijˢ For a judgement on a justicies i ˢ Fees due to the Steward. For entering of an Action and warrant for the summons iiijᵈ For an ordinary Attachment viᵈ For an ordinary distringas viᵈ For filing of a Declaration iiijᵈ For filing a Declaration on a Replevin xijd d For an appearance iiijᵈ For every plea iiijᵈ For every rule or order of Court iiijᵈ For a venirefacias ijˢ For a warrant for witnesses for every name viᵈ For every witness sworn ijd d for every judgement iiijᵈ for every levari facias or execution xijd d for a copy of the Declaration iiijᵈ for allowance of a justicies ijˢ viᵈ for every warrant upon it ijˢ vid d for every Attachment fugitive if it be against one only ijˢ If more than one at one man's suit, then for the first defendant ijˢ And for all the rest of the defendants xijd d a piece. for allowance of a recordare, etc. ijˢ viᵈ for returning of it ijˢ for a retraxit before judgement iiijᵈ for search for any old Action iiijᵈ Fees due to the Attorneys. For a retaining fee by the Plaintiff xijd d for drawing of a Declaration xiiijd d for appearing for the defendant xijd d The ordinary fee upon a justicies iijs 4d The fee upon a replevin iijs 4d Fees due to the Bailiff. For every ordinary summons viᵈ for executing an ordinary Attachment viᵈ for executing an ordinary distringas viᵈ for summons upon a justicies ijˢ viᵈ for an Attachment upon a justicies ijˢ viᵈ for executing of a distringas upon a justicies ij ● viᵈ for every judgement iiijᵈ for executing of an Attachment fugitive ijˢ for doing execution upon the levari facias, xijd d for the warrant, and jd d in the shilling for all the money that is recovered and levied. for summoning a jury to to try a cause ijˢ viᵈ To every witness sworn for his charges xijd d To a jury that give a verdict, or are sworn in a cause for their attendance. iiijs. Sect. XVII. Certain Rules necessary for a County Court. ANd now having showed what the Law is as touching these Courts, if the Justices of the Peace, Lawyers, and others of the most sufficient Freeholders of the County, shall out of their zeal for the good of their Country meet together and agree upon a Course for the better regulating of this Court, and usually sit in Court to see the Laws therein observed, they shall do a good work that may bring much ease to their Countries. And herein we do (under correction) conceive it may much help hereunto to set down and observe some such like rules as these. First; that such a number of the most sufficient Freeholders do appear every Court, or be content to pay such an Amercement. Secondly, that they set down what number of attorneys; and who shall practise in the Court. Thirdly, that these attorneys, and all the officers that do practice, shall agree to, and observe the rules for practice set down, and take no advantage by error; nor remove of suits or otherwise without consent of the Court for any thing done according to these rules: and that they be content with the Fees set down. Fourthly, that they agree upon a Method of short Declarations, pleading the General issues. Amendment of Declarations mistaken before answer, and entering continuances afterwards, when omitted by the Clerk of the Court and the like, to make the suits there depending short and cheap. These things will help much. And thus we have done with the County Court, and now come to the Hundred Court. CHAP. II. Of the Hundred Court. THe Hundred Court is not a Court of Record, but derived out of the County Court and is of the same nature within the Hundred, as the other is within the Shire; in this Court also the Freeholders falled free Suitors are the Judges; and the Steward their Clark. And the stile of this Court is thus. The Hundred of W. in the Margin and then. The Court of A. B. Knight of his Hundred of W. in the County of C. Held the first day of May one thousand six hundred fifty five before W. S. Steward there. Sect. I. Of the nature of this Court. the time and place for the keeping of it. THis Hundred Court is no Court of Record, but a kind of Court Barron, and of the same nature with the County Court; out of which it was first derived, and set up, for the ease of the people; and therefore the Course and rules of proceeding in, and all the matters relating to this Court, are much like to those in, and relating to that Court. And for that these things are to be known. First, that this Court may be kept in any place within the Hundred, and it must be kept in some place within the Hundred. Secondly, it may be, and is usually kept once every three weeks, upon a day of the week certain; which may (being begun) be adjurned to be ended on another day of the week. And perhaps this day may be changed, or if the Court be kept on another day it may be good enough. But the safe way is to keep it as time out of mind it hath been kept and not to alter it. Sect. II. Of the judges of the Court. THe judges of this Court are the Freeholders, called Free-suitors, which we conceive to be all the Freeholders of Land within, and dwelling within the Hundred. But in some Hundreds some certain Freeholders of the Hundred only are the judges; & the service seems to be appropriate to their Land only: But we conceive that this doth not exempt the rest of the Freeholders of the Hundred, but that they may be charged. But it is safest to keep the Court by those that are bound to the service by their Land, or to have two of them present and if any of these Free-suitors make default they may be amerced, as in the County Court. And the amercement affeared and extreated, as there; but that in this case there is nothing to be done with, or by the justices of the Peace. Attorneys and Pledges. Attorneys may be made and used in this Court as in the Attorneys. County Court, and for Pledges, this usually is the Course, that Pledges. where the Plaintiff doth live out of the Hundred, he is to find pledges of some sufficient men within the Hundred for him; otherwise the defendant is not bound to answer. But what remedy to have against the pledges, If judgement go against the Plaintiff, we cannot tell you, except an Action of the case lie, or some custom have been there time out of mind to charge them some other way. Sect. III. Of the power and proceed in this Court in General to the end of the suit. THe power and proceeding of this Court in General is much like to the power and proceed of the County Court, save only in the case of a justicies: for no justicies doth lie to the judges of this Court. And that this is for the hundred only, and that is for the whole County. And that in most of these Courts there is no distress used to bring the party to appear but a summons and attachment only. And as to amercements Amercements and Estreats. and estreats thereof the rules of the one are all agreeable to the other, save only that the justices of the Peace have nothing to do with the estreats of these amercements. And these amercements go to the Lord of the Leet, not to the Steward. For costs of suit both Courts agree in all things. And for removing of suits the Courts are much alike: Save only that to remove a suit of this Court there is another writ called an Accedas ad Curiam; which is a Accedas ad curiam. writ out of the upper Bench, or common pleas, directed to the Sheriff commanding him to go to such a Court of some Lord or franchise; as County Court, or court Barron, where a Plaint is sued for taking of Beasts, as a distress or some false judgement is supposed to be given in any suit; which hath been in such a Court, which is not a Court of record, and that he do there make record of the same suit in the presence of the Suitors of the same Court, and four Knights of the County; and certify it into the Lord Protectors Court, at the day limited in the writ; and this cannot be had without showing of some cause; and the causes to remove these suits are when a Freehold is in question there, or some foreign plea is pleaded not triable there. Or the like. And for Officers power and duty in these Courts it is altogether the same with the Officers of the County Court; save only that which doth concern the entering of suits in other men's names, and without their privity. And also save only in what doth refer to their relation to the justices of the Peace of the County, as to their estreats. See for these things Chap. 1. Sect. 12. 13. 14. 15. and for the Fees of this Court the same is to be said as in the former Court; their Fees differ, and are by Law what they have been time out of mind. But some of these Courts wherein the fees are reasonable are as followeth. The Stewards' fees. For entering every Action 2d Every order entered 2d Entering Declaration 2d If large then more. Entering every plea or answer 2d Every essoign 2d Every Process 4d Every continuance 2d Every nonsuit and detraxit 4d Entering the Judgement 2d Satisfaction acknowledged 2d Every wager of Law and entry 2d Warrants for witnesses and summoning juries 4d for removing and certifying a cause 6 8d The Bailiffs fees. for Summons & entrance 7d for executing every Process 4d Upon judgement for every shilling 1d for warning of the jury 1 for warning of witnesses on a warrant 4d for every oath 2d The Attorneys fees. for every cause at hearing 1 for the Declaration 4d for every Court the cause dependeth after he is retained 4d Other Officers fees. for the execution of every Process 4d CHAP. III. Of a Court Barron. THe Court Baron is no What a Court Barron is. Court of record, but a Court that every Lord of a Manor, (which anciently were Barons) hath within his Manor, as inseparably incident to his Manor; which Court is said to be double; the one, called the copyholders Court, for the trial of the titles of their land, for the taking and passing of Estates, Surrenders, Admittances and grants, and herein the Lord or his Steward is Judge. And the other is called the Freeholders' Court, which is only for the trial of Actions wherein the Freeholders are judges. The stile of this Court is after this manner. The manner of Dale in the margin. The Court Barron of I. S. Knight of his Manor aforesaid held the first day of May 1655. before W. S. Steward there. Sect. I. Of the beginning and use of this Court. THis Court was first instituted for the ease of the Tenants The nature of it. of the Manor, and ending of suits there under forty shillings. That it might be done at home, as it were at their own doors. And it is much of the nature of the two former Courts. Sect. II. Of the time and place for the keeping of this Court and the judges therein. THe judges here are the Freeholders, that is, such Tenants as have ancient estates of Inheritance in any Lands held of the Manor; And of these there must be two at the least. And therefore when once the Manor is gone, this Court is gone also; or if the Manor continue, and there be but one Freeholder, the Court is gone; nor will new Freeholders (as it seems) made with in the time of memory serve; and therefore copyholders or leaseholders. That by the Inheritance of the Lands, nor of any that buy of the Lord a part of his demesnes, these will not be judges of the Court. The place of keeping of these Courts must be somewhere within the Manor. And it may not be kept without the Manor, if it be, all that is done at the Court is void; and Coram non judice. And yet perhaps where a man hath two or three Manors together; and time out of mind the Court hath been kept in one Manor for all the rest of the Manors, there happily it may be good for all. And the time of keeping of this court is once every three weeks & not oftener, but more seldom as the Lord of the Manor shall please. Sect. III. Of the Power and proceed in this Court. THe power of this Court, where it doth continue, is much as the power of the hundred Court: and the Process, it holdeth plea: under forty shillings also much like unto it. And as for costs of the suit, the power of the Officers, amercements, trial, and removal of suits, the course in this Court is much like to the course of the Hundred Courts; save only that here no Trials are by jury, but all by wager of Law and proof of witnesses. For all this therefore see Chapt. 1. Sect. 12. 13. 14. 15. etc. And for the fees of this Court the same is to be said as in the former Court; their fees differ, and are by Law what they have been time out of mind: but some of these Courts wherein the fees are reasonable are as the fees are in the Hundred Court. The TABLE. ACcedas ad curiam chap. 2. sect. 3. Affering chap. 1. sect. 4. 13. Amercements chap. 1. sect. 13. chap. 2. chap. 3. chap. 1. sect. 9 15. Amendment chap. 1. sect. 10. Attachment chap. 1. sect. 9 chap. 2. chap. 3. Attorney chap. 1. sect. 7. chap. 2. chap. 3. Avowrie chap. 1. sect. 11. Challenge chap. 1. sect. 10. Confession chap. 1. sect. 10. Continuances chap. 1. sect. 10. Costs chap. 1. sect. 10. 12. Court. The County Court. chap. 1. The Hundred Court chap. 2. The Court Barron chap. 3. Declaration chap. 1. sect. 10. Demurrer chap. 1. sect. 8. 10. Distress chap. 1. sect. 9 Estreats chap. 1. sect. 13. Essoyne chap. 1. sect. 10. Execution chap. 1. sect. 9 chap. 2. chap. 3. False judgement chap. 1. sect. 10. 4. Fees chap. 1. sect. 16. chap. 2. chap. 3. Gager de deliverance chap. 1. sect. 11. Imparlance chap. 1. sect. 10. Issue chap. 1. sect. 10. judgement chap. 1. sect. 10. justicies chap. 1. sect. 6. 4. Levari facias chap. 1. sect. 9 Nonsuit chap. 1. sect. 10. chap. 2. 3. Officers chap. 1. sect. 9 13. chap. 2. chap. 3. Plaint chap. 1. sect. 8. chap. 2. chap. 3. Pleading chap. 1. sect. 10. Pledges chap. 1. sect. 7. chap. 2. Process chap. 1. sect. 9 chap. 2. chap. 3. Prohibition chap. 1. sect. 8. Proprietate probanda chap. 1. sect. 11. Recaption chap. 1. 11. Remove of a cause chap. 1. sect. 6. 8. 16. Replevin chap. 1. sect. 11. 9 Recordare chap. 1. sect. 15. Return habendo chap. 1. sect. 11. Return Irreprevisable chap. 1. sect. 11. Second Deliverance chap. 1. sect. 11. Summons chap. 1. sect. 9 chap. 2. Trial chap. 1. sect. 10. chap. 2. 3. Wager of Law chap. 1. sect. 10. chap. 2. chap. 3. Withernam chap. 1. sect. 11. FINIS.