RULES AND ORDERS FOR THE COURT Of the Upper BENCH At WESTMINSTER, Made and published by the JUDGES of the said Court, in the term of St. Michael, In the year 1654.  
LONDON, Printed for Abel Roper, at the sun agrinst St. Dunstans Church in Fleetstreet. 1655.   

RULES & ORDERS FOR THE UPPER BENCH, In the term of St. Michael, In the year of our LORD. 1654.  
1 FOr the reducing of attorneys, and Offcers, to their due attendance.  
2 For the reformation of abuses of Sheriffs, and Bailiffs.  
3 For discovery, and punishment of abuses in general.  
4 For the Constant preservation of ORDER in the Court.  
5 For settling a constant course of practise, pleadings, and proceedings, especially where there hath been variety of opinion, or practise.  

Concerning Officers and attorneys.  
THat all Officers and attorneys of this Court be admitted of some inns of Court, or Chancery, by the beginning of hilary term next, or in the same term wherein they are admitted Officers or attorneys; and be in Commons one week in every term, and take chambers there, or in case that cannot be conveniently, yet to take chambers or dwellings in some convenient places, and leave notice with the Butler, where their chamber or habitations are; under pain of being put out of the Roll of attorneys.  
2 That all Officers and attorneys of this Court appear in person in this Court, upon, or before the fourteenth day of Michaelmas term, and upon, or before the seventh day of every other term, upon pain of ten shillings for the first default, twenty shillings for the second default, and putting out of the Roll upon the third default, the appearance to be entered with the Prothonotarie. And the defaulters to be delivered to the Court upon oath, if required within three daies after the time appointed for appearance.  
3 That every Sheriff have his Deputy in this Court, to return and receive Writs. And that each Deputy yearly before hilary term, have his name and the place of his residence in London or Westminster, set and continued up in Tables, in the Office of the Prothonotarie.  
4 That the Clerks of Assize, their Deputies or Assistants, do personally appear with their Posteas on the first day of Easter and Michaelmas term; And the Deputy Sheriffs, and all other Officers of the Court do personally appear by the essoin day of every second Return of every term; and continue there during the residue of the term, without some just cause to the contrary allowed by the Court.  
5 That for the future, Common Solicitors be not admitted to practise in this Court, unless they be admitted attorneys of either Bench; provided that it extend not to the managing of Evidence at a Trial, nor to private Solicitors, or servants of Corporations, or other persons in the causes of their Masters.  
6 That none be admitted an attorney of this Court for the time to come, unless he hath practised as a Common Solicitor in this Court by the space of five yeers now last past, or hath served, or shall have served by the space of five yeers as a Clerk to some Judge, sergeant at Law, practising counsellor, attorney, Clerk, or Officer of one of the Courts at Westm. unless his Master die, or give over his practise; And be also upon examination, found of good ability, and honesty, for such employment; And that sufficient proof( to be put into writing) be made of such service to the protonotary upon a desire of admittance, and then filled without Fee.  
7 That no person practise in anothers name, nor that any attorney knowingly permit another to practise in his name, upon pain of being put out of the Roll.  
8 That attorneys dismissed by one Court from their practise for misdemeanours, be not after Certificate admitted to practise in another Court, it being contrary to the intent of the Law.  
9 That no Under-Sheriff, or Bailiff of Sheriffs, or Liberties be admitted during such their employment, to practise as attorneys under pain of expulsion from the employment of an attorney, and not to be readmitted.  
10 That such attorneys as have not been attending their employment in this Court, by the space of one year last past, unless hindered by sickness, be not allowed their privilege of attorneys.  
11 That for the prevention of maintenance and brokage, no attorney bee Lessee in an Ejectment, nor Bail for a Defendant in this Court in any Action.   

Concerning Sheriffs and bailiffs.  
THat for the prevention and remedy of delays and abuses in Sheriffs, Under-Sheriffs, bailiffs of Liberties, and their Deputies, and other Bailiffs of Sheriffs, &c. in execution of Process and Writs; If it shall appear that any such Officer shall wilfully delay the Execution, or Return of any Process or Execution, or shall take, or require any undue Fees for the same, or shall give notice to the Defendant, thereby to frustrate the Execution of any Process, or Writ; or having levied money, shall detain it in their hands, after the times of the Returns of their Writs, besides the ordinary course of Amerciaments: The contempt or misdemeanour appearing, an Attachment, Information, Commitment, or Fine to be as the Case requireth; and this as well in case of a late Sheriff, or person before mentioned, as of them at present in Office.  
That to reform the abuses by blanck-Warrants granted by Sheriffs, whereby persons are arrested and driven to extorted compositions for their Liberty, without Process of Law, no Warrants be granted out to any Officer to Arrest or Attach any person before a Writ first come to the Sheriff.  
And whereas Sheriffs have taken immoderate and excessive Fees for execution of Writs of possession, and restitution of possession contrary to law; It is declared, that such immoderate Fees ought not to be taken, and in case such shall be taken, This Court to proceed to punish the same according to Law.   

Concerning the reformation, and punishment of abuses in general.  
ORdered that a Jury of able and credible Officers, Clerks, and attorneys, once in three yeers, be impanelled, and sworn to inquire.  
1 Of the points usually inquirable by Writ( viz.) Falsities, Contempts, Misprisions, and Offences.  
2 Of such who have been admitted attorneys or Clerks, and are notoriously unfit, their names to be presented to the Court, and they to be punished, or removed as the case shall require.  
3 Of new or exacted Fees, and of those that have taken them under whatsoever pretence; And to prepare and present a Table of the due and just Fees, that the same may be fixed and continue in every Office, and likewise for the marshalsea.  
And that some persons be enjoined and sworn to give Evidence ( viz.) some Clerks of the Court, and some attorneys in every county, not excluding others.   

Concerning the better preservation of Order among the Officers and Clerks, and observation of breach of Orders and misdemeanours.  
THat the Court do once every year, in Michaelmas term, nominate 12 or more able and credible practisers in the Court, to continue for the year coming, for the purposes hereafter limited.  
1 That they or any of them examine such persons as shall desire to be admitted attorneys, and appoint convenient times, and places for the same. And in order thereunto, That such persons as shall desire to be admitted attorneys; first, attend the protonotary with his proof of service, then to repair to the persons appointed to examine attorneys; and being approved, to be presented to the Court with the assignation of his Approbation, and then to be sworn in open Court, unless some just exception be against him.  
2 That they give information to the Court from time to time of Breaches of Orders, and miscarriages of Officers, attorneys and Clerks.  
That a settled course of practise and proceedings be settled, especially in those Causes where there hath been uncertainty, and that the inconveniencies in Process, Proceedings, and Pleadings, may be regulated unto a due course, in order whereunto these several things are ordered and directed, according to the method of proceedings.   

Concerning original Suits, and Process, and where laid.  
THat Actions upon the Case, trespass for goods, assault, or imprisonment, arising in any English County, be laid in their proper Counties, unless they arise where the Justices of Ni. Pri. seldom come; and because trespass and Trover for goods, battery, imprisonment and slander, must needs be notorious in what County they arise. The attorney knowingly laying them out of their proper County, unless in the Cases before expressed, or for such other causes as shal be allowed by the Judges of the Court, and duly made appear to be true, to be severely punished.  
That although the Declaration bee delivered seven dayes before the last day of the next precedent term, or after, yet before Plea upon Oath made the Visue may be changed upon motion in the said Transitory Actions the next term after, and the Defendant to pled to the new Action, as he should have done in the other without delay.  
That the Visue may be changed upon Oath, as before, though the Defendant come in by exigent.   

Concerning process and serving thereof.  
THat according to the provision of the Statute 31 Eliz. all attorneys that Sue out Process of Exigent, be careful that Writs of Proclamation be delivered, and the Sheriffs do take care duly to execute the same.  
That according to the Statute of 23 Hen. 6. A prisoner taken upon a Capias in process, be not discharged till he hath given Bond to appear, unless the Plaintiff, or his attorney shall consent to take an appearance without Bail, and in such case the Warrant of attorney to appear to be subscribed or accepted by the Defendants attorney, and such Warrant not to be revoked, and an Attachment to be granted against the Bailiff offending herein, or against the attorney refusing to appear, or procure an appearance, having so subscribed or accepted.   

Concerning H. Corp. to Sheriffs, and gaolers.  
THat a Habeas Corp. cum causa ad faciend. & recipiend. directed to any Sheriff other then London or Middlesex, not to be returnable immediate, or in the Vacation-time, but at a day certain in Court, in the term, unless it be to deliver over to prison in discharge of his Bail.  
That such Habeas Corp. to the Sheriffs of London or Middlesex, may be granted in term or Vacation-time returnable immediate.  
That in case of a Habeas Corp. returnable immediate, the Sheriff ought to make his return the same day that the Writ is delivered, and to bring the body immediately as is required by the Writ, without permitting him to wander abroad by colour or pretence thereof.  
That where a Writ of Habeas Corp. is directed to a Sheriff, Warden of the Fleet, or gaoler, the prisoner is to bee brought in custody according to the Writ at the day limited, without being permitted to wander abroad in the mean time under pretence of such Writ.  
That a Habeas Corp. ad respondend. may be granted to the Warden of the Fleet, or the Keeper of an inferior Prison of a liberty, or Franchise returnable at a day certain in Court; and to be a good cause of Deteyner, as well as where a Capias ad respondend. comes to a Sheriff.  
That a Habeas Corp. ad fatisfaciend. may be granted to the Warden of the Fleet, or to such inferior gaoler returnable in Court at a day certain, and the number-Roll of the Judgement to be endorsed upon the Writ by the Attorney. who sues it out, and such Writs to be a cause of Deteyner.  
That if upon a Habeas Corp. cum causa, the Prisoner be returned charged with Process out of the Common-Bench, or Exchequer, though returnable at a day to come, the Prisoner may be committed with those causes.  
If upon a Habeas Corp. or Cepi Corp. the party be returned in Custody, and Bailable, and special Bail requirable, the Bail not to to bee taken absolutely without consent of the Plaintiff, or his attorney; and if taken De been esse, the Prisoner not to be discharged till the Bail be assented unto, or the Plaintiff over-ruled in Court to accept the same upon examination.   

Concerning Habeas Corp. to inferior Courts, and Procedendo.  
THat Writs of Habeas Corp. directed to the inferior Courts of London, Westminster, Southwark, and other Courts within five miles of London, may be returnable immediate; and if the Defendant intendeth to be bailed, then upon, or within four daies after allowance of the Writ, notice is to be given in writing, of the names and addition of the Bail, the time when, and the Judge before whom the same is intended to bee put in, to the Plaintiff, or his attorney, or him that caused the plaint to be entred; or if none can be found, then notice of the premises to be left in writing with the chief Clerk of the inferior Court, or his Deputy, by the party that tenders the Bail, or his attorney, and Oath made thereof, otherwise the Bail not to be taken, and a Procedendo granted, if desired, before Bail accepted.  
That if no Bail in such cases be put in within eight daies after the Habeas Corp. allowed in those Courts when it is returnable immediate, a Procedendo may be granted by any Judge of the Court, if desired, before Bail taken.  
That if a Bail be taken in the absence of the Plaintiff, or his attorney, the same is to be taken De been esse; and if no Exceptions be taken within twenty dayes after notice given to the Plaintiff, or his attorney, of the names of the Bail, and before whom taken; Then upon Oath made of such notice, the Bail to be delivered out to be filled.  
That if Bail upon a Habeas Corp. be taken before a Judge at his Chamber, and not excepted against, if not filled within four dayes after the twenty dayes, a Procedendo may be granted, upon certificate that it is not filled.  
That in Terme-time the Plaintiff in the inferior Court may speed the Defendant to put in, or to file his Bail by rules given, and if not filled according to Rules, upon certificate thereof, a Procedendo to be granted.   

Concerning special Bail.  
THat in all Causes of removal, be it by Habeas Corp. privilege, or Cerciorari, special Bail ought to be given.  
That upon a Cause removed, by Habeas Corp. out of the Courts of Canterbury, Southampton, Hull, Lichfield, or pool, which are Counties where the Judges of Ni. Pri. seldom come, if the Action be transitory, it be laid in the County of Kent, Southampton, York, Stafford, or Dorset, where the Town and County lieth.  
That in Covenant, because the Damages uncertain till declaration, Bail at discretion.  
That in Battery, Conspiracy, false Imprisonment, no special Bail of Course without special Motion and Order.  
That in Slander no special Bail, except in Slander of Title, wherein to be left to discretion of the Judges.  
That in privilege( other then for Fees or disbursements in Court, as an attorney of this Court) Bail at discretion of the Court, in such case wherein a svit by a Common person, special Bail not requisite.   

Concerning Appearances, & entering thereof.  
THat an attorney of either Bench accepting a Warrant, or subscribing a process, Declaration or Warrant to appear, be compelled to cause an appearance, or liable to an Attachment, or put out of the Roll, as the cause requires; and the Party not to be received to Countermand such appearance after his retainer.  
That no person without Rule of Court, Order of Judge, or protonotary, and notice to the adverse Party or his attorney, change or shift his attorney; And such attorney newly coming in, to take notice at his peril, of the Rules whereunto the former attorney was liable, had he continued.  
That a retainer of an attorney of the Common Pleas, by an Attorney of the Upper-Bench, and E converso, be a sufficient excuse to the Attorney so retained, acting according to such retainer; and the Attorney so retaining, without warrant from the Party, to be liable to punishment.   

Rules to Declare and pled.  
IF the Defendant be committed to the Prison of the marshalsea, by the process of this Court, the Prisoner giving Rules to declare, and notice thereof to the Plaintiff or his Attorney, and Oath thereof made, The Plaintiff not Declaring before the end of the second term after Commitment inclusively, Then the Defendant in reference thereunto, to be discharged of the Imprisonment in the end of the second Term upon Common Bail.  
And if any Defendant be committed to any other Prison, upon any process of this Court, giving Rules and notice as before, and Oath thereof made; If the Plaintiff do not remove the prisoner, and Declare before the end of the second Term after the Commitment inclusively, Then the Defendant in reference thereunto likewise to be discharged of the Imprisonment in the end of the second Term, upon Common Bail.   

Concerning Declarations.  
FOr avoiding of long and unnecessary repetitions of the Original Writ in Actions upon the Case, and Personal Actions upon Penal Statutes.  
That Declarations in Actions of trespass upon the Case, or Personal Actions upon any general Statute, namely, Hue and Cry, Monopolies, or for a svit in the Admiralty, and such like, other then Debt, repeat not the original Writ, but only the nature of the Action, viz. A. B. was Attached to answer C. D. in Plea of trespass upon the Case, or in a Plea of Trespass and contempt against the Form of the Statute.  
For the avoiding of the Common Bar, and new assignment.  
The Declaration upon an Original Quare Clausum fregit may mention the place certainly, and so to prevent the use and necessity of the Common bar and new assignment.   

That unnecessary Length of Declarations be reformed, and in Order thereunto,  
THat in Actions of Covenant, not to repeat more of the dead then is necessary for the assignment of the Breach, and not to repeat the Covenant in the conclusion.  
In Actions of Slander long Preambles forborn, and no more enducement then what is necessary for the maintenance of the Action; but when it requires a special enducement, or colloquium.  
That in Actions upon general Statutes, the Declaration not to repeat the Statute, but to conclude against the form of the Statute, in such case made and provided; as in case of Debt upon the Statute of 2 Ed. 6. for tithes, and 32 Hen. 8. for maintenance, 21 Jac. of Monopolies.  
That in Actions of Debt upon a judgement had in the Courts at Westminster, to recite onely the judgement; but if a judgement had by or against an Executor or Administrator, then the Action of Debt upon that judgement, to repeat the declaration and judgement.  
That the Plaintiff may amend his Declaration paying costs, or giving an Impariance at the Plaintiffs election; by the order of Court, or a Judge after it is entred, if the amendment be but a small matter, that it doth not deface the Roll.   

Concerning the entering of Rolls, and by Whom.  
THat no Rolls be delivered to bee Entred but to the Prothonotaries Clerks.  
That no Rolls be carried into the country, under pain that the Offender be excluded from entering any more rolls afterwards as a Clerk.   

Concerning Imparlances upon Suits by Original.  
FOrasmuch as some inconveniences do sometimes happen to the Plaintiffs by entering their Declarations in special Actions: It is therefore Ordered, that the Plaintiffs in such special Actions, shall have liberty to enter Imparlances the term following, entering the same of the first Term with an Incipitur, as it hath been usual; and that all other Imparlances be duly entred before any Issues, Demurrers or Judgements, thereupon be entred.  
That if a Defendant appear the first Term, and give no Rules to Declare, the Defendants Attorney may the second term be compelled to accept a Declaration with an Imparlance, and the Declaration may be entred as of that Term, with an Imparlance over to the next Term, or in the first Term with an Incipitur as before, as the case shall require.  
That if the Plaintiff declare not the second term, though the Defendant give no Rules; yet a Non svit may be entred at the end of the second term, upon a continuance over by him, by dies datus, but not the third term or after.  
Upon a mere real Action an Imparlance to be of Course.  
That in Ejectment, or any personal Action, if the appearance be the first return of hilary or Trinity term, no Imparlance without consent or special Rule.  
In Causes other then London or Middlesex, if the appearance be before Crastinum Martini, or Mensem Pasche, no Impariance without consent or special Rule; but if upon, or after those returns an Imparlance of Course.  
In London or Middlesex, if the appearance be before Crastinum Ascensionis, or before the last return of any other Term, no Imparlance without consent or special Rule, but the Defendant to pled as of that term, within fourteen dayes after the end of the term, upon Rule given to answer; but if of Crastinum Ascensionis, or the last Return, then an Imparlance of Course.  
If a Writ be Returnable Quinque Pasche, or the last Return of any term, the Defendant giving Rules, and calling for a Declaration, if it be not delivered four dayes before the essoin day of the ensuing term, or more, a Non-suit to be entred.   

Concerning Pleading.  
THe Common Bar and new Assignment to be forborn, where the certainty is contained in the Declaration, equivalent to a new Assignment.  
That Pleading be succinct, without unnecessary repetitions.  
That in the pleading of an outlawry, the mean process be not repeated, but the Exigent and Outlawry joined to the commencing of the svit.  
That in pleading a general Statute, the Statute be not recited, as the Statute of 21 jacobi of Limitations.   

Concerning Demurrers.  
THat according to the Statute of 27 Eliz. upon Demurrers, the Causes be specially assigned, and not involved with general unapplied expressions of double, negative pregnant, uncertain, wanting form, and the like; but to show specially wherein, that the other party may, as the cause shall require, either join in Demurrer, or amend paying Costs, or discontinue his Action.  
That it be Declared that matters of Form, as well on the part of him that demurs as of him that joins, in all parts of the Pleading are discharged, unless such as are specially assigned upon the Demurrer.   

Concerning Trials, and Notice of Trials and inquiries.  
IF the Plaintiff give notice of a trial, and he proceed not, the Plaintiff not to take it down to trial again without new notice to be given, unless by consent or Rule of Court.  
That in case of such Warning, and no proceeding, the Defendant upon motion to have his Costs of his former Attendance to be taxed by the protonotary, unless he give the Defendant warning in convenient time that he would not proceed, or show cause to be allowed in the Court in excuse of such Costs.   

Concerning Trials at Bar.  
THat for the remedy of excessive Charges of the Trials at the Bar, especially whilst the Jury lieth out, it is Ordered that a Jury lying out one night after a privy Verdict delivered, there be allowed for the whole Diet of each Jury-man that night, no more then three shillings four pence a piece, and for two tipstaffs and one Crier or Usher, to each of them no more then two shillings Ordinary, besides the Charges of the Jurors Lodging.   

Concerning Special Verdicts at the Bar, and by Ni. ●ri.  
IN finding of special Verdicts where the Points are single, and not complicated, and no special conclusion, the council, if required, do subscribe the Points in question, and agree to amend the Omissions, or mistakes in the mean Conveyances, according to the truth, to bring the Points in question to Judgement.  
That unnecessary finding of Deeds in haec verba, where the question rests not upon them, but are onely derivation of Title, to be spared and found shortly, according to the substance they bear in reference to the dead, as Feoffment, Lease, Grant, &c.   

Concerning new Trials.  
THat where a Verdict finds entire Damages, where Damages are the principal, & part not actionable, though Judgement be arrested, yet by Rule of Court, a Venire facias de novo may issue, as upon an ill Verdict; And upon the new trial, the Party may sever his Damages.   

Concerning Judgements.  
THat upon a Cause removed by Habeas Corpus out of an inferior Court, having Jurisdiction of the Cause, if Judgement for the Plaintiff, the costs below to be considered and cast into the Judgement; if for the Defendant, the charges of putting in Bail.  
That in a Judgement by non sum informatus, or nihil dicit in an ejectione firm, the Capiatur be entred upon the first Judgement.  
And lastly, it is declared, That as the Court doth expect that all the Rules and Orders before mentioned, shall be duly observed; And are resolved severely to punish such as shall break or neglect any of them. So it is further declared, That all other former Orders and Rules yet in force, not hereby altered, suspended, or adnulled, shall be likewise observed & put in execution according to the true intent and meaning of the same.  
By the Court. 

Henry roll.  
Richard ask.  
Richard Newdigate.      

The Oath to be taken by every Attorney of the Upper Bench before their admittance.  
YOu shall do no falsehood or deceit, nor consent to any to be done within the Court of Upper Bench. And if you shall know of any to bee done, you shall give notice thereof to the Lord Chief Justice, and other his brethren, Justices of that Court, that it may bee reformed. You shall delay no man for lucre, or malice: You shall increase no Fees, but you shall bee contented with the old Fees accustomend: You shall pled no foreign Pleas, nor sue any foreign Suits unlawfully to hurt any man, but such as shall stand with the Order of the Law, and your Conscience: You shall Seal all such Process as you shall sue out of this Court, with the Seal of the said Court, and see the Officer satisfied for the same; You shall not witting nor willingly sue, or procure to be sued, any false Suits, nor give aid nor consent to the same, upon pain to be expulsed the said Court for ever. And further, You shall use and demean yourself in the Office of an Attorney within this Court, according to your Learning and discretion.  
So help you God.  
FINIS.