Concerning Prisoners.

IF a Prisoners Body with his Causes be removed by Habeas Corpus or Writ of Priviledge, if the Prisoner be there in person, he must under­take in double the sum, and his Bayl in the single sum. But if [Page 2]the Prisoner be not there in person, then the Bayl must be in the double sum.

If such a Prisoner when he comes in Court, or before the Judge, hath no Bayl, 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 Judgment 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 [Page 3]of priviledge to turn the Prisoner over to the Fleet.

If a Prisoner be committed to the Fleet pro defectu Ma­nucaptorum, and lyes 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, then 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 Bayl bring in the Principal at any time be­fore a Plea pleaded to a Scire facias versus Manucaptores, or before Judgment by default, the Court hath used to receive the Principal in discharge of the Bayl; and if the Plaintiff will pray him in Execucion, he shall have him; if not, then 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 antiently the Prin­cipal [Page 5]could not render his bo­dy in discharge of his Bayl 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 [Page 6]Librarum or more, and rever­seth the Utlary, the De­fendant in such a case ought to put in Special Bayl, but in all other cases (except in Writs of Priviledge 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 Bayl 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 [Page 7]Arrested, otherwise a common Appearance is sufficient.

In all Writs of Priviledge at the suit of an Officer of the Court, the Defendant, if he be Arrested, must put in special Bayl, although the debt or da­mages demanded, be under twenty pounds; and if an Officer or Attorny 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 [Page 8]Bill or Writ; But if one priviledged person sue another, the Plantiff may, and doth usu­ally Arrest the Defendant, whether he be of this, or any other of the Kings Courts at Westminster, for that the first priviledge 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 [Page 9]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 [Page 10]he was arrested be spe­cial, according to the truth of the Action, and retornable the first or second retorn in any Term, so as a Venire facias may issue forth, there the De­fendant ought to answer the first Term in all personal and mixt 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 Kings Bench is, because the Defendant being arrested upon a general Writ, a Lati­tat could not know the cause of Action until the Declara­tion. [Page 11]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 Kings Bench up­on their new Writ of Aceciam bille, as in the Common Pleas upon Special Writs.

Of signing and entring of Judgements.

BY the course of the Court, after the ordinary rules given in the Office be out, the Plaintiff may enter Judgment 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 Judgment is to be entred by nichil dicit without motion in Court; and there was former­ly a rule made, that no Judge­ment by default should be en­tred in Ejectment, without mo­ving the Court; which rule was afterwards altered by a­nother, and then Judgment might have been entred by de­fault upon a Rule entred by the Secondary, so as the Parish where the Lands lye were ex­pressed in the Rule. But now Judgment cannot be had by default in Ejectment, unless up­on motion in Court, and Af­fidavit thereupon made, that [Page 14]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, &c.

IF the Defendant appears up­on the Exigent, or upon the Habeas Corpus, Pluries Ca­pias, or Distress, or upon Bayl put in upon a Habeas Corpus, [Page 15]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 [Page 16]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 de die in diem, until he be discharged, and then to turn him over to the Secon­dary [Page 17]to be examined upon his Oath upon Interrogatories, but for want of Manucaptores to send him to the Fleet.

Of amending Entries, &c.

BY the course of this Court every Declaration and Plea ought to be entred upon Re­cord, the same Term it is de­livered or pleaded, and every Issue and Demurrer the same Terme it is joyned; and there­fore if it be altered or amend­ed before it be entred, he that altereth must pay costs, but if [Page 18]it be once entred upon Re­cord, then there can be no amendment without consent, or Rule of Court upon Mo­tion.

The Roll wherein the De­claration is entred with an Im­parlance to it, is called the Im­parlance Roll: the Roll of the next Term after, wherein the Declaration is again entred as before Verbatim, together with the Issue or Judgment to it; that second Roll is called the Is­sue or Judgment Roll; and if the first Roll, which is the Im­parlance Roll, be right; and the second Roll, which is the Issue or Judgment Roll, be mistaken, [Page 19]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 Originall 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 entred, or any Replication made there­unto, and plead the general Is­sue; but if the Term be past, it is intended to be entred, and therefore cannot be altered or waved without consent or mo­tion in Court: yet if in truth the Plea be not entred, but still [Page 20]in Paper it may be amended upon payment of Costs.

Of Reading Demurrers, Spe­cial Verdicts, &c. 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 begins first, and then the second and third Pro­thonotary in their courses; [Page 21]and untill the Books be deli­vered to the Judges, and the Record read, the matter in Law ought not to be spoke to at the Barre.

Of the Chief Prothonotary.

THe chiefe Prothonotary swears all the Officers and Attornies of the Court, and enters the Admissions of Record for the Officers, and for the At­tornies, he enters them in his Remembrance Roll, that they were, Jurati in Curia, and [Page 22]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 ought 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 Priviledge, &c.

THere must be nine retorns betwen the Teste, and the retorn inclusive of all Writs of Formidon, Writs of Right, Ayel, &c. and in Dower five retorns, and in all other Personal Acti­ons fifteen dayes, except in Actions brought by Attach­ment of Priviledge which are retornable, de die in diem: and the like is, where the suit is by Bill against a Priviledged Per­son, in which cases, the Con­tinuances [Page 24]are, de die in diem, and alwaies upon a day cer­tain, and not upon a common Retorn.

The antient 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 Judgment for all, and it was Warranted by the course of the Court: But if the Sure­ty dyed, the Principal could [Page 25]not confess Judgment against the Executor of the Sure­ty, for then he should take away his Plea of plene Ad­ministravit: And so it was if the Principal dyed, his Exe­cutor could not confess Judg­ment against the Surety. But this Practice is quite altered, so that no Principal or other can give Warrant for any but himself onely.

Of Renewing Judgments by Scire facias.

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

Of Persons taken in Execution in forrein Counties

NO Defendant can be ta­ken in Execution in a forrein County, untill there be first a Writ of Capias ad Sa­tisfaciendum, sued forth in that County where the Acti­on lies, and Non est inven­tus retorned thereupon, and filed; or that there be an Ex­ecution in the Proper Coun­ty entred upon the Roll, and a Testatum awarded.

Concerning the Priviledge 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 en­tred to the contrary; in which case the Clerks hands are ren­dred useless, so as he cannot amend any thing in the Roll, without a Rule of the Court.

Of carrying down Causes to be tryed 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 antient 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 Judgment against him, then 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 dayes notice.

The Plaintiff ought to give the Defendant or his Attor­ney [Page 31]notice of every Tryal by Nisi prius, before it be Try­ed: But if the Record hath been once carried down, and notice given, then 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 Ʋtlaries, and Bayl to Writs of Habeas corpus.

IF the Plaintiff do not De­clare within two Terms after the Utlary reversed, or Bayl put in upon a Re­moval by Habeas corpus, &c. 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 Wast do not appear upon the Distress, it is perempto­ry to him, and the Judge­ment shall be entred against him of course, without mo­ving of the Court.

Of Arresting Judgment.

AFter a Verdict is given for the Plaintiff, there is four dayes from the retorn of the Habeas Corpora allowed the Defendant, to make an Ar­rest of Judgment, unless the Habeas Corpora be retorna­ble the last retorn of the Term: And in that case the Defen­dant hath day untill the last day of the Term, and no longer: And there is no Course of the Court that gives four dayes after the bringing in of the Postea, but [Page 35]after the retorn of the Habe­as Corpora.

Of Matters concerning the Prothonotaries; and of the Clerks, and Attornies of this Court, and their Clyents.

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 [Page 36]not remove from Office to Office, without the Licence of the Court, upon just cause shewed 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 entred, there the Issue and Judgment must be [Page 37]entred; & the Execution or Sci­re facias upon that Judgment, must be in that Office where the Judgment is; and so it is for Habeas Corpus upon Bayles, the Procedendo must go out of the same Office from whence the Habeas Corpus went; and if there be a Scire facias upon the Bayl, it must be in the same Office where the Re­cord of the Bayl is.

And likewise, every Cly­ent hath an Election to chuse 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 shewed against him.

Of Tryals at Barre.

FOr Tryals at the Barre, they are called in course; the chief Prothonotary hath the first turne, 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 alwayes cal­led upon the Quarto die post, after the Barre hath been once heard over.

Of Declaring in Causes Remo­ved, aswel out of Inferiour Courts, as otherwise.

THe Plaintiff that Declares upon a new Original, where a Cause is removed out of an Inferiour 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 Bayl put in, accounting that Term wherein the Bayl was taken, for one.

If the Defendant be Arrest­ed [Page 40]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, Judgment shall be entred by Nichil dicit.

Of an Habeas corpus.

THe Habeas corpus is the Warrant to bring the Prisoner to put in Bayl, and the Bayl must be taken upon the retorn of the Writ, or within some few dayes after, and in the same Term, and then shall be intended to be taken upon the retorn 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 Bayl; but where the Writ is retorn­able, [Page 42]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, [Page 43]or may lay his Action in any other County in Eng­land at the Plaintiffs Election: And the Defendant is bound to acept 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 Bayl 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, [Page 44]without putting in Bayl 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 Kings Bench; for that there the Defendant is supposed to be in Custodia Marrescalli, and so to answer, &c.

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 [Page 46]his Costs. And there is the same time allowed the Plain­tiff, to Declare in the Kings Bench, otherwise the Defen­dant may there have a Non prosedendum.