Law, Book 4 · Chapter 26
CHAP. 26.
Of Originall Proceſſe.
HItherto of the firſt matter of the ſuit, it followeth to ſpeake of originall Proceſſe.
Originall proceſſe is that proceſſe which is till the defendant do appeare.
Originall proceſſe is ſingle or … Single, which is by the poſſeſſions …, (land or goods) or onelyonly by the perſon.
That by the land is of two ſorts. Firſt ſommons and grand cape in a praecipe q…d reddat.
The Sommons is a warning of the tenant in his land, but not by his goods, … by a rent ſeruice, rent charge, rent ſeeke, or a Common which hee hath, for there the land is anothers by certaine ſommoners, two at the leaſt. The Sommons vponupon … action brought againſt one as heire, … 13 …. 2 Iudg. 170.be in land that did deſcend, otherwiſe it is in any land.
If it bee to recouer the freehold of … …7 H. 6. 26.it muſt be in the ſame land, elſe making default, hee may at the grand cape wage his law of non ſommons. But if he appeare, it makes no matter in what land hee be ſommoned. A grand cape is a pr… Old N. B. 177. 50 …. 3. 16.to take the land into the Kings hands by the view of lawfull men, called thereupon Veyors, as the other are Parnors, with a ſommons of the Tenant to anſwer (a)38 H. 6. 33.as well to his default, as to the demaundants action, and therefore it is called a grand Cape. Therefore here the Tenant is ſuffered Old N. B. ibid.to ſaue his default as to ſay, that he was not ſommoned according to the Law of the land, and thereof is ready to do his law; or that he was in priſon, or diſturbed by water, &c.
And the King ſhall hauehave the land to his S…. P…r. 84.…wne vſe, the Sherife being accomptable of …e iſſues therof from the default, til iudge…ent for the demandant.
Statutes.
31. Eliz. cap. 3. VponUpon a Somon in a reall …ction fourteene dayes before the returne, a …roclamation of the Somons ſhall be on a …onday immediatly after diuine ſeruice, at …he doore of the Pariſh Church where the and lyeth, and returned with the names of …he Sommoners. And till that done, no Grande cape ſhall goe out, but an alias & …luries as the caſe requireth.
If the Tenant bee returned ſommoned, 22 H 6. 41.where in deed hee was not, the writ ſhall abate.
Secondly, it is ſommons & reſommons, or another like ſommons in a mortdaunceſtor, Iuris vtrum, and an aſſiſe of darrein preſentment.
By the goods, as in aſſiſes of nouel diſſeiſin and nuſance, where the originall proceſſe is a Pone per vadios & ſaluos plegios. A Pone per vadios & ſaluos plegios is a proceſſe to attach the defendant by certaine of his (a)35 H. 6. Br. Attachment 20.proper goods not borrowed, or in pledge vntounto him, beeing meere perſonall chattels, neither a (b)7 H. 6. 10.chattell reall, as a ward, &c. nor (c)27 H. 6 2.parcell of his freehold as a clod of earth, &c. which hee ſhall (d)9. H. 7. 9.forfeit if he appeare not. (e)ibid.And the Sherife may take thoſe goods with him, or leaue them with the partie at his pleaſure. But whetherſoeuer hee doe, the propertie is no… out of the partie till he make default.
The originall proceſſe by the perſon is … Capias (which is proceſſe to impriſon him) then an exigent or ſolemne (a)Br. per Stamf. 15.demaund … fiue ſeuerall Countie Courts immed… following one another. Therefore (b)32 E. 3. Exigent 14.no Allocato comitatu lyeth if a Countie be holde… after an exigent returned, and for not app… ring, iudgement, to be out of the protection of the King and his Lawes, which wee call outlawry. The (c) iudgement whereof i… to bee giuen by the Coroner in the f… Countie. For (d)35. H. 6. 6. Br. Exigent 24. 11. H. 7. 26.at the Common Law there is no outlawrie, but where the writ is vi & armis, as in treſpaſſe, conſpiracie, felony, &c. And the reaſon why it lyeth there, is, becauſe they are acts founded vponupon the ſole tort of the defendant. And this is in m… felonie and treaſon.
Statutes.
1. H. 5. cap. 5. In eueryevery originall writ of actions perſonals, appeales, & enditements, in which the Exigent ſhall bee awarded: to the names of the defendants in ſuch writs, originall appeales and enditements, additions ſhall be made of their eſtate and degree or myſterie, and the Townes, Hamlets and places, and the Counties wherof they were or be in which they were or be conuerſant: Otherwiſe all outlawries thereupon pronounced ſhall bee none. And before theſe …utlawries pronounced, the ſaid Writs and …nditements ſhall be abated by the excep…ion of the partie omitting the ſaid addi…ions.
6. H. 6. c…. 1. All Exigends and outlawries …pon enditements in the K. Bench of felony …nd treaſon ſhall bee void, if before the …xigend awarded, a Capias be not directed to …he Sherife of the Countie, whereof they be …amed in the enditement, hauing ſix weeks ſpace (or larger, by the diſcretion of the Iuſtices) before the returne.
8. H. 6. cap. 10. In eueryevery enditement or appeale of treaſon, felonie, or treſpaſſe after the firſt Capias returned; foorthwith (before an Exigend) another Capias ſhal be awarded to the Sherife of the Countie where the enditement is ſuppoſed to abide returnable, before the ſame Iuſtices, &c. conteining the ſpace of three monethes (where the Counties be holden from monethmonth to monethmonth) of foure moneths: (where they be holden from ſixe weekes to ſixe weekes) by which Capias the ſherife ſhall be commanded to take his bodie if it be found in his Bailiwick, if it be not found, then to make proclamation (for his apparance) in two Counties before the returne of the writ. Any exigend or outlawrie otherwiſe pronounced ſhall be holden for none.
10. H. 6. cap. 6. The like is to be obſerued when any ſuch enditement or appeal… ken before Iuſtices of peace, or other … uing power, ſhall bee remooued before t… King in his Bench, or elſewhere by C… rari or otherwiſe.
6. H. 8 cap. 4. VponUpon eueryevery exigent a writ… make three proclamations (returnable … of the returne of the exigent, and the p… clamations to bee made, two in the full Countie Court, the third at the genera… Seſſions) ſhall go out to the Sherife of euerie other Countie (viz. than that where th… action is brought) where the defendant i… named to be, or late to hauehave beene; if the Kings writ runne there: otherwiſe to the Countie next adioyning to that where he i… ſo named. Being named late of London … Middleſex, the writ of proclamation ſhall go out to euerie other Countie where he i… abiding, time of the exigent awarded. EueryEvery outlawrie to the contrarie ſhall be auoided by plea.
27. E. 3. cap. 2. A writ of Idemtpitate … nis giuen to thoſe whoſe lands, goods, or chattels be ſeiſed by any officer, ſurmiſing them to be outlawed (where they be not) becauſe they beare ſuch names as thoſe that be outlawed, for default of good declaration of the ſurname.
9. H. 6. cap. 4. Such an Idemtpitate … giuen to their Executors.
If the Exigent be returned not fully ſer…ed without any folly in the Plaintife, as (a)22 E. 3. 11.where the defendant after demand at …o Counties rendreth himſelfe in Court, …d vponupon mainpriſe found hath a Superſe…eas, and yet appeareth not at the day. But …therwiſe it is vponupon a (b)38 E. 3. 1.Superſedeas by a…other perſon bearing the ſame name, or in …ſe where no (c)14 E. 3. E…. 17more Counties but foure …n be holden betweene the deliuerie of the …rit to the Sherife and the returne, for it is …e Plaintifes owne follie in the firſt caſe to …ut no difference betweene their names, …d in the ſecond to take ſo ſhort a time. …hough it bee in the (d)17 E. 3. 43.huſtings of Lon…on which are holden vncertainly: the …laintife bringing a new exigent which we …ll an Exigent de nouo (e)22 E. 3. 11.before any other Countie holden, but elſe not, ſhall hauehave the …enefit of the former Counties. And there…ore it is called an exigent allocato Comitatu, …r allocato huſtingo, if it be in London, where …heir huſtings are as the Countie Courts.
Outlawry diſhableth him from ſuing a…y Lit. 43.action.
Statutes.
5. E. 3. cap. 12. In caſe where the Plain…ife hath recouered damages, & he againſt whō the damages be recouered, is outlawed …t the K. ſuit, no charter of pardon ſhall be granted, except the plaintife be ſatisfied for …is damages. When one is outlawed by proceſſe appearance no ſuch charter ſhall … ted, except he yeeld himſelfe before … ſtices from whom the exigend iſſued; … ſhall cauſe the partie to bee warned to … peare before them at a day. Where… the Plaintife appeare, they ſhall plead … the firſt originall, as if no outlawrie … beene. If the Plaintife appeare not (and … warning be duely witneſſed) he that … lawed ſhall bee deliuered by vertue of … Charter.
31. Eliz. cap. 3. VponUpon eueryevery extent in a … ſonall action a writ of proclamation … go out of the ſame Court to the S… the Countie, where the defendant at t… time of the Exigent ſhall bee dwelli… Whereupon three proclamations ſhall … made; one in open Countie Court, anot… at the quarter Seſſiōs, the third one m… at the leaſt before the Quint' exact at … doore of the Pariſh Church where the … fendant ſhall be dwelling at the time of t… exigent, vponupon a Sonday immediatly after … uine ſeruice. All outlawries otherwiſe ſh… be void.
But before reuerſing of any ſuch outlawrie in this reſpect, the defendant ſhall put i… baile, not onelyonly to anſwer the plaintife in … new action, but to ſatisfie the condemnation, if the Plaintife begin his ſuite within two Termes.
Prerogatiue.
By outlawrie all his chattels, whether …eall as a (a)9. H. 6. 20.terme for yeares (and there…re there the King may ſeiſe the land it …fe, and plow and ſow, and occupie it as …e term or might) wardſhip, &c. or per…nal, as ones (c)30. H. 6. 20.goods (the propertie wher… is preſently in the king, and he may hauehave … detinue againſt eueryevery man that hath a …oſſeſſion of them) profits (d)9. H. 6. 20.of land, …herein he hath a freehold or inheritance, …iz. rents, corne, mannurance of his paſture …et in this caſe he cannot, &c. ſeiſe the land …ſelfe, nor occupie, plow, or ſow it, or grant … away. And if the party ſo outlawed make … feoffement, this feoffement is good, and …he King after that ſhall hauehave the profits …o more.) But not (a)20. H. 7. 13.a fornace table fixed …pon the land with poſts, boords, doores, windowes, and ſuch like annexed to a free…old are forfeit to the King, not only thoſe in poſſeſſion, but euen ſuch as hee hath a right vntounto, as debts, (viz (b)50. aſſ pl. 1. 19. H. 6. 47.due by ſpecialty, but not (c)16. E. 4. 4. 50 aſſ pl. 1. 9. El. Dy. …62. 3. E. 3. Cor. 343. contr. Stāf. 188. b.by a ſimple contract, for the reaſon ſupra fol.) matters in (d)So aſſ. pl. 5. 28 E. 3. 92.account, (e)Stamf. 188. b.goods taken away, &c. But not damages which he is to recouer, as by reaſon of (f)28. E. 3. 92.treſpaſſe done to his land, (g)Stamf. 188. b.batterie, falſe impriſonment, or ſuch like.
In caſe of mayme there muſt bee three Capias, two in felonie, as ſtealth, robberie, and burglarie, one duely in the death of a man, bee it murder or manſlaughter, and high Treaſon.
Statutes.
25. E. 3. cap 14. The ſecond▪ Capias i… of felonie muſt be returned three w… ter. In caſe of Felonie and high … they that tarrie the Exigent, though t… 22. aſs. pl 81.they render themſelues, forfeit th… tels.
Mixt, is that which is ſo by his … as for want of goods hee may reſ… perſon. As firſt in all Praecipe quod f…, 22. H. 6. 38. 34. H. 6. 49.and other perſonall praecipes, and in per… nall Sifecerit te ſecurums, not being … the peace, and likewiſe in all Inſti… F. N. Br. 92. g. 2. H. 4. 25.vicontiell writs, the proceſſe is a S… mons by the defendants goods, an … ment or Pone per vadios and diſtreſſe … nite. Or if vponupon the Sommons a Ni…il … returned, that is to ſay, that the partie … 21. H. 6. 56.nothing whereby to bee ſommoned, th… continuall Capias.
Diſtreſſe infinite is a proceſſe to … him continually after, till he do appears … certaine of his goods, and profit of his lands, or as we vſe to ſay, iſſues: which … loſeth if he appeare not.
Statutes.
Weſtm̄ 2. cap. 37. No diſtreſſe ſhall bee but by Baylifes ſworne and knowne.
Weſtm. 2. cap. 39. The plaintife may a…erre that the Sherife might hauehave returned greater iſſues, and thereupon ſhall hauehave a …udiciall writ to the Iuſtice of aſſiſe to enquire of what & how great iſſues he might hauehave anſwered from the day of the purchaſe of the writ to the day of the returne, and the Sherife ſhall be charged of the ſurpluſage not returned.
1. E. 3 cap. 5. The like auerment of two ſmal iſſues returned giuen againſt the bailifes of franchiſes as well as the Sherife.
VponUpon this diſtreſſe muſt be returned in …ues the value of all his lands from the Teſte of the writ vntill the day of the returne. As if his land be worth xij. C. by the yeare, and a moneths ſpace betweene the 24. El. Fairfaxes caſe in the Cōmon place.Teſte and the returne a C. l. iſſues muſt be returned vponupon him.
And with theſe iſſues whether in this caſe or in any other caſe of a diſtreſſe infinite, as after a venire facias to returne Iurors, &c. the land is charge able into whoſe hand ſoeuer it come after. As if iſſues be returned D. Stud. per Br. iſſues 23.vponupon Tenant in taile, tenant for life, or a man ſeiſed in the right of his wife, the land ſhall be charged after their death: or 22. H. 6. 4.if an Abbot loſe his iſſues, and after bee tranſlated and made a Biſhop, the ſucceſſor during his life ſhall bee charged. And in this reſpect becauſe the land is charged, the beaſts of any ſtranger comming vponupon the ſame land may be diſtreined for the iſſues 5. H. 7. 1. Br. … 41.loſt.
In ſuch proces … theſe where … mēt or diſtreſſe ſhould go out, … dant be a … clark he … ned by his perſon, or … if … lay ſee elſe. as if the Sherife re… Cleric… bene fieat… non hab… … Proceſſe ſhall goe out to the … make him appeare by the …es of … nefice, which is called a ve…ire f… ricum.
A Capāas lyeth not here againſt … Br exigent. 72. It … error if he be outlawed. 26. H. 8. 7.of the Realme. But againſt a Knight … eth, for a man may be a Knight … freehold: So cannot an … common e…endement. … if … thing in the Countie where he is … partie ſhall hauehave an Elegit ſure … ſuch a Countie where he hath aſſets.
In a repleuin in the Countie … it by writ or plaint, if the go… ed F. N. B. 73. & 74.away, ſo as at the Tenants … cannot be reſtored, As if he that … driue them to a Fortlet or Caſtle, or … the Countie, &c. whereby the Sheri… turne vponupon the pluries that they are … ned, proceſſe of with e…am lyeth, … for the plaintife to hauehave of the others … till reſtitution of his owne.
Statutes.
Weſtm̄ 1. cap. 17. The Sherife or Baylife may take the power of his Countie … Bailiwick, and beat downe a Caſtle or … …here ſuch beaſts are encloſed, if hee that …oke them will not make deliuerance.
Secondly in Treſpaſſes vponupon the caſe …gainſt the peace, and in all other treſpaſ…es, whether it be a writ of deceit or Treſ…aſſe vi, or though it bee a Writ from the King himſelfe vponupon a contempt or breach …f the peace, as refuſing to come at the King, being ſent vntounto him with money to …ide him in his warre, and ſpoiling and wa…ting mens lands, goods, and chattels, and other vnlawfull acts doing, and ſo euerie contempt it is attachment: And if a Capias …n theſe caſes go ou… firſt, and the partie be …aken thereby, he ſhall be diſmiſſed, becauſe …t ſhould bee by pledges, diſtreſſe infinite, and vponupon a Nihil returned, a Capias, as before.
Here for contempts a Capias lyeth againſt Piers of the Realme, as for reſcouſing of one arreſted by the courſe of the Law, &c. And that is in reſpect of their diſturbance of the Law.
In actions of treſpaſſe with force, whether a common action or enditement of treſpaſſe, appeale of batterie, or ſuch like, after the attachment returned nihil, it is three Capias, viz. a capias alias and pluries, and then proceſſe of outlarie.
Statutes.
Weſtm̄ 2. cap. 11. Proceſſe of outlawrie giuen in an action of accompt.
25. E. 3. cap. 17. Such proceſſe ſhall … made in a writ of debt and detinue of c… tels, and taking of beaſts by writ of … and by proceſſe of Exigend by the S… as is now vſed in a writ of accompt.
7. H. 5. cap. 1. In writs to be purchaſed … gainſt thoſe that forge or make … Charters or minuments, and them … claime or cauſe to be read, like proceſſe ſ… be made by capias and exigend, as in w… of Treſpaſſe.
19. H. 7. c…. 9. Like proceſſe giuen in actions vponupon the caſe ſued in the Kings Bench, and Common place, as in actions of Treſpaſſe and debt.
23. H. 8 cap. 14. Like proceſſe giuen in eueryevery writ of annitie as in an action of debt