Statutes of the Realm: Volume 5, 1628-80. Originally published by Great Britain Record Commission, s.l, 1819.
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Recital that by the Law of the Land, in case of Arrest, the Cause of Action ought to be set forth in Process;
and that of late divers, Arrests have been on general Writs of Trespass, &c. in which no Cause of Action expressed; and that such Arrests have been procured by malicious Persons, &c.; No Person arrested compellable to give greater Bond of Appearance than £40; The true Cause of Action to be set forth in the Process.; 23 H.VI, c.9. §3.; Sheriff enjoined to accept of such Bond.; 23 H. VI. c. 9. § 3.
WHEREAS by the Ancient and Fundamentall Lawes of this Realme in case where any person is sued impleaded or arrested by any Writ Bill or Processe issuing out of [any of (fn. 1) ] His Majesties Courts of Records att Westminster in any Common Plea att the Suit of any common person the true cause of Action ought to be sett forth and particularly expressed in such Writ Bill or Process whereby the Defendant may have certaine knowledge of the cause of the Suit and the Officer who shall execute such Writ Bill or Processe may know how to take Security for the Apparance of the Defendant to the same and the Sureties for such Apparances may rightly understand for what cause they become engaged And whereas there is a great complaint of the people of this Realme that for diverse yeares now last past very many of His Majesties good Subjects have beene arrested upon generall Writs of trespass quare clausū fregit Bills of Middlesex Latitat's and other like Writts issued out of the Courts of King Bench and Common Pleas not expressing any particular or certain cause of Action and thereupon kept prisoners for a long time for want of Bayle Bonds with Sureties for Apparances having beene demaunded in so great sums that few or none have dared to be Security for the Apparances of such persons soe arrested and imprisoned although in truth there hath beene little or no cause of Action and often times there are no such persons who were named Plaintiffs but those Arrests have beene many times procured by malitious persons to vex and oppress the Defendants or to force from them unreasonable and unjust compositions for obtaining theire Liberty And by such evill practices many men have beene and are daily undone and destroyed in theire Estates without possibility of having reparation the Actors imployed in such practises having beene for the most part poore and lurking persons and theire actings so secret that it hath beene found very difficult to make true discoveries or proofe thereof For remedy and prevention of which so great growing evills and mischeifs and alsoe for discouraging all frivolous and unjust Suits and causeless Arrests for the future Bee it Enacted by the Kings most Excellent Majesty by and with the advice and consent of the Lords Spirituall and Temporall and Commons in this present Parliament assembled and by Authority of the same That from and after the Twelfth day of February in the yeare of our Lord One thousand six hundred sixty and one no person or persons who shall happen to be arrested by any Sheriff Under-Sheriff Coroner Steward or Bailiff of any Franchise or Liberty or by any other Officer Minister Under-bailiff or other person or persons whatsoever within this Realm having or pretending to have Authority or Warrant in that behalfe by force or colour of any Writt Bill or Processe issuing or to be issuing out of His Majesties said Courts of Kings Bench and Common Pleas or either of them in which said Writt Bill or Processe the certainty and true cause of Action is not expressed particularly and for which the Defendant or Defendants in such Writt Bill or Process named is and are bailable by the Statute in that behalf made in the Three and twentieth yeare of the Reigne of the late King Henry the Sixth shall be forced or compelled to give Security or to enter into Bond with Sureties for the Apparances of such person or persons soe arrested att the day and place in the said Writt Bill or Process specified or contained in any penalty or sum or sums of money exceeding the sum of Forty pounds of lawfull money of England to be conditioned for such Apparances And that all Sheriffs and other Officers and Ministers aforesaid shall lett to Bail and deliver out of Prison and from theire and everie of theire Custodies respectively all and every person and persons whatsoever by them or any of them arrested upon any such Writ Bill or Processe wherein the certaintie and true cause of Action is not particularly expressed upon Security in the su[m]m of Forty pounds and noe more given for Apparance of such person or persons so arrested unto the said Sheriff or Officer aforesaid according to the said Statute in the said three and twentieth yeare of the Reigne of the said late King Henry the Sixth in that behalfe made and provided.
II. Upon Appearance in Court, such Bonds and all Amercements discharged.
Plaintiff not declaring.; Nonsuit and Costs.; 23 H. VIII. c. 15.
And be it further Enacted by the Authoritie aforesaid that upon Apparance to be entred in the Terme wherein such Writt Bill or Processe is retornable with the respective Officer in that behalfe for the said person or persons by Attorney or Attorneys in the said respective Courts from whence the said Writ Bill or Processe issued unto such Writ Bill or Processe the Bond or Bonds soe given for Apparance thereunto be and are hereby satisfied and discharged And that after such Apparance so entred no Amerciaments be set or estreted upon or against any Sheriff or other Officer aforesaid or any other person whatsoever concerning the want of such Apparance and unlesse the Plaintiff or Plaintiffs in any such Writ Bill or Processe named shall put into the Court from whence such Writ Bill or Process did issue his or theire Bill or Declarac[i]on against the person or persons soe arrested in some p[er]sonall Action or Ejectione firme of Lands or Tenements before the end of the Term next following after Apparance that then a Non-suite for want of a Declarac[i]on may be entred against the said Plaintiff or Plaintiffs in the said Courts respectively And that every Defendant in every such Writ Bill or Process named shall or may have Judgement to recover Costs against every such Plaintiffe or Plaintiffs to bee assessed taxed and levied in such manner and according as it is provided by the Statute for Costs made in the three and twentieth yeare of the Reigne of the late King Henry the Eighth Any former or other Act Statute Ordinance Law Custome Order Course or Usage of either of the said Courts to the contrary thereof heretofore had made admitted or used in any wise notwithstanding.
III. Proviso for Capias utlagatum and other Process.
Provided alwaies that this Act nor any Clause or thing herein before specified or conteined shall not extend nor be construed or taken to extend unto any Arrests hereafter to be made upon or by vertue of any Writ of Capias ut lagatum Attachment upon Rescous or Attachment upon any Contempt or of any Attachment of Priviledge at the Suite of any priviledged person or of any other Attachment for contempt whatsoever issuing or to be issuing out of either of the said Courts although there be no particular certainty of the cause of Action expressed or conteined in the said Writs But that neverthelesse no Sheriffe nor Under Sheriff nor any of the Officers or Ministers aforesaid shall discharge any person or persons taken upon any Writ of Capias ut lagatum out of Custody without a lawfull Supersedeas first had and received for the same and that upon the said Writs of Attachment such lawfull course be taken for Security for Apparance therein as hath beene heretofore used Any thing herein before expressed to the contrary thereof in any wise notwithstanding.
IV. Recital that Prisoners in the Fleet continue there to delay their Creditors.
How such Persons may be sued to Judgment in the Common Pleas.; Judgment by Nihil dicit.; Good cause of Detention to Warden.; Warden offending,; Penalty.
And whereas many persons out of ill intent to delay theire Creditors from recovering theire just Debts continue Prisoners in the Fleet whoe cannot bee proceeded against in such manner as they might bee if they were att large Nowe for the better enabling all persons to recover theire just Debts and Demaunds against such Prisoners Be. it further Enacted by the Authority aforesaid That every person or persons whatsoever who now hath or have or which att any time hereafter shall have cause of any personall Action against any person being a Prisoner in the Prison of the Fleet may sue forth an Originall Writt upon his or theire cause of Action And that a Writ of Habeas Corpus bee granted to every such person or persons being Plaintiff or Plaintiffs desireing the same to be directed to the Warden of the same Prison to have the Body of such Prisoner before the Justices of the Common Pleas att some certaine day in any Term to answere the said Plaintiff or Plaintiffs upon his or theire said cause of Action And [that (fn. 2) ] if the said Plaintiff or Plaintiffs att the said day put into the said Court his or theire Declarac[i]on according to the said Originall Writt against the said Prisoner being present att the Barr the said Prisoner shall be bound to appeare in person or to put in an Attorney to appeare for him in the said Action And unlesse the said Defendant plead upon a Rule given to be out at Eight dayes at the least after such Apparance Judgement by Nihil dicit may be entred against such Defendant as appearing in Person which shall be good & effectuall in Law And such charge in Court by Declarac[i]ons signified by Rule unto the said Warden shall be a good cause of detention of such prisoner in his Custody from which he shall not be discharged without a lawfull Supersedeas or Rule of Court And if the said Warden shall do otherwise he shall bee responsible to the Court and to the party greived for Damages by Action upon the Case to bee brought against him for discharging such prisoner.
V. Certain Judicial Writs good, though there be not Fifteen Days between the Test and Return.
And whereas very many Suits commenced by Originall Writts have beene protracted and long delayed from Judgment and Execuc[i]on by reason of the necessity of haveing Fifteene dayes att the least betweene the dayes of the Teste and the dayes of Return of Writs now used in personall Actions and alsoe in Actions of Ejectione firme for Lands and Tenements For remedy thereof and for the more easie expediteing Trialls and the better and more speedie executeing of Judgements for the time to come Bee it further Enacted by the Authority aforesaid That in all Actions of Debt and all other personall Actions whatsoever and alsoe in all Actions of Ejectione firme for Lands or Tenements nowe depending or which att any time hereafter shall bee depending by Originall Writ in either of his Majesties Courts aforesaid after any issue therein joyned to be tried by a Jury and alsoe after any Judgement had or obtained or to be had or obtained in either of the Courts aforesaid in any such Action as aforesaid. there shall not need to bee fifteene dayes betweene the Teste day and day of Returne of any Writ or Writs of Venire facias Habeas Corpora Jurato[rum] or Distringas Juratores Writs of Fieri facias or Writs of Capias ad satisfaciendum And that the want of Fifteene dayes betweene the Teste day and the day of Retorn of any such Writ shall not bee nor shall be assigned taken or adjudged to be any matter or cause of Error Any Law Custome Statute Course or Usage to the contrary thereof in any wise notwithstanding
VI. Proviso for certain Process to Outlawry and against Bail.
Provided neverthelesse that this Act nor any thing therein conteined shall not extend or be construed to extend to any Writ of Capias ad satisfaciendum whereon a Writ of Exigent after Judgement is to be awarded nor to Capias ad satisfaciendum against the Defendant in order to make any Baile liable But that the same continue and be as if this Act had never beene made.
VII. 3. Jac. I. c.8. recited.
In Actions of Debt for Tithes, Trover, Covenant, Detinue, and Trespass, no Execution staid by Writ of Error, unless Bail, &c. 2 (2&3) E.VI. c. 13.
And whereas by an Act of Parliament made in the third yeare of the Reigne of our late Soveraigne Lord King James of blessed memory a very good Law was made for avoiding unnecessary delaies of Execution whereby it is Enacted That no Execution shall be stayed or delayed upon or by any Writ of Error or Supersedeas thereupon to be sued for the reversing of any Judgement to be given in any Action or Bill of Debt upon any single Bond for Debt or upon any Obligac[i]on with Condic[i]on for payment of money onely or upon any Action or Bill of Debt for Rent or upon any Contract sued in any of His [Hignes (fn. 3) ] Courts of [Records (fn. 4) ] att Westminster or in the Counties Palatine of Chester Lancaster or Durham or in His Highnesse Courts of Great Sessions in any of the Twelve Shires of Wales unless such person or persons in whose name or names such Writt of Error shall be brought with twoe sufficient Sureties such as the Court wherein such Judgement is or shall be given shall allow of shall first before such stay made or Supersedeas to be awarded be bound to the party for whom any such Judgement was or should bee given by Recognizance to be acknowledged in the same Court in double the Sum adjudged to be recovered by the said former Judgement to prosecute the said Writt of Error with effect and alsoe to satisfie and pay (if the said Judgement shall be affirmed) all and singuler the Debts Damages and Costs adjudged or to be adjudged upon the former Judgement And all Costs and Damages to be alsoe awarded for the same delaying of Execution which Law hath beene found by experience to bee very good and beneficiall to the Commonwealth And forasmuch as divers other Cases within the same mischeife by delayes and staying of Execuc[i]on by Writs of Error and Supersedeas thereupon are not provided for by the said Statute For further Remedy against delayes and staying of Executions in the severall Actions hereafter specified. Be it further Enacted and Ordeined by the Authority aforesaid That from and after the twentieth day of January in the yeare of our Lord One thousand six hundred sixty and one no Execution shall be stayed in any of the Courts aforesaid by any Writ or Writs of Error or Supersedeas thereupon after any Verdict and Judgement thereupon obteined in any Action of Debt grounded upon the Statute made in the second yeare of the Reigne of the late King Edward the Sixth for not setting forth of Tythes nor in any Action upon the case upon any promise for payment of money Actions sur Trover Actions of Covenant Detinue and Trespasse unlesse such Recognizance and in such manner as by the said recited former Act is directed shall be first acknowledged in the said Court where such Judgement is given.
VIII. If Judgment affirmed on Writ of Error.
And be it alsoe Enacted by the Authority aforesaid That if any person or persons after the said day shall sue or prosecute any Writ or Writs of Error for reversall of any Judgement whatsoever given after any Verdict in any of the Courts aforesaid and the said Judgement shall afterwards be affirmed then every such person or persons shall pay unto the Defendant or Defendants in the said Writ or Writs of Error his or theire double Costs to bee assessed by the Court where such Writ of Error shall be depending for the delaying of Execution
IX. Proviso for Action Popular, Indictment, &c.
Provided nevertheles That this Act nor any thing therein conteyned shall not extend to any Action Popular nor unto any other Action which is or hereafter shall bee brought upon any penall Law or Statute (except Debt for not setting out Tythes as aforesaid) nor to any Indictment Presentment Inquisic[i]on Informac[i]on or Appeal Any thing herein before expressed to the contrary thereof notwithstanding.