CHAP. return. return. The writ, when sealed, is to be forthwith brought: into the King's Bench, and there opened in the presence of ELIZAB. the judges, and delivered of record to the sheriff or his deputy. If the writ be not returned at the proper time, or there be any default or negligence in the execution of it, the sheriff is to be amerced at the discretion of the judges. The body of the party, if taken, is not to be brought into court, but the writ only to be returned, with a declaration of what has been done upon it. If a non inventus is returned, the following process is ordained. A capias is to issue, returnable at least two months after the teste, with a proclamation, to be made ten days at least before the return, either in the county court, sessions, or assize, for the party to appear in six days: if he does not yield himself, he is to forfeit 107. to the king; upon which another like capias and proclamation issues, and then a third, with the penalty of 201. for not appearing, and so on ad infinitum. This process always to be in the county where he commonly resides. The party, if taken in this manner, is to remain in prison without bail, as if taken upon the excommunicato capiendo, reserving to the bishop still to accept submission and satisfaction, and to absolve and release the offender, signifying the same, as formerly, to the Court of Chancery. However, all the provisions of this act are restrained to the following cases: where there is a sufficient and lawful addition in the writ of excomm. capiendo, according to the statute of additions; and where it appears in the significavit that it is upon some cause or contempt, in matter of heresy; refusing to have his child baptized, or to receive the communion, or to come to divine service, or errors in the religion or doctrine now received in the church of England; incontinency, usury, simony, perjury in the ecclesiastical court, or idolatry. It was endeavoured to prevent the vexation of suitors, by stat. 8 El. c. 2. It was common to arrest a person by latitat, alias or pluries capias, out of the King's Bench, and by like process out of the Marshalsea and other courts in XXXIII. cities and other places, and after that exhibit no declaration; CHA P. so that the defendant, after being put to charge and trouble, could have no costs awarded against the plaintiff for the ELIZAB. vexation: it was, therefore, now enacted, that where any one shall be arrested, or appear apon the return of any of the above process out of the King's Bench, and shall put in bail, if the person suing do not, within three days next after such bail taken, put in a declaration, or if after declaration he do not prosecute the same with effect, but shall apparently and wilfully suffer his suit to be delayed, discontinued, or shall be nonsuit, then the judges shall, at their discretion, award the person so vexed his costs, damages, and charges. The same was enacted, sect. 3., with regard to suits in the Marshalsea and other inferior courts. It is likewise provided, that where any one shall cause another to be arrested at the suit of a person who either did not exist, or did not agree to such proceeding, and shall thereof be convicted by indictment, presentment, or by the testimony of two sufficient witnesses, or more, or other due proof, he is to be imprisoned for every offence six months; and before he is discharged is to pay treble costs and damages to the party grieved, as well as 10l. to the party whose name he made use of. So that arresting persons merely from malice, without any cause of action, no longer enjoyed impunity. The statute 3 & 4 Ed. 6. c. 4. concerning the exemplification, or constat, of letters patent, was, in all its parts, extended by stat. 13 Eliz. c.6. to the letters patent of Henry the Eighth, Edward the Sixth, Queen Mary, King Philip and Queen Mary, Queen Elizabeth, her heirs and successors; so that it now became, so far, a general law. To avoid the great and chargeable delays often happening to tenants and defendants, it was enacted, by stat.. 14 El. c. 9., that in all cases where the plaintiff or demandant is entitled by any statute to pray a tales de circumstantibus, all tenants, actors, avowants, and defendants, may, upon their refusal, CHAP. demand it; and in qui tam actions the defendant shall be XXXIII. admitted to have a tales. Then follow the two statutes of ELIZAB. jeofail, stat. 18 El. c. 14. & 27 El. c. 5., which we shall speak of presently. The next is stat. 29 El. c. 4. For regulating the fees of sheriffs and bailiffs of franchises or liberties in cases of execution, the many proclamations directed by stat. 4 Hen. 7. c. 24. to be made on fines in the Common Pleas had so much increased of late years, that the stat. 31 El. c. 2. says, it would take up sixteen days in every term to make proclamations upon all the fines there levied ; when, on the other hand, the suits there had so much increased, that scarcely one day could be spared for proclaiming fines. That act, therefore, ordains, that fines shall be proclaimed only four times; once in the term wherein it is ingrossed, and once every of the three next terms. This brings us to stat. 31 El. c. 3., which was made for avoiding of secret outlawries in personal actions, where the defendant has a known place of dwelling, owing to the proclamations being made in the county-court or quartersessions at a distance from their abode, and therefore giving them no convenient notice of suits against them; for remedy whereof, it is enacted by that statute, that in every personal action wherein an exigent is awarded, there shall issue one writ of proclamation having the same teste and return with the exigent, directed to the sheriff of the county where the defendant is then dwelling. Upon which there are to be three proclamations made; county-court, one at the quarter-sessions, a third to be made one month at least before the quinto exactus, at or near the most usual door of the church of the place where the defendant dwelt at the time the exigent was awarded, upon a Sunday, immediately after divine service; and all outlawries not pronounced according to this statute are made void. As to real actions, it is ordained, that on every summons upon the land, at least fourteen days before the return thereof, proclamations of the summons are to be made on a Sunday in the above manner; and such pro one in the moners. XXXIII. clamations to be returned with the names of the sum- CHA P. And if this act is not complied with, there is to be no grand cape, but alias and pluries summons until pro- ELIZAB. clamations are duly returned. And before the allowance of a writ of error, or reversing an outlawry by plea or otherwise, for want of proclamations as directed by this act, the defendant shall put in bail not only to appear and answer, in a new action to be commenced, but also to satisfy the condemnation, if the plaintiff begins his suit before the end of two terms after allowing the writ of error, or otherwise avoiding the outlawry, sect. 3. The same provision which had been made by stat. 1 Ed. 6. c. 10. for Wales and Chester, and by stat. 5 & 6 Ed. 6. c. 26. for the county palatine of Lancaster, was now made by stat. 31 El. c. 9. respecting the county palatine of Durham, as to awarding writs of exigent and proclamation. They are to be directed to the bishop of Durham, and during a vacancy to the chancellor of the bishopric or county palatine; who, by mandate, is to direct the sheriff to execute them. Two very material statutes were made respecting actions Actions upon penal statutes. The first is stat. 18 El. c. 5. To upon penal redress disorders in common informers." It is thereby enacted, that no one shall sue another upon a penal statute but by way of information or original action. Upon every information, a special note is to be made of the day, month, and year of exhibiting it in the office; nor is any process to be sued out till the information is exhibited in form; and upon the process is to be indorsed the plaintiff's name, and the statute upon which it is grounded. Any clerk making out process contrary to these directions is to forfeit 40s., half to the queen and half to the party against whom the process is issued, sect. 1. No informer shall compound with a defendant but after answer made in court; nor then but by order or consent of the court. And if an informer delay his suit, or discontinue, or be nonsuit, or have a verdict or judgment against him, he shall pay costs, charges, and damages, to be recovered by capias, fieri fa., statutes. XXXIII. CHAP. or elegit, sect. 3. And if any (except the clerks for making out process) offend in suing out process, making of comELIZAB. position, or other misdemesnor, contrary to this act; or shall, by colour or pretence of process, or of any offence against a penal statute, make any composition, or take money, reward, or promise of reward, he is to stand in the pillory for two hours, be disabled to sue upon any popular or penal statute, and for every offence forfeit 107. The limitations of this statute are not to restrain informations for maintenance, champerty, buying of titles, or embracery; or where a penalty is specially limited to any particular person; nor is this statute to extend to such officers of record as by their office may exhibit informations, sect. 5, 6, 7. Other restrictions were imposed on informers by stat. 31 El. c. 5., which enacts, that in an information the offence shall not be laid in any other county than where it was in truth committed; and a defendant may plead that the offence was not in the county where it was alleged, and if found for him, the plaintiff shall be barred of his action, sect. 2. There is the like exception of officers of records, informations for champerty, buying of titles, or extortion; actions upon two particular acts made for collecting the customs (1 El. c.11. and 20.); and, in general, all informations for concealing or defrauding the customs, tonnage, poundage, subsidy, impost, or prisage; for corrupt usury, engrossing, or for regrating or forestalling, where the penalty is of the value of 20%. or above. All actions, indictments, or informations for a forfeiture, when limited to the king, are to be brought within two years; when to the king, and any other who shall sue, within one year; and, in default of such suit, the king may sue within two years after that year ended. It then repeals stat. 7 Hen. 8. c. 3. concerning the time of bringing actions upon penal statutes, and confirms all others in force upon the subject of reforming disorders of common informers, sect. 1.7. And it further directs, that all suits |
