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William Tidd.

The practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) online

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Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 16 of 90)
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on liis or their behalf''.

For the reformation and punishment of abuses in general, there is
an old rule of court"^, which has however fallen into disuse, that a
jury of able and credible officers, clerks and attornies, shall be im-
panelled once in three years, and sworn to inquire; 1. Of the points
usually iiiquirablc hy the writ, viz. falsities, contempts, misprisions,
and offences : 2. Of such who have been admitted attornies 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 thera, under what-
soever 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 Fleet prisons : And that some
persons be enjoined and sworn to give evidence, viz. some clerks of
the court, and some attornies in every county, not excluding
others.

When an attorney is charged by affidavit, with any fraud or mal-
practice in his j)rofession, contrary to the obvious rules of justice and
common honesty, the court, on motion, will order him to answer the
matters of the affidavit; and in general, if he positively deny the
malpractices imputed to him, they will dismiss the complaint ; but
otherwise they will grant an attachment^ And where an attorney,
required to answer (he matters of an affidavit, swore in his excul-

* 3 Durnf. & East, 275. and sec 2 Blac. R. M. 6 & 7 Eliz. R. M. 15 Eliz. R. H. U

Rep. 912. 5 Taunt. 206. 6 Taunt, 105. J<ic. l.rcg. 2. R. M. 17 Jac. I. C. P. See

'• 4 Barn. & Aid. 47. and see 2 Chit. Rep. also stat. 3 Geo. IV. c. 69. to enable the

68.1 Ring. 91. judges of the several coiiits of record at

<^ R. M. 1654. § 3. K. B. & C. P. and sec VVedminsler, to make regulations rcs|)rctin5

R. E. 9 Eliz. C. P. which contains the writ the fees of the officers, clerks and ministers

to summon the jury, and lord chief justice of thesaid court.s.

DyeWs charge thereon. e j c^it. Rep. 186. and see Hac. Abr. tit.

•* As to the fees of attornies and officers of AUotneij, II, Append. Chap. III. § 14.
the conrt, see R. T. Z5 H. VI. § 5, 6, 7, 8.

G 2



84 OP THE MISBEHAVIOUR

pation to an incredible story, the court of King's Bench granted an
attachment against him, though he positively denied the malpractices
uith which he was charged^ But the court will not call upon an
attorney summarily, to answer the matters of an affidavit, charging
him with an indictable offence ; but will leave the parlies complaining
to prosecute for the same''. It has been doubted, whether the affirma-
tion of a Quaker is admissible, to call upon an attorney of this court,
to answer the matters of an affidavit"" : and the true distinction,
to be collected from all the cases upon the subject, seems to
be this ; that if the object of the suit or proceeding be to recover
a debt, or to give to a party any legal civil right, the affirmation
of a Quaker is admissible ; and actions on penal statutes are
to be considered as actions for debts ; but that where the object
is not to give to the party any legal civil right, but to punish a person
who has done something wrong, the affirmation of a Quaker is not
admissible''.

In the Common Pleas, if an attorney do any thing wrong, quatenus
an attorney, in an inferior court, the court will oblige him to answer
the complaint^ : And in general, when it appears that an attorney has
been fraudulently admitted*^, or convicted (after his admission,) of
felony^, or other offence which renders him unfit to be continued an
attorney'*, or of knowingly suffering his name to be made use of
by an unqualified person', or has acted as agent for such person', or
otherwise grossly misbehaved hismelf", the court will order him to be
struck off the roll : If an attorney practise, after he has been con-
victed of forgery, perjury, subornation of perjury, or common barratry,
he is liable to be transported'. And where an attorney had been
struck off the roll of the court of King's Bench, on the report of the
master, for misconduct, the court of Common Pleas on motion, sup-
ported by an affidavit of the master's report, struck him off the roll
of the latter court". But in a subsequent case, the rule for striking
him off the roll was refused, the contents of the affidavits on which
the court of King's Bench acted, not having been stated, and there
being no proof or allegation, that the attorney had been struck off for
a misdemeanor^ And striking an attorney off the roll is not always

a 6 Durnf. &, East, 701. jn notis.

•> 1 Bing. 102. i Ante, 69.

' 1 Dowl. &, Ryl. 121. k Poller's caso, H. 26 Geo. III. K. B.

«• Id. 124. per B.njey, J. Priddleh Case, E. 27 Geo. III. K. B.

e 2 Wils. 382. I Stat. 12 Geo. 1. c. 29. § 4.

f SBlac. Rep. 991. AiUe, 62. m i Biod. & Biag.322.4Moore, 319. S. C.

e Cowp, 829. " 3 Bi-od. &. Bing. 257.

h 6 East. 143, and sec 1 Chit. Kep. 557.



OF ATTORMES, ScC. 85

mndcrstood to be a j)or|)otuaI disability ; for the court have in some
instances permitted bim to be restored, consiilcrini^ the i)unisbment in
tbe Ii«^bt of a suspension onIy\ In proceedinj^ against an untpialified
person, for practising in the name of an attorney, contrary to tbe pro-
visions of the statute 22 Geo. II. c. 1(5. § 11. tbe party is not en-
titled to have tbe witnesses in support of tbe charge cxaminetl viva
voce ; but after the matter had been referred, by consent of counsel,
to the master of the crown olUce, who reported the party in contempt,
tbe court allowed him to bring the whole of the case under their own
consideration, when brought up to be committed''.

An attorney may also be struck off tbe roll at bis own instance, as
for the purpose of being called to tbe bar, &c. ; and if be be after-
wards desirous of being restored, he must, if called to tbe bar, first
apj)Iy to the inn of court Avhere be was called, to be disbarred*" : But
an attorney cannot be struck off the roll at his own instance, though
hollas never practised, without an affidavit that no proceedings are
jjcnding against bim for misconduct'. The mode of re-admitting an
attorney, who has been struck otV the roll at bis own instance, is
])rctty much tbe same with that of re-admitting him, when he has not
taken out his certificate, which has been already treated of". In
general, he must satisfy the court that ho ought to be restored* ; and,
on one occasion", they required the like notice to be stuck up, and
entered at the judges' chambers, as upon an original admission. The
court will also make him consent to take no advantage of his privi-
lege, in any action then depending''. But the statute 37 Geo. III.
c. 90. § 31. being confined to attornies who have neglected to take
out (heir certificates, does not apply to those who have been struck
off the roll at their own instance; and of course, tbe latter may bo
re- admitted, without paying any fine or arrears of duty".

• I Blac. Rcp.aG^. The likn was done * Ft parte S.imbrid^e, T. 15 Geo. HI.
J)y Ihu court, in Trin. 37 Geo. III. K. B. K. B. and see I Chit. Rep. (")9'2.

•> 2 Dowl. & Ryl. 64. I Ex parte Vaiighan, E. 43 Geo. III. K. B,

« Dong. 1 14. Ante, 74.

■■ 1 Chit. Rrp. 357. in votis, and sec «/. ^ Done:. 114. Barnes, 4'2.

692. 6 Ves. 11. 8 Vcs. 33. ' 2 Barn, fit Aid. 316. («.)

• Auie, 74, 5.



[ ft« ]



CHAP. IV.



Of the Means q/*coMxMENCiNG personal Actions, in the
King's Bench, Common Pleas, «wd Exchequer;
and the Prosecution and Defence of them in Per-
son, or hy Attorney; and o/* Paupers, and In-
fants.

^T^HE means of commencing" personal actions, in the court of King's
Bench, conformable to its jurisdiction, are —

I. By Original Writ;

1. Against common Persons.

2. Against Peers of the Realm, and Members of the

House of Commons.

3. Against Corporations, and Hundredors.
II. By Bill of Middlesex, or liATiXAT.

III. By Attachment of Privilege, at the suit of Attornies, and

Officers of the Court.

IV. By Bill;

1. Against 3Iemhers of the House of Commons.

2. Against Attornies, and Officers of the Court.

3. Against Prisoners, in custody of the Marshal, or She-
riff, &c.

In the Common Pleas, the means of commencing personal actions,
are first, by original writ, issuing out of Chancery ; which is either
a special original, adapted to the nature of the action, or a common
original, in trespass quare clausumf regit : The former, though it
may be had in any case, is only necessary in the first instance against
peers, corporations, and hundredors ; the latter, not requiring per-
sonal service, is sometimes used, when the defendant keeps out of
the way, so that he cannot be arrested, or personally served with
process : Secondly, by capias quare clausum f regit , founded on a
supposed original, which is the common mode of commencing actions
in this court, and answers to the bill of 3Iiddlesex or latitat in the
King's Bench : Thirdly, by attachment of primlege, at the suit of



or THE MKANS OF COMMENCING, &C. 87

nltomies and officers of the court : Fourthly, by bill, which is two-
fold ; first, against attoruies and officers; and secondly, ai^ainst
members of the house of commons^. It has been said, that if a man
be in the Fleet, a plaintill'may have a bill of debt aj^ainst hiui, in the
same nnanner as, in the King's Bench, against a man in custody of
the marshal'' ; though 7^«7r/K'rfcer/ adds, that it was not usual. In
practice, actions against prisoners in custody of the warden of the
Fleet, are commenced in the same manner as those against other
persons, by original writ.

In the Exchequer, the means of commencing personal actions are
first, hy venire facias ad respondendum'^, which is in nature of an
original writ ; and was the process used at common law, against
persons having privilege of parliament' : Secondly, by subpa'nu ad
respondendum', which is a process directed to the defendant,
analogous to the subpoena in Chancery, or on the equity side of the
Exchequer: Thirdly, hy quo minus capias^, which answers to the
bill of Middlesex ov latitat in the King's Bench, and capias quare
clausum f regit in the Common Picas : Fourthly, by venire facias^
or capias of privilege^, at the suit of attornies and officers of the
court: And lastly, hy bill, wliich is three-fold ; first, against a/for-
nies a\\i\ officers' ; secondly, against members of the house of cora-
monsS on the statute 12 & 13 W. III. c. 3.; and thirdly, against
prisoners', in custody of the sheriff', &,c. or warden of the Fleet. In
an inferior court, it is no ground of error, upon a judgment after
verdict, that the plaint was levied before the cause of action ac-
crued'".

In the prosecution and defence of personal actions, the parties must
appear in person, or by attorney ; or, in case of infancy, hy prochein
amy, or guardian.

At common law, the plaintiff and defendant must, in general, have
appeared in person , and could not have appeared by attorney,
without the king's special warrant, by writ or letters patent". But
a corporation aggregate, not being capable of a personal appearance,
could only have appeared by a^for/iei/, appointed under their common

» - Ld. Raym. lAil. perStrart'^e, arg. and inventus, and award of alias, see id. § 1 12.

see the case of Daukins v. Buiridge, id. ibid, S Append. Chap. XIV. § 14.

2 Sir. 734, S. C. '• Id § 1.5.

>> Fitz. Abr. tit. mil, 18. 3 H. 6. 26. and ' Id. § 27, 8.

see 3 Bos. & Pul. 12. (o). k Post, Chap. VI. and see >Tan. Ex. I'r.

<: Append. Chap. VIII. § 76, &c. Chap. V.

"> Man. Ex. Pr. 32. ' Append. Chap. XV. § 23, 4.

« Append. Chap. VIII. § 93, &,c. "" 3 T.arn. & Aid. 605. but see Doug. C\.

'Id. § 110, 11, And.fovtheentry ofa</i(& " Co. Lit. 123. .•». 2 Inst. 249. 373. V. N.

minus, witli tlie shttriff's return of "t": <•<? I!. 25. I Mod. 214. 2 Mod. S3. S. (,'.



88 or TILE rUOSECUTlON, Sec. IN PERSON,

seal'. And now, by the statute of IVestm. 2. ( 13 Edw. I.) c. 10,
a general liberty is given to the parties, of appearing by attorney''.
Yet tliei-e are certain persons, such as feme coverts", and ideots'^,
who, for want of legal discretion, are incapable of appointing an at-
torney ; and must therefore appear in person : And any one else, if
he think proper, may still appear and prosecute or defend his suit,
in the same manner^ ; which is usually done by attornies and pri-
soners. A plaintiff may sue, in the Common Pleas, upon a penal
statute, in his own name, without an attorney ; and putting
*' plaintiff's attorney''^ after his name, in the noti(;e on the process,
is no irregularity, being only in compliance with the 5 Geo. II. c. '27.

Attornies were anciently appointed in court, when actually ])resent8 :
but they are now usually appointed out of court, by warrant of at-
torney'' ; which should regularly be in writing ; but an authority by
«aroZ is said to be sufficient to support a judgment'; and even if
an attorney appear without warrant, it is a good appearance as to
tlie court, though he is liable to an action''. So, after an order of
nisi prius had been made to refer a cause to arbitration, with the
consent of the defendant's counsel and attorney, the court of Com-
mon Pleas would not set it aside, on an affidavit by the defendant, ex-r
pressly denying his authority to refer'. And where an authority was
gjven to an attorney, to protect the defendant from arrests, and before
it was countermanded, the attorney gave an undertaking to j)ut in
bail for the defendant, the court would not set aside the proceedings,
on behalf of the latter, although he disclaimed the authority of the at-
tornev'". It seems however, that when an action is brought by an

» Bio. Abr. tit. Corporation, '28. Co. Lit, that being an ideot, she had previously ap-

66. b. Com. Dig. tit. Pleader, 9. B. 2. but see peared and defended the action by attorney :

ilv? Mayor of T/ieiforcrs case, 1 Salk. 19'2, And note, in Co. Lit. 135. b. it is said, that

wherein it was laid down by Holt, Ch. J. the suit by ideols, &c. must be in their

that though a corporation cannot do an name, but shall be followed by others. Lu-

act in pais, without their common seal, yet natks, it is said, if under age, must appear

they may do ?in act upon record; and that by guardian ; if of full age, by attorney. 4

is the case oftiie city of Ijondon, every year, Co. 124. b. and see Bac. Abr. tit. Ideols and

who make an attorney by warrant of at- Lunatics, G. 2 S.uind. 333. (4.)

torney in the King's Bench, without either ^ Say. Rep. IH.

sealing or signing : the reason is, because ^ 2 H. Biac. 600.

-they are estopped by the record, to say it is g 1 Wils. 39.

not their act. And see Man. Ex. Pr. 3. /' Append, Chap. IV. § 1, 2.

b Gilb. C. P. 32, 3. 2 Inst. 376. F, N. B. * 2 Keb. 199. 1 Lil. P. R. 134. 137.

25. Ante, 54. t 1 Keb. 89.

c 3 Taunt. 261. ^3 Taunt, 486. and see I Salk. 86. 1

d Co. Lit. 135. b. 2 Inst. 390. F. N. E. 27. Chit. Rep. 142.

but see 2 Saund. 335. where an irfeof ap- >" I Chit. Rep. 193.
puarcd by hetfnend, anJ assigned for error,



OR BY ATTORNEY. 89

iiKorncy, without proper authority, the court will set aside the pro-
ceedings; for otherwise the defendant might be twice charged". And
where an attorney appears without warrant, the court will set aside a
judgment entered against the defendant, if the attorney he not res-
j)onsible ; for otherwise the defendant could have no remedy against
him*'.

When an attorney once appears, or undertakes to he attorney
for another, he shall not be permitted to withdraw himself'; and it is
said to be his duty to j)roceed in the suit, although his client neglect
to bring him money : and therefore if, on tiiat account, he neglect to
proceed, according to tho practice of the court, whereby judgment of
nonprus is signed against the plaintifT, the court will make a rule
uj)on the attorney to pay the costs of such judgment, together with
the costs of the application'. It is even said to have been determined,
in the Common Pleas, that an attorney having quitted his client
before trial, could not bring an action ior his bill''. So, in Chancery,
it has been holden, that a solicitor proceeding to a certain length in a
cause, shall not leave it there, but shall go on*^: And, in that court,
a sfdicilor having declined to act for his client, has no lien for his
costs upon a fund in court''.

The warrant of attorney continues in force until the judgment, and
for a year and a day afterwards, in order to have execution, &C.''
unless it be sooner countermanded by the act of the principal, or
determined by the death of the attorney. But a warrant of attorney
lor the plaintiff, in the action against the principal, cannot extend to a
scire facias against the bail', or to revive the judgment'', but there
iuust be a new warrant of attorney ; because this is a new cause, and
dilTerent record. And, as a scire facias is a new action, it may be
sued out by a new attorney, without leave of the court for changing
the attorney, or giving notice that the old attorney is changed'. So
the defendant in the original action need not obtain a judge's order
to clnnge his former attorney, upon bringing a writ of error'". And
theplaintiir, in the Common Pleas, may sue out execution by a different
attorney from the attorney in the cause, without obtaining an order of
court for changing the attorney".

,» 1 Diinif. &, East, (.2. 1 Chit. Rep. 194. '• 2 Inst. 378. Gilb. Exec. 92, 3. Run.

*> 1 Salk. 88. 6 Mod. 16. S. C. Eject. 428. 2 Bos. & Pni. 367. (b).

« 1 Sid. 31. i 1 Salk. 89. 2 Salk. 603, 2 Ld. Rayin.
d Say. Rep. 173. I)ut see Man. Ex. Pr. 1252, 3. S. C

585, 6. k Cro. Eliz. 177. 2 L.i. Raym. 1048.

« ;4 V.s. 272, 3. » S.-»y. Rep. 218.

• /</. 196. m 7 Durnf. & East, 337.

« /'/. '271. n J Uob. & Pul. 3J7.



90 OP THE niOSECUTlON, &C.

When an adorney, having been retained to defend a cause, has
undertaken to appear, the defendant is not allowed to countermand
the appearancf, after his retainer'. But, after appearance, he may
change his attorney by rule oi' court, or order of a judge, on pay-
ment of what is due to him''. For this purpose, a summons should
be taken out, and judge's order obtained thereon''; a copy of which
order should be served on the opposite attorney : and it is not neces-
sary, on changing an attorney, to file a new warrant*. When an at-
torney is thus changed, the attorney newly coming in is bound to take
notice at his peril, of the rules to which the former attorney was
liable'' : And till an order is obtained, the opposite party and his at-
torney are justified in considering the former attorney as being still
employed ; and are not bound to take notice of any proceedings in
the name of another attorney : Therefore, payment to the plaintiff's
late attorney, changed without leave of the court, has been held to be
good*^: and notice of justifying bail", or a plea put in"^, by a new at-
torney, without any order for changing ihe attorney in the cause, is
irregular ; and the plaintiff is not bound to accept such notice or plea.
But the sheriff or his bail may put in and justify bail above, by their
own attorney'. And where the defendant is a prisoner, notice of jus-
tification may be given by a new attorney, without an order for
changing the attorney before employed''. So, where a plea had been
l)ut in by a new attorney, without any order for changing the attor-
ney, it was holden by the court of Common Pleas, that the plaintiff
waived the irregularity, by taking the plea out of the office, and keep-
ing it'. And a party called upon to shew cause, may oppose the rule
in person, after an order has been obtained for changing the attorney,
although a copy of it has not been served on the opposite party"^. If
an attorney die, ])ending the suit, his warrant is deterniined" ; and
by Stat. 4 Hen, IV. c. 18. the justices shall make another in his
place : In such case, it is necessary to give notice to the opposite
party, of the appointment of a new attorney, before any proceedings
can be taken by him" ; and if the party who employed him, having

a R. M. 1634. § 10. K. B. R. M. 1CJ4. 48. 2 Marsh. 365, 6. S. C.

§ 13. C. P. '' 6 East, 349. but see 13 Ves. IGI. 195.

l' 1 Lil. P. R. 134. 143. S Mod. 306. 12 in Chan.

Mod. 440. i 7 Taunt. 48. 2 Marsh. 365, 6. S. C. 1

'^ Append. Chap. IV. § 6, 7. Chit. Rep. 81.2 Barn. & Aid. 604. 1 Chit.

<l 1 Taunt. 44. Rep. 329. S. C.

e R. M. 1654. § 10. K. B. R. M. 1654. § k i Chit. Rep. 291.

13. C. P. ' 2 New Rtp. C. P. 509.

f 1 Blac. Rep. 8. m 4 Taunt, 669.

e2 Blac. Rop. 1323, Doug. 217. 6 " 1 Lil. P. R. 141.

•j'aunt. 532. 2 Marsh. 257. S. C. 7 Taunt, " 1 Taunt. 342.



UY ATTORNEV. 91

notice of his death, will not appoint another attorney, liis adversary
may proceed in the action '.

At common law, the warrant of attorney might have been Jiled,
and entered of record, at any time before; judgment'': but there arc
several acts of parliament", recpjiiiiig it to bo done sooner, under
severe penalties. By the last of these acts it is provided, that " the
*' attorney for the |)lainliir shall file his warrant of attorney, with
*' the i)roj)er oflicer, the same terni lie declares ; and the attorney for
" the defendant, the same term he appears, under the penalties in-
" flieted by former laws." Uj)on this act of parliament the court
of King's Bench made a rule'', " that the defendant's attorney, at the
" tinie of his aj)pearance, shall give the j)laintitt's attorney, the
" warrant of attorney for the defendant; and at the time of deliver-
*' irig the copy of the declaration, or taking it out of the office, when
*' filed, shall pay four pence for the said warrant : which warrant of
"■ attorney the plainlilT's attorney shall file, with the officer appointed
" for filing it, at the same time he files, or ought to file, the warrant
" of attorney for the i)laintiflf : And if the defendant's attorney refuse
*' to pay the same, the plaintilV's attorney may sign judgment."
Notwithstanding these regulations however, it has been determined,
that the warrants of attorney may be Jiled, so as to supj)ort the pro-
ceedings, at any time pendente litCy or before final judgment;
though the attorney may be fined, for not filing them in due time^
And the plaintiflT, in the King's Bench, cannot now sign judgment, for
ihe defendant's refusing to pay four pence for the warrant of attor-
ney, when a copy of the declaration is delivered to him^

It was anciently the course of the King's Bench, to enter the
warrants of attorney on a particular roll, kept for that purpose" :
but this course was altered in the time of IVright, Ch. J. who
caused them to be entered on the top of the issue roll'', as the practice
is at this day. In the Common Pleas, they are still entered by the
clerk of the warrants, on distinct rolls, which are filed in the bundle
of common rolls in that court : And it is a rule, that " the clerk of the
treasury shall not sign or seal any record of nisi priiis, unless the
same be first signed or stamped by the clerk of the warrants, or his
deputy ; nor shall the e.vigenter receive any j^luries capias, in order

» 1 Lil. P. R. 1,17. Sty. P. R. 13. 2 Kcb. 121. 8 Mod. 77. 1 Str. 526. 2 Str. 807. 2

273. Ld. Raym. 1533, 4. Fitzgib. 191. 1 Wils.

^ 41 E<lw. III. 1. b. but see 1 Wils. 39. 39. 183.

" 18 Hen. VI c. 9. 32 Htn. VIII.c. 30. § *" 4 Dunif. & East, 370.

2, 3. 18 Eiiz. c. 14. § 3. 4 & 5 Ann. c.lG. g 1 Salk. 88.

^ R. M. 5 Ann. 2. K. D. I' /,/. HjUI. R. E. 4 Jac. II. K. B.

*= Dyer, 180. 225. do. Jac. 277. March,



02 OF THE PROSECUTION, ScC.

to make an e.rigent or proclamation thereon, before (he same is so
si"-iic(l or stamped' :" And no judjiment whatever, (except final judg-
ments upon posteas and writs of inquiry, and nonproHsesJ shall
be sl"-ned by any of the prothonotaries, unless the stamp of the clerk
of the warrants be first impressed on the paper, whereon such judg-
ment is to be sii^ned, whereby it may appear that warrants of attorney
are duly filed''. The want of a warrant of attorney is aided, after
verdict, by the statutes of jeofails'' : and by the statute of 8 Hen. VI.
c. 12. a misprision of the clerk in the warrant may be amended, in
affirmance of the judgment''.

It only remains to be observed, with regard to the warrant of
attorney, that by the act of parliament which subjects it to a stamp



Online LibraryWilliam TiddThe practice of the Courts of King's Bench and Common Pleas in personal actions and ejectment : to which are added the law and practice of extents : and the rules of court and modern decisions in the Exchequer of Pleas (Volume 1) → online text (page 16 of 90)