The Online Library of Liberty

A project of Liberty Fund, Inc.

• Commentaries On the Laws of England.
• Book the Third.: of Private Wrongs.
• Chapter I.: Of the Redress of Private Wrongs By the Mere Act of the Parties.
• Chapter II.: Of Redress By the Mere Operation of Law.
• Chapter III.: Of Courts In General.
• Chapter IV.: Of the Public Courts of Common Law and Fquity.
• * [*61 Chapter V.: Of Courts Ecclesiastical, Military, and Maritime.
• Chapter VI.: Of Courts of a Special Jurisdiction.
• Chapter VII.: Of the Cognizance of Private Wrongs.
• Chapter VIII.: Of Wrongs, and Their Remedies, Respecting the Rights of Persons.
• Chapter IX.: Of Injuries to Personal Property.
• Chapter X.: Of Injuries to Real Property; and First of Dispossession, Or Ouster of the Freehold.
• Chapter XI.: Of Dispossession, Or Ouster, of Chattels Real.
• Chapter XII.: Of Trespass.
• Chapter XIII.: Of Nuisance.
• Chapter XIV.: Of Waste.
• Chapter XV.: Of Subtraction.
• Chapter XVI.: Of Disturbance.
• Chapter XVII.: Of Injuries Proceeding From, Or Affecting, the Crown.
• Chapter XVIII.: Of the Pursuit of Remedies By Action; and First of the Original Writ.
• Chapter XIX.: Of Process.
• Chapter XX.: Of Pleading
• Chapter XXI.: Of Issue and Demurrer.
• Chapter XXII.: Of the Several Species of Trial.
• Chapter XXIII.: Of the Trial By Jury.
• Chapter XXIV.: Of Judgment and Its Incidents.
• Chapter XXV.: Of Proceedings In the Nature of Appeals.
• Chapter XXVI.: Of Execution.
• Chapter XXVII.: Of Proceedings In the Courts of Equity.
• Appendix.
• No. I.: Proceedings On a Writ of Right Patent.
• * *vii.] No. II.: Proceedings On an Action of Trespass In Ejectment, By Original, In the King’s Bench.
• * [*xiii. No. III.: Proceedings On an Action of Debt In the Court of Common Pleas; Removed Into the King’s Bench By Writ of Error.
• Book the Fourth.: of Public Wrongs.
• Chapter I.: Of the Nature of Crimes, and Their Punishment.
• Chapter II.: Of the Persons Capable of Committing Crimes.
• Chapter III.: Of Principals and Accessories.
• Chapter IV.: Of Offences Against God and Religion.
• * [*66 Chapter V.: Of Offences Against the Law of Nations.
• Chapter VI.: Of High Treason.
• Chapter VII.: Of Felonies Injurious to the King’s Prerogative.
• Chapter VIII.: Of PrÆmunire.
• Chapter IX.: Of Misprisions and Contempts Affecting the King and Government.
• Chapter X.: Of Offences Against Public Justice.
• Chapter XI.: Of Offences Against the Public Peace.
• Chapter XII.: Of Offences Against Public Trade.
• Chapter XIII.: Of Offences Against the Public Health, and the Public Police Or Economy.
• Chapter XIV.: Of Homicide.
• Chapter XV.: Of Offences Against the Persons of Individuals.
• Chapter XVI.: Of Offences Against the Habitations of Individuals.
• Chapter XVII.: Of Offences Against Private Property.
• Chapter XVIII.: Of the Means of Preventing Offences.
• Chapter XIX.: Of Courts of a Criminal Jurisdiction.
• Chapter XX.: Of Summary Convictions.
• Chapter XXI.: Of Arrests.
• Chapter XXII.: Of Commitment and Bail.
• Chapter XXIII.: Of the Several Modes of Prosecution.
• Chapter XXIV.: Of Process Upon an Indictment.
• Chapter XXV.: Of Arraignment and Its Incidents.
• Chapter XXVI.: Of Plea, and Issue.
• Chapter XXVII.: Of Trial and Conviction.
• Chapter XXVIII.: Of the Benefit of Clergy.
• Chapter XXIX.: Of Judgment and Its Consequences.
• Chapter XXX.: Of Reversal of Judgment.
• Chapter XXXI.: Of Reprieve and Pardon.
• Chapter XXXII.: Of Execution.
• Chapter XXXIII.: Of the Rise, Progress, and Gradual Improvements of the Laws of England.
• Appendix.
• Sect. 1.: Record of an Indictment and Conviction of Murder, At the Assizes.
• Sect. 2.: Conviction of Manslaughter.
• Sect. 3.: Entry of a Trial Instanter In the Court of King’s Bench, Upon a Collateral Issue; and Rule of Court For Execution Thereon.
• Sect. 4.: Warrant of Execution On Judgment of Death, At the General Gaol-delivery In London and Middlesex.
• Sect. 5.: Writ of Execution Upon a Judgment of Murder, Before the King In Parliament.
• Barron Field, an Analysis of Blackstone’s Commentaries On the Laws of England.

APPENDIX.

No. I.

PROCEEDINGS ON A WRIT OF RIGHT PATENT.

Sect. 1.

Writ of Right Patent in the Court Baron.No. 1.

George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to Willoughby, earl of Abingdon, greeting. We command you that without delay you hold full right to William Kent, Esquire, of one messuage and twenty acres of land, with the appurtenances, in Dorchester, which he claims to hold of you by the free service of one penny yearly in lieu of all services, of which Richard Allen deforces him. And unless you do so, let the sheriff of Oxfordshire do it, that we no longer hear complaint thereof for defect of right. Witness ourself at Westminster, the twentieth day of August, in the thirtieth year of our reign.

Sect. 2.

Writ of Tolt, to remove it into the County Court.

Charles Morton, Esquire, sheriff of Oxfordshire, to John Long, bailifferrant of our Lord the King and of myself, greeting. Because by the complaint of William Kent, Esquire, personally present at my county court, to wit, on Monday, the sixth day of September, in the thirtieth year of the reign of our Lord George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, at Oxford, in the shirehouse there holden, I am informed, that although he himself the writ of our said Lord the King of right patent directed to Willoughby, earl of Abingdon, for this that *[*ii.he should hold full right to the said William Kent, of one messuage and twenty acres of land, with the appurtenances, in Dorchester, within my said county, of which Richard Allen deforces him, hath brought to the said Willoughby, earl of Abingdon; yet for that the said Willoughby, earl of Abingdon, favoureth the said Richard Allen in this part, and hath hitherto delayed to do full right according to the exigence of the said writ, I command you on the part of our said Lord the King, firmly enjoining that in your proper person you go to the courtbaron of the said Willoughby, earl of Abingdon, at Dorchester aforesaid, and take away the plaint which there is between the said William Kent and Richard Allen by the said writ into my county court to be next holden; and summon by good summoners the said Richard Allen that he be at my county court, on Monday, the fourth day of October next coming, at Oxford, in the shirehouse there to be holden, to answer to the said William Kent thereof. And have you there then the said plaint, the summoners, and this precept. Given in my county court, at Oxford, in the shirehouse, the sixth day of September, in the year aforesaid.

Sect. 3.

Writ of Pone, to remove it into the Court of Common Pleas.

George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. Put at the request of William Kent, before our justices at Westminster, on the morrow of All Souls, the plaint which is in your county court by our writ of right, between the said William Kent, demandant, and Richard Allen, tenant, of one messuage and twenty acres of land, with the appurtenances, in Dorchester: and summon by good summoners the said Richard Allen, that he be then there to answer to the said William Kent thereof. And have you there the summoners and this writ. Witness ourself at Westminster, the tenth day of September, in the thirtieth year of our reign.

Sec. 4.

Writ of Right,quia Dominus remisit Curiam.

George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. Command Richard Allen, that he justly and without delay render unto William Kent one messuage and twenty acres of land, with the appurtenances, in Dorchester, which he claims to be his right and inheritance, and whereupon he complains that the aforesaid Richard unjustly deforces him. And unless he shall do so, and **iii.]if the said William shall give you security of prosecuting his claim, then summon by good summoners the said Richard, that he appear before our justices at Westminster, on the morrow of All Souls, to show wherefore he hath not done it. And have you there the summoners and this writ. Witness ourself at Westminster, the twentieth day of August, in the thirtieth year of our reign. Because Willoughby, earl of Abingdon, the chief lord of that fee, hath thereupon remised unto us his court.Sheriff’s return.

Sect. 5.

The Record, with the Award of Battel.1

Pleas at Westminster before Sir John Willes, Knight, and his brethren, Justices of the Bench of the Lord the King at Westminster, of the term of Saint Michael, in the thirtieth year of the reign of the Lord George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, &c.

Oxon, to wit. } William Kent,Writ. Esquire, by James Parker, his attorney, demands against Richard Allen, gentleman, one messuage and twenty acres of land, with the appurtenances, in Dorchester, as his right and inheritance,Dominus remisit curiam. by writ of the Lord the King of right, because Willoughby, earl of Abingdon, the chief lord of that fee, hath now thereupon remised to the Lord the King his court.Count.And whereupon he saith that he himself was seised of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right, in the time of peace, in the time of the Lord George the First,Esplees. late King of Great Britain, by taking the esplees thereof to the value2 [of ten shillings, and more, in rents, corn, and grass.] And that such is his right he offers [suit and good proof.] And the said Richard Allen,Defence. by Peter Jones his attorney, comes and defends the right of the said William Kent, and his seisin, when [and where it shall behoove him,] and all [that concerns it,] and whatsoever [he ought to defend] and chiefly the tenements aforesaid, with the appurtenances, as of fee and right, [namely, one messuage and twenty acres of land, with appurtenances in Dorchester.Wager of battel.] And this he is ready to defend by the body of his freeman, George Rumbold by name, who is present here in court, ready to defend the same by his body, or in what manner soever the court of the Lord the King shall consider that he ought to defend. **iv.]And if any mischance should befall the said George, (which God defend,) he is ready to defend the same by another man,Replication. who [is bounden and able to defend it.] And the said William Kent saith, that the said Richard Allen unjustly defends the right of him the said William, and his seisin, &c., and all, &c., and whatsoever, &c., and chiefly of the tenements aforesaid, with the appurtenances, as of fee and right, &c.: because he saith that he himself was seised of the tenements aforesaid, with the appurtenances, in his demesne as of fee and right, in the time of peace, in the time of the said Lord George the First, late King of Great Britain, by taking the esplees thereof to the value, &c. And that such is his right he is prepared to prove by the body of his freeman,Joinder of battel. Henry Broughton by name, who is present here in court ready to prove the same by his body, or in what manner soever the court of the Lord the King shall consider that he ought to prove; and if any mischance should befall the said Henry, (which God defend,) he is ready to prove the same by another man, who, &c. And hereupon it is demanded of the said George and Henry whether they are ready to make battel as they before have waged it; who say that they are. And the same George Rumbold giveth gage of defending,Gages given. and the said Henry Broughton giveth gage of proving; and such engagement being given as the manner is, it is demanded of the said William Kent and Richard Allen if they can say any thing wherefore battel ought not to be awarded in this case; who say that they cannot. Therefore it is considered, that battel be made thereon, &c.Award of battel. Pledges.And the said George Rumbold findeth pledges of battel, to wit, Paul Jenkins and Charles Carter; and the said Henry Broughton findeth also pledges of battel, to wit, Reginald Read and Simon Tayler.Continuance.And thereupon day is here given as well to the said William Kent as to the said Richard Allen, to wit, on the morrow of Saint Martin next coming, by the assent as well of the said William Kent as of the said Richard Allen. And it is commanded that each of them then have here his champion, sufficiently furnished with competent armour as becomes him, and ready to make the battel aforesaid; and that the bodies of them in the mean time be safely kept, on peril that shall fall thereon.Champions appear.At which day here come as well the said William Kent as the said Richard Allen by their attorneys aforesaid, and the said George Rumbold and Henry Broughton in their proper persons likewise come, sufficiently furnished with competent armour as becomes them, ready to make the battel aforesaid as they had before waged it. And hereupon day is further given by the court here,Adjournment to Tothill Fields. as well to the said William Kent as to the said Richard Allen, at Tothill, near the city of Westminster, in the county of Middlesex, to wit, on the morrow of the Purification of the Blessed Virgin Mary next coming, by the assent as well of the said *[*v.William as of the aforesaid Richard. And it is commanded that each of them have then there his champion, armed in the form aforesaid, ready to make the battel aforesaid, and that their bodies in the mean time, &c. At which day here, to wit, at Tothill aforesaid, comes the said Richard Allen by his attorney aforesaid, and the said George Rumbold and Henry Broughton in their proper persons likewise come, sufficiently furnished with competent armour as becomes them, ready to make the battel aforesaid as they before had waged it. And the said William Kent being solemnly called doth not come,Demandant nonsuit. nor hath prosecuted his writ aforesaid. Therefore it is considered, that the same William, and his pledges of prosecuting, to wit, John Doe and Richard Roe, be in mercy for his false complaint, and that the same Richard go thereof without a day, &c.,Final judgment for the tenant. and also that the said Richard do hold the tenements aforesaid with the appurtenances to him and his heirs, quit of the said William and his heirs, forever, &c.

Sect. 6.

Trial by the Grand Assize.

—And the said Richard Allen, by Peter Jones, his attorney,Defence. comes and defends the right of the said William Kent, and his seisin, when &c., and all, &c., and whatsoever, &c., and chiefly of the tenements aforesaid with the appurtenances, as of fee and right, &c.,Mise. and puts himself upon the grand assize of the Lord the King, and prays recognition to be made, whether he himself hath greater right to hold the tenements aforesaid, with the appurtenances, to him and his heirs as tenants thereof, as he now holdeth them, or the said William to have the said tenements with the appurtenances,Tender of the Demi-mark. as he above demandeth them. And he tenders here in court six shillings and eight-pence to the use of the Lord the now King, &c., for that, to wit, it may be inquired of the time [of the seisin alleged by the said William.] And he therefore prays that it may be inquired by the assize, whether the said William Kent was seised of the tenements aforesaid, with the appurtenances in his demesne, as of fee, in the time of the said Lord the King George the First, as the said William in his demand before hath alleged. Therefore it is commanded the sheriff,Summons of the knights. that he summon by good summoners four lawful knights of his county, girt with swords, that they be here on the octaves of Saint Hilary next coming, to make election of the assize aforesaid. The same day is given as well to the said William Kent as to the said Richard Allen, here, &c.Return. At which day here come as well the said William Kent as the said Richard Allen; and the sheriff, to wit, Sir Adam Alstone, Knight, now returns, that he had caused to be summoned Charles Stephens, Randel Wheler, Toby Cox, and Thomas Munday, four lawful knights of *[*vi.his county, girt with swords, by John Doe and Richard Roe, his bailiffs, to be here at the said octaves of Saint Hilary, to do as the said writ thereof commands and requires;No. II. and that the said summoners, and each of them, are mainprized by John Day and James Fletcher. Whereupon the said Charles Stephens, Randel Wheler, Toby Cox, and Thomas Munday, four lawful knights of the county aforesaid, girt with swords, being called, in their proper persons come, and being sworn upon their oath in the presence of the parties aforesaid,Election of the recognitors. chose of themselves and others twenty-four, to wit, Charles Stephens, Randel Wheler, Toby Cox, Thomas Munday, Oliver Greenway, John Boys, Charles Price, knights; Daniel Prince, William Day, Roger Lucas, Patrick Fleming, James Harris, John Richardson, Alexander Moore, Peter Payne, Robert Quin, Archibald Stuart, Bartholomew Norton, and Henry Davis, Esquires; John Porter, Christopher Ball, Benjamin Robinson, Lewis Long, William Kirby, gentlemen, good and lawful men of the county aforesaid, who neither are of kin to the said William Kent nor to the said Richard Allen,Venire facias. to make recognition of the grand assize aforesaid. Therefore it is commanded the sheriff, that he cause them to come here from the day of Easter in fifteen days, to make the recognition aforesaid. The same day is there given to the parties aforesaid. At which day here come as well the said William Kent as the said Richard Allen,Recognitors sworn. by their attorneys aforesaid, and the recognitors of the assize, whereof mention is made above, being called, come, and certain of them, to wit, Charles Stephens, Randel Wheler, Toby Cox, Thomas Munday, Charles Price, knights; Daniel Prince, Roger Lucas, William Day, James Harris, Peter Payne, Robert Quin, Henry Davis, John Porter, Christopher Ball, Lewis Long, and William Kirby, being elected, tried,Verdict for the demandant. and sworn upon their oath, say that the said William Kent hath more right to have the tenements aforesaid, with the appurtenances, to him and his heirs, as he demandeth the same, than the said Richard Allen to hold the same as he now holdeth them, according as the said William Kent by his writ aforesaid hath supposed.Judgment.Therefore it is considered, that the said William Kent do recover his seisin against the said Richard Allen of the tenements aforesaid, with the appurtenances, to him and his heirs, quit of the said Richard Allen and his heirs forever: and the said Richard Allen in mercy, &c.

**vii.]No. II.

PROCEEDINGS ON AN ACTION OF TRESPASS IN EJECTMENT, BY ORIGINAL, IN THE KING’S BENCH.

Sect. 1.

The Original Writ.

GEORGE the Second,Si fecerit te securum. by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Berkshire, greeting. If Richard Smith shall give you security of prosecuting his claim, then put by gage and safe pledges William Stiles, late of Newbury, gentleman, so that he be before us on the morrow of All Souls, wheresoever we shall then be in England, to show wherefore with force and arms he entered into one messuage, with the appurtenances, in Sutton, which John Rogers, Esquire, hath demised to the aforesaid Richard, for a term which is not yet expired, and ejected him from his said farm, and other enormities to him did, to the great damage of the said Richard, and against our peace. And have you there the names of the pledges and this writ. Witness ourself at Westminster, the twelfth day of October, in the twenty-ninth year of our reign.Sheriff’s; return.

Sect. 2.

Copy of the Declaration against the Casual Ejector, who gives Notice thereupon to the Tenant in Possession.

Michaelmas, the 29th of King George the Second.

Mr. George Saunders,

I am informed that you are in possession of, or claim title to,Notice. the premises mentioned in this declaration of ejectment, or to some part thereof; and I, being sued in this action as a casual ejector, and having no claim or title to the same, do advise you to appear next Hilary Term in his Majesty’s court of King’s Bench at Westminster, by some attorney of that court, and then and there, by a rule to be made of the same court, to cause yourself to be made defendant in my stead; otherwise I shall suffer judgment to be entered against me, and you will be turned out of possession.

Your loving friend,

William Stiles.

5th January, 1756.

*[*ix.Sect. 3.

The Rule of Court.

Hilary Term, in the twenty-ninth Year of King George the Second.

Berks, to wit. } It is ordered by the court, by the assent of both parties,Smith against Stiles, for one messuage with the appurtenances in Sutten, on the demise of John Rogers. and then attorneys, that George Saunders, gentleman, may be made defendant, in the place of the now defendant, William Stiles, and shall immediately appear to the plaintiff’s action, and shall receive a declaration in a plea of trespass and ejectment of the tenements in question, and shall immediately plead thereto Not Guilty; and, upon the trial of the issue, shall confess lease, entry, and ouster, and insist upon his title only. And if upon the trial of the issue, the said George do not confess lease, entry, and ouster, and by reason thereof the plaintiff cannot prosecute his writ, then the taxation of costs upon such non pros. shall cease, and the said George shall pay such costs to the plaintiff, as by the court of our Lord the King here shall be taxed and adjudged, for such his default in non-performance of this rule; and judgment shall be entered against the said William Stiles, now the casual ejector, by default. And it is further ordered, that if upon the trial of the said issue a verdict shall be given for the defendant, or if the plaintiff shall not prosecute his writ upon any other cause than for the not confessing lease, entry, and ouster as aforesaid, then the lessor of the plaintiff shall pay costs, if the plaintiff himself doth not pay them.

By the Court.

Martin, for the plaintiff. }

Newman, for the defendant. }

Sect. 4.

The Record.

Pleas before the Lord the King at Westminster, of the Term of Saint Hilary, in the twenty-ninth Year of the Reign of the Lord George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, &c.

Berks, to wit. } George Saunders, late of Sutton, in the county aforesaid, gentleman, was attached to answer Richard Smith, of a plea, wherefore with force and arms he entered into one messuage, with the appurtenances, in Sutton, which John Rogers, Esq. hath demised to the said Richard for a term which is not yet expired, and ejected him from his said farm, and other wrongs to him did, to the great damage of the said Richard, and against the peace of the Lord the King that **x.]now is. And whereupon the said Richard by Robert Martin,Declaration, or sount. his attorney, complains, that whereas the said John Rogers on the first day of October in the twenty-ninth year of the reign of the Lord the King that now is, at Sutton aforesaid, had demised to the same Richard the tenement aforesaid, with the appurtenances, to have and to hold the said tenement, with the appurtenances, to the said Richard and his assigns, from the feast of Saint Michael the Archangel then last past, to the end and term of five years from thence next following and fully to be complete and ended; by virtue of which demise the said Richard entered into the said tenement, with the appurtenances, and was thereof possessed: and, the said Richard being so possessed thereof, the said George afterwards, that is to say, on the first day of October in the said twenty-ninth year, with force and arms, that is to say, with swords, staves, and knives, entered into the said tenement, with the appurtenances, which the said John Rogers demised to the said Richard in form aforesaid for the term aforesaid, which is not yet expired, and ejected the said Richard out of his said farm, and other wrongs to him did, to the great damage of the said Richard, and against the peace of the said Lord the King; whereby the said Richard saith that he is injured and endamaged to the value of twenty pounds: and thereupon he brings suit,Defence.[and good proof.] And the aforesaid George Saunders, by Charles Newman, his attorney, comes and defends the force and injury, when [and where it shall behoove him;]Plea, not guilty. Issue. and saith that he is in no wise guilty of the trespass and ejectment aforesaid, as the said Richard above complains against him; and thereof he puts himself upon the country; and the said Richard doth likewise the same;Venire awarded.Therefore let a jury come thereupon before the Lord the King, on the octave of the Purification of the Blessed Virgin Mary, wheresoever he shall then be in England, who neither [are of kin to the said Richard, nor to the said George,]Respite, for default of jurors. to recognise [whether the said George be guilty of the trespass and ejectment aforesaid;] because as well [the said George as the said Richard, between whom the difference is, have put themselves on the said jury.] The same day is there given to the parties aforesaid. Afterwards the process therein, being continued between the said parties of the plea aforesaid by the jury, is put between them in respite, before the Lord the King,Nisi prius. until the day of Easter in fifteen days, wheresoever the said Lord the King shall then be in England; unless the justices of the Lord the King assigned to take assizes in the county aforesaid, shall have come before that time, to wit, on Monday the eighth day of March, at Reading in the said county, by the form of the statute [in that case provided,] by reason of the default of the jurors, [summoned to appear as aforesaid.] At which day before the Lord the King, at Westminster, come the parties aforesaid by their attorneys aforesaid; and the aforesaid justices of **xi.]assize, before whom [the jury aforesaid came,] sent here their record before them, had in these words, to wit, Afterwards, at the day and place within contained,Postea. before Heneage Legger, Esquire, one of the Barons of the Exchequer of the Lord the King, and Sir John Eardley Wilmot, Knight, one of the justices of the said Lord the King, assigned to hold pleas before the King himself, justices of the said Lord the King, assigned to take assizes in the county of Berks by the form of the statute [in that case provided,] come as well the within-named Richard Smith, as the within-written George Saunders, by their attorneys within contained; and the jurors of the jury whereof mention is within made being called, certain of them, to wit, Charles Holloway, John Hooke, Peter Graham, Henry Cox, William Brown, and Francis Oakley, come, and are sworn upon that jury; and because the rest of the jurors of the same jury did not appear,Tales de circumstantibus. therefore others of the bystanders being chosen by the sheriff, at the request of the said Richard Smith, and by the command of the justices aforesaid, are appointed anew, whose names are affixed to the panel within written, according to the form of the statute in such case made and provided; which said jurors so appointed anew, to wit, Roger Bacon, Thomas Small, Charles Pye, Edward Hawkins, Samuel Roberts, and Daniel Parker, being likewise called, come; and together with the other jurors aforesaid before impanelled and sworn, being elected, tried, and sworn, to speak the truth of the matter within contained,Verdict for the plaintiff. upon their oath say, that the aforesaid George Saunders is guilty of the trespass and ejectment within written, in manner and form as the aforesaid Richard Smith within complains against him; and assess the damages of the said Richard Smith, on occasion of that trespass and ejectment, besides his costs and charges which he hath been put unto about his suit in that behalf, to twelve pence; and, for those costs and charges, to forty shillings. Whereupon the said Richard Smith, by his attorney aforesaid, prayeth judgment against the said George Saunders, in and upon the verdict aforesaid by the jurors aforesaid given in the form aforesaid; and the said George Saunders, by his attorney aforesaid, saith, that the courtMotion in arrest of judgment. here ought not to proceed to give judgment upon the said verdict, and prayeth that judgment against him the said George Saunders, in and upon the verdict aforesaid by the jurors aforesaid given in the form aforesaid, may be stayed, by reason that the said verdict is insufficient and erroneous, and that the same verdict may be quashed, and that the issue aforesaid may be tried anew by other jurors to be afresh impanelled. And, because the court of the Lord the King here is not yet advised of givingContinuance. their judgment of and upon the premises, therefore day thereof is given as well to the said Richard Smith as the said George Saunders, before the Lord the King, until the morrow of the Ascension of our Lord, wheresoever the said Lord *[*xii.the King shall then be in England, to hear their judgment of and upon the premises, for that the court of the Lord the King is not yet advised thereof. At which day before the Lord the King, at Westminster, come the parties aforesaid by their attorneys aforesaid; upon which, the record and matters aforesaid having been seen, and by the court of the Lord the King now here fully understood, and all and singular the premises having been examined, and mature deliberation being had thereupon,Opinion of the court. for that it seems to the court of the Lord the King now here that the verdict aforesaid is in no wise insufficient or erroneous, and that the same ought not to be quashed, and that no new trial ought to be had of the issue aforesaid,Judgment for the plaintiff.Therefore it is considered, that the said Richard do recover against the said George his term yet to come, of and in the said tenements, with the appurtenances, and the said damages assessed by the said jury in form aforesaid,Costs. and also twenty-seven pounds six shillings and eight-pence for his costs and charges aforesaid, by the court of the Lord the King here awarded to the said Richard, with his assent, by way of increase; which said damages in the whole amount to twenty-nine pounds, seven shillings and eight-pence. “And let the said George be taken,Capiatur [Editor: illegible character] fine.[until he maketh fine to the Lord the King.”]3And hereupon the said Richard, by his attorney aforesaid, prayeth a writ to the Lord the King. to be directed to the sheriff of the county aforesaid, to cause him to have possession of his term aforesaid yet to come, of and in the tenements aforesaid,Writ of possession with the appurtenances; and it is granted unto him, returnable before the Lord the King on the morrow of the Holy Trinity, wheresoever he shall then be in England. At which day before the Lord the King, at Westminster, cometh the said Richard, by his attorney aforesaid;and return. and the sheriff, that is to say, Sir Thomas Reeve, Knight, now sendeth, that he by virtue of the writ aforesaid to him directed, on the ninth day of June last past, did cause the said Richard to have his possession of his term aforesaid yet to come, of and in the tenements aforesaid, with the appurtenances, as he was commanded.

*[*xiii.No. III.

PROCEEDINGS ON AN ACTION OF DEBT IN THE COURT OF COMMON PLEAS; REMOVED INTO THE KING’S BENCH BY WRIT OF ERROR.

Sect. 1.

Original.

George the Second, by the grace of God, of Great Britain,Præcipe. France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. Command Charles Long, late of Burford, gentleman, that justly and without delay he render to William Burton two hundred pounds, which he owes him and unjustly detains, as he saith. And unless he shall so do, and if the said William shall make you secure of prosecuting his claim, then summon by good summoners the aforesaid Charles, that he be before our justices, at Westminster, on the octave of Saint Hilary, to show wherefore he hath not done it.No. III. And have you there then the summoners, and this writ. Witness ourself at Westminster, the twenty-fourth day of December,Sheriff’s return in the twenty-eighth year of our reign.

Sect. 2.

Process.

George the Second,Attachment. by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire,Pone. greeting. Put by gage and safe pledges Charles Long, late of Burford, gentleman, that he be before our justices, at Westminster, on the octave of the Purification of the Blessed Mary, to answer to William Burton of a plea, that he render to him two hundred pounds which he owes him and unjustly detains, as he saith; and to show wherefore he was not before our justices at Westminster on the octave of Saint Hilary, as he was summoned. And have there then the names of the pledges and this writ Witness, Sir John Willes, Knight, at Westminster, the twenty-third day of January,Sheriff’s return. in the twenty-eighth year of our reign.

**xiv.]George the Second,Capias Utiapatum. by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. We command you, that you distrein Charles Long, late of Burford, gentleman, by all his lands and chattels within your bailiwick, so that neither he nor any one through him may lay hands on the same, until you shall receive from us another command thereupon; and that you answer to us of the issues of the same; and that you have his body before our justices at Westminster, from the day of Easter, in fifteen days, to answer to William Burton of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith, and to hear his judgment of his many defaults. Witness, Sir John Willes, Knight, at West minster, the twelfth day of February, in the twenty-eighth year of our reign.

The within-named Charles Long hath nothing in my bailiwick whereby he may be distreined.Sheriff’s return. Nihil.

George the Second, by the grace of God,Capias ad respondendum. of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. We command you that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before our justices at Westminster, from the day of Easter, in five weeks, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith; and whereupon you have returned to our justices at Westminster that the said Charles hath nothing in your bailiwick whereby he may be distreined. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the sixteenth day of April, in the twenty-eighth year of our reign.Sheriff’s return. Non est inventus.

The within-named Charles Long is not found in my bailiwick.

George the Second,Testatum capias. by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Berkshire, greeting. We command you that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before our justices at Westminster, on the morrow of the Holy Trinity, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith; and whereupon our sheriff of Oxfordshire hath made a return to our justices at Westminster at a certain day now past, that the **xv.]aforesaid Charles is not found in his bailiwick; and thereupon it is testified in our said court that the aforesaid Charles lurks, wanders, and runs about in your county. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the seventh day of May, in the twenty-eighth year of our reign.

By virtue of this writ to me directed, I have taken the body of the within-named Charles Long; which I have ready at the day and place within contained, according as by this writ it is commanded me.Sheriff’s return. Cepi corpus.

George the Second, by the grace of God, of Great Britain,Alias capias. France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. We command you, as formerly we commanded you, that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before our justices at Westminster, on the morrow of the Holy Trinity, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the seventh day of May, in the twenty-eighth year of our reign.

The within-named Charles Long is not found in my bailiwick.

George the Second, by the grace of God, of Great Britain,Sheriff’s return. Non est inventus. Pluries capias. France, and Ireland King, Defender of the Faith, and so forth: to the sheriff of Oxfordshire, greeting. We command you, as we have more than once commanded you, that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before our justices at Westminster, from the day of the Holy Trinity, in three weeks, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the thirtieth day of May, in the twenty-eighth year of our reign.

The within-named Charles Long is not found in my bailiwick.Sheriff’s return. Non est inventus.

*[*xvi.George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth;Exigi facias. to the sheriff of Oxfordshire, greeting. We command you that you cause Charles Long, late of Burford, gentleman, to be required from county court to county court, until, according to the law and custom of our realm of England, he be outlawed if he doth not appear; and if he doth appear, then take him and cause him to be safely kept, so that you may have his body before our justices at Westminster, on the morrow of All Souls, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith; and whereupon you have returned to our justices at Westminster, from the day of the Holy Trinity, in three weeks, that he is not found in your bailiwick. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the eighteenth day of June, in the twenty-eighth year of our reign.

By virtue of this writ to me directed at my county court, held at Oxford,Sheriff’s return. Primo exactus. in the county of Oxford, on Thursday the twenty-first day of June, in the twenty-ninth year of the reign of the Lord the King within written, the within-named Charles Long was required the first time and did not appear; and at my county court, held at Oxford aforesaid,Secundo exactus. on Thursday the twenty-fourth day of July, in the year aforesaid, the said Charles Long was required the second time and did not appear; and at my county court,Tertio exactus. held at Oxford aforesaid, on Thursday the twenty-first day of August, in the year aforesaid, the said Charles Long was required the third time and did not appear; and at my county court, held at Oxford aforesaid,Quarto exactus. on Thursday the eighteenth day of September, in the year aforesaid, the said Charles Long was required the fourth time and did not appear;Quinto exactus. and at my county court, held at Oxford aforesaid, on Thursday the sixteenth day of October, in the year aforesaid, the said Charles Long was required the fifth time and did not appear; therefore the said Charles Long,Ideo utlagatus. by the judgment of the coroners of the said Lord the King, of the county aforesaid, according to the law and custom of the kingdom of England, is outlawed.

George the Second, by the grace of God, of Great Britain,Writ of proclamation. France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Oxfordshire, greeting. Whereas, by our writ, we have lately commanded you that you should cause Charles Long, late of Burford, gentleman, to be required from county court to county court, until, according to *[*xviithe law and custom of our realm of England, he should be outlawed if he did not appear; and if he did appear, then that you should take him and cause him to be safely kept, so that you might have his body before our justices at Westminster, on the morrow of All Souls, to answer to William Burton, gentleman, of a plea that he render to him two hundred pounds which he owes him and unjustly detains, as he saith: Therefore, we command you, by virtue of the statute in the thirty-first year of the Lady Elizabeth, late Queen of England, made and provided, that you cause the said Charles Long to be proclaimed, upon three several days, according to the form of that statute, (whereof one proclamation shall be made at or near the most usual door of the church of the parish wherein he inhabits,) that he render himself unto you; so that you may have his body before our justices at Westminster, at the day aforesaid, to answer the said William Burton of the plea aforesaid. And have you there then this writ. Witness, Sir John Willes, Knight, at Westminster, the eighteenth day of June, in the twenty-eighth year of our reign.

Sheriff’s return. Proclamari feci. By virtue of this writ to me directed, at my county court held at Oxford, in the county of Oxford, on Thursday the twenty-sixth day of June, in the twenty-ninth year of the reign of the Lord the King within written, I caused to be proclaimed the first time; and at the general quarter sessions of the peace, held at Oxford aforesaid, on Tuesday the fifteenth day of July in the year aforesaid. I caused to be proclaimed the second time; and at the most usual door of the church of Burford within written, on Sunday the third day of August in the year aforesaid, immediately after divine service, one month at the least before the within-named Charles Long was required the fifth time, I caused to be proclaimed the third time, that the said Charles Long should render himself unto me, as within it is commanded me.

George the Second,Capias utlagatum. by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Berkshire, greeting. We command you, that you omit not by reason of any liberty of your county, but that you take Charles Long, late of Burford, in the county of Oxford, gentleman, (being outlawed in the said county of Oxford, on Thursday the sixteenth day of October last past, at the suit of William Burton, gentleman, of a plea of debt, as the sheriff of Oxfordshire aforesaid returned to our justices at Westminster on the morrow of All Souls then next ensuing,) if the said Charles Long may be found in your bailiwick; and him safely keep, so that you may **xviii.] have his body before our justices at Westminster from the day of St. Martin in fifteen days, to do and receive what our court shall consider concerning him in this behalf. Witness, Sir John Willes, Knight, at Westminster, the sixth day of November, in the twenty-ninth year of our reign.

By virtue of this writ to me directed,Sheriff’s return. Cepi corpus. I have taken the body of the within-named Charles Long; which I have ready at the day and place within contained, according as by this writ it is commanded me.

Sect. 3.

4Bill of Middlesex, and Latitat thereupon in the Court of King’s Bench.

Middlesex, to wit. } The Sheriff is commanded that he take Charles Long,Bill of Middlesex for trespass. late of Burford, in the county of Oxford, if he may be found in his bailiwick, and him safely keep, so that he may have his body before the Lord the King at Westminster, on Wednesday next after fifteen days of Easter,Ac etiam in debt. to answer William Burton, gentleman, of a plea of trespass; [and also to a bill of the said William against the aforesaid Charles, for two hundred pounds of debt, according to the custom of the court of the said Lord the King, before the King himself to be exhibited;] and that he have there then this precept.

Sheriff’s return. Non est inventus. Latitat.The within-named Charles Long is not found in my bailiwick.

George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Berkshire, greeting. Whereas we lately commanded our sheriff of Middlesex that he should take Charles Long, late of Burford, in the county of Oxford, if he might be found in his bailiwick, and him safely keep, so that he might be before us at Westminster, at a certain day now past, to answer unto William Burton, gentleman, of a plea of trespass;Ac etiam. [and also to a bill of the said William against the aforesaid Charles, for two hundred pounds of debt, according to the custom of our court, before us to be exhibited;] and our said sheriff of Middlesex at that day returned to us that the aforesaid Charles was not found in his bailiwick; whereupon on the behalf of the aforesaid William, in our court before us, it is sufficiently attested that the aforesaid Charles lurks and runs about in your county: Therefore we command you that you take him, if he may be found in *[*xix.your bailiwick, and him safely keep, so that you may have his body before us at Westminster on Tuesday next after five weeks of Easter, to answer the aforesaid William of the plea [and bill] aforesaid; and have you there then this writ. Witness, Sir Dudley Ryder, Knight, at Westminster, the eighteenth day of April, in the twenty-eighth year of our reign.

By virtue of this writ to me directed,Sheriff’s return. Cepi corpus. I have taken the body of the within-named Charles Long, which I have ready at the day and place within contained, according as by this writ it is commanded me.

Sect. 4.

Writ of Quo Minus in the Exchequer.

George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth; to the sheriff of Berkshire, greeting. We command you that you omit not by reason of any liberty of your county, but that you enter the same, and take Charles Long, late of Burford, in the county of Oxford, gentleman, wheresoever he shall be found in your bailiwick, and him safely keep, so that you may have his body before the Barons of our Exchequer at Westminster on the morrow of the Holy Trinity, to answer William Burton, our debtor of a plea, that he render to him two hundred pounds which he owes him and unjustly detains, whereby he is the less able to satisfy us the debts which he owes us at our said Exchequer, as he saith that he can reasonably show that the same he ought to render: and have you there this writ. Witness, Sir Thomas Parker, Knight, at Westminster, the sixth day of May, in the twenty-eighth year of our reign.

By virtue of this writ to me directed,Sheriff’s return. Cepi corpus. I have taken the body of the within-named Charles Long, which I have ready before the barons within written, according as within it is commanded me.

Sect. 5.

Special Bail, on the Arrest of the Defendant, pursuant to the Testatum Capias, in page XIV.

Know all men, by these presents, that we, Charles Long, of Burford,Bail-bond to the sheriff. in the county of Oxford, gentleman, Peter Hamond, of Bix, in the said county, yeoman, and Edward Thomlinson, of Woodstock, in the said county, innholder, are held and firmly bound to Christopher Jones, esquire, sheriff of the county of Berks, in four hundred pounds of lawful money of Great Britain, to be paid to the said sheriff, or his certain attorney, executors, administrators, or assigns; for which payment well and truly to be made we bind ourselves, and each of us by himself *[*xx.for the whole and in gross, our and every of our heirs, executors, and administrators, firmly by these presents, sealed with our seals. Dated the fifteenth day of May, in the twenty-eighth year of the reign of our sovereign Lord George the Second, by the grace of God King of Great Britain, France, and Ireland, Defender of the Faith, and so forth, and in the year of our Lord one thousand seven hundred and fifty-five.

The condition of this obligation is such, that if the above-bounden Charles Long do appear before the justices of our sovereign Lord the King, at Westminster, on the morrow of the Holy Trinity, to answer William Burton, gentleman, of a plea of debt of two hundred pounds, then this obligation shall be void and of none effect, or else shall be and remain in full force and virtue.

You Charles Long do acknowledge to owe unto the plaintiff tour hundred pounds, and you John Rose and Peter Hamond do severally acknowledge to owe unto the same person the sum of two hundred pounds apiece, to be levied upon your several goods and chattels, lands and tenements, upon condition that,Recognisance of bail before the commissioner. if the defendant be condemned in the action, he shall pay the condemnation, or render himself a prisoner in the Fleet for the same; and, if he fail so to do, you John Rose and Peter Hamond do undertake to do it for him.

Trinity Term, 28 Geo. II.

Berks, to wit. } On a Testatum Capias from Oxfordshire against Charles Long, late of Burford, in the county of Oxford, gentleman, returnable on the morrow of the Holy Trinity,Bail piece. at the suit of William Burton, of a plea of debt of two hundred pounds:

The Bail are, John Rose, of Witney, in the county of Oxford, esquire Peter Hamond, of Bix, in the said county, yeoman.

Richard Price, attorney for the defendant, }

The party himself in 400l.

Each of the bail in 200l.

Taken and acknowledged the twenty-eighth day of May, in the year of our Lord one thousand seven hundred and fifty-five, de bene esse, before me,

Robert Grove,

one of the commissioners.

**XXI.]Sect. 6.

The Record as removed by Writ of Error.

The Lord the King hath given in charge to his trusty and beloved Sir John Willes,Writ of error. Knight, his writ closed in these words:—GEORGE the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth: to our trusty and beloved Sir John Willes, Knight, greeting. Because in the record and process, and also in the giving of judgment of the plaint, which was in our court before you and your fellows, our justices of the bench, by our writ between William Burton, gentleman, and Charles Long, late of Burford, in the county of Oxford, gentleman, of a certain debt of two hundred pounds, which the said William demands of the said Charles, manifest error hath intervened, to the great damage of him the said William, as we from his complaint are informed; we being willing that the error, if any there be, should be corrected in due manner, and that full and speedy justice should be done to the parties aforesaid in this behalf, do command you, that if judgment thereof be given, then under your seal you do distinctly and openly send the record and process of the plaint aforesaid, with all things concerning them, and this writ; so that we may have them from the day of Easter in fifteen days, wheresoever we shall then be in England; that the record and process aforesaid being inspected, we may cause to be done thereupon, for correcting that error, what of right and according to the law and custom of our realm of England ought to be done. Witness ourself at Westminster, the twelfth day of February, in the twenty-ninth year of our reign.

The record and process whereof in the said writ mention above is made, follow in these words,Chief-justice’s return. to wit:—

Pleas at Westminster before Sir John Willes,The record. Knight, and his brethren, justices of the bench of the Lord the King at Westminster, of the term of the Holy Trinity, in the twenty-eighth year of the reign of the Lord George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, &c.

Oxon, to wit. } Charles Long,Writ. late of Burford, in the county aforesaid, gentleman, was summoned to answer William Burton, of Yarnton in the said county, gentleman, of a plea that he render unto him two hundred pounds,Declaration, or sount, on a bond. which he owes him and unjustly detains, [as he saith.] And whereupon the said William, by Thomas Gough, his attorney, complains, that whereas on the first day of December, in the year of our Lord **xxii.]one thousand seven hundred and fifty-four, at Banbury in this county, the said Charles by his writing obligatory did acknowledge himself to be bound to the said William in the said sum of two hundred pounds of lawful money of Great Britain, to be paid to the said William whenever after the said Charles should be thereto required, nevertheless the said Charles (although often required) hath not paid to the said William the said sum of two hundred pounds, nor any part thereof, but hitherto altogether hath refused, and doth still refuse, to render the same; wherefore he saith that he is injured and hath damage to the value of ten pounds:Profert in curia. and thereupon he brings suit, [and good proof.] And he brings here into court the writing obligatory aforesaid; which testifies the debt aforesaid in form aforesaid: the date whereof is the day and year before mentioned.Defence.And the aforesaid Charles, by Richard Price his attorney, comes and defends the force and injury when [and where it shall behoove him,] and craves oyer of the said writing obligatory, and it is read unto him [in the form aforesaid:] he likewise craves oyer of the condition of the said writing,Oyer prayed of the bond and condition,—viz., to perform an award. and it is read unto him in these words: “The condition of this obligation is such, that if the above-bounden Charles Long, his heirs, executors, and administrators and every of them, shall and do from time to time, and at all times hereafter, well and truly stand to, obey, observe, fulfil, and keep the award, arbitrament, order, rule, judgment, final end, and determination of David Stiles, of Woodstock, in the said county, clerk, and Henry Bacon, of Woodstock aforesaid, gentleman, (arbitrators indifferently nominated and chosen by and between the said Charles Long and the above-named William Burton, to arbitrate, award, order, rule, judge, and determine of all and all manner of actions, cause or causes of action, suits, plaints, debts, duties, reckonings, accounts, controversies, trespasses, and demands whatsoever had, moved, or depending, or which might have been had, moved, or depending, by and between the said parties, for any matter, cause, or thing, from the beginning of the world until the day of the date hereof,) which the said arbitrators shall make and publish, of or in the premises, in writing under their hands and seals, or otherwise by word of mouth in the presence of two credible witnesses, on or before the first day of January next ensuing the date hereof; then this obligation to be void and of none effect, or else to be and remain in full force and virtue.” Which being read and heard,Impariance. the said Charles prays leave to imparl therein here until the octave of the Holy Trinity; and it is granted unto him. The same day is given to the said William Burton, here,Continuance. &c. At which day, to wit, on the octave of the Holy Trinity, here come as well the said William Burton as the said Charles Long, by their attorneys aforesaid; and hereupon the said William *[*xxiii.prays that the said Charles may answer to his writPlea: No such award. and count aforesaid. And the aforesaid Charles defends the force and injury, when, &c., and saith that the said William ought not to have or maintain his said action against him; because he saith, that the said David Stiles and Henry Bacon, the arbitrators before named in the said condition, did not make any such award, arbitrament, order, rule, judgment, final end, or determination, of or in the premises above specified in the said condition, on or before the first day of January, in the condition aforesaid above mentioned, according to the form and effect of the said condition: and this he is ready to verify. Wherefore he prays judgment, whether the said William ought to have or maintain his said action thereof against him [and that he may go thereof without a day.Replication, setting forth an award. ] And the aforesaid William saith that for any thing above alleged by the said Charles in pleadings he ought not to be precluded from having his said action thereof against him; because he saith, that after the making of the said writing obligatory, and before the said first day of January, to wit, on the twenty-sixth day of December, in the year aforesaid, at Banbury aforesaid, in the presence of two credible witnesses, namely, John Dew, of Chalbury, in the county aforesaid, and Richard Morris, of Wytham, in the county of Berks, the said arbitrators undertook the charge of the award, arbitrament, order, rule, judgment, final end, and determination aforesaid, of and in the premises specified in the condition aforesaid; and then and there made and published their award by word of mouth in manner and form following: that is to say, the said arbitrators did award, order, and adjudge that he the said Charles Long should forthwith pay to the said William Burton the sum of seventy-five pounds, and that thereupon all differences between them at the time of the making the said writing obligatory should finally cease and determine. And the said William further saith, that although he afterwards, to wit, on the sixth day of January, in the year of our Lord one thousand seven hundred and fifty-five, at Banbury aforesaid, requested the said Charles to pay to him the said William the said seventy-five pounds, yet (by protestation that the said Charles hath not stood to, obeyed, observed fulfilled, or kept any part of the said award, which by him the said Charles ought to have been stood to,Protestando. obeyed, observed, fulfilled, and kept) for further plea therein he saith, that the said Charles the said seventy-five pounds to the said William hath not hitherto paid; and this he is ready to verify. Wherefore he prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of the said debt, to be adjudged unto him,Demurrer. &c. And the aforesaid Charles saith, that the plea aforesaid by him the said William in manner and form aforesaid above in his replication pleaded, and the matter in the same contained, are in no wise sufficient in **xxiv.]law for the said William to have or maintain his action aforesaid thereupon against him the said Charles; to which the said Charles hath no necessity, neither is he obliged, by the law of the land, in any manner to answer; and this he is ready to verify. Wherefore, for want of a sufficient replication in this behalf, the said Charles, as aforesaid, prays judgment, and that the aforesaid William may be precluded from having his action aforesaid thereupon against him, &c. And the said Charles, according to the form of the statute in that case made and provided, shows to the court here the causes of demurrer following, to wit: that it doth not appear,Causes of demurrer. by the replication aforesaid, that the said arbitrators made the same award in the presence of two credible witnesses on or before the said first day of January, as they ought to have done, according to the form and effect of the condition aforesaid; and that the replication aforesaid is uncertain,Joinder in demurrer. insufficient, and wants form. And the aforesaid William saith, that the plea aforesaid by him the said William in manner and form aforesaid above in his replication pleaded, and the matter in the same contained, are good and sufficient in law for the said William to have and maintain the said action of him the said William thereupon against the said Charles; which said plea, and the matter therein contained, the said William is ready to verify and prove as the court shall award: and because the aforesaid Charles hath not answered to that plea, nor hath he hitherto in any manner denied the same, the said William as before prays judgment, and his debt aforesaid, together with his damages occasioned by the detention of that debt,Continuances. to be adjudged unto him, &c. And because the justices here will advise themselves of and upon the premises before they give judgment thereupon, a day is thereupon given to the parties aforesaid here, until the morrow of All Souls, to hear their judgment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said Charles as the said William, by their said attorneys; and because the said justices here will farther advise themselves of and upon the premises before they give judgment thereupon, a day is farther given to the parties aforesaid here until the octave of Saint Hilary, to hear their judgment thereupon, for that the said justices here are not yet advised thereof. At which day here come as well the said William Burton as the said Charles Long,Opinion of the court. by their said attorneys. Wherefore, the record and matters aforesaid having been seen, and by the justices here fully understood, and all and singular the premises being examined, and mature deliberation being had thereupon;Replication insufficient. for that it seems to the said justices here that the said plea of the said William Burton before in his replication pleaded, and the matter therein contained, are not sufficient in law to have and maintain the action of the aforesaid William against the aforesaid Charles; therefore it is considered, that the aforesaid William **xxv.]take nothing by his writ aforesaid, but that he and his pledges of prosecuting, to wit, John Doe and Richard Roe, be in mercy for his false complaint; and that the aforesaid Charles go thereof without a day, &c. And it is farther considered,Judgment for the defendant Querens nihil capiat per breve. Amercement. that the aforesaid Charles do recover against the aforesaid William eleven pounds and seven shillings, for his costs and charges by him about his defence in this behalf sustained, adjudged by the court here to the said Charles with his consent, according to the form of the statute in that case made and provided: and that the aforesaid Charles may have execution thereof, &c.Costs.

Afterwards, to wit, on Wednesday next after fifteen days of Easter in this same term, before the Lord the King, at Westminster, comes the aforesaid William Burton,Execution. General error assigned. by Peter Manwaring, his attorney, and saith, that in the record and process aforesaid, and also in the giving of the judgment in the plaint aforesaid, it is manifestly erred in this, to wit, that the judgment aforesaid was given in form aforesaid for the said Charles Long against the aforesaid William Burton, where, by the law of the land, judgment should have been given for the said William Burton against the said Charles Long; and this he is ready to verify.Writ of scire facias, to hear errors.And the said William prays the writ of the said Lord the King, to warn the said Charles Long to be before the said Lord the King, to hear the record and process aforesaid; and it is granted unto him; by which the sheriff aforesaid is commanded that by good [and lawful men of his bailiwick] he cause the aforesaid Charles Long to know that he be before the Lord the King from the day of Easter in five weeks, wheresoever [he shall then be in England,] to hear the record and process aforesaid, if [it shall have happened that in the same any error shall have intervened;] and further [to do and receive what the court of the Lord the King shall consider in this behalf.] The same day is given to the aforesaid William Burton. At which day before the Lord the King,Sheriff’s return Scire feci. at Westminster, comes the aforesaid William Burton, by his attorney aforesaid; and the sheriff returns, that by virtue of the writ aforesaid to him directed he had caused the said Charles Long to know that he be before the Lord the King at the time aforesaid in the said writ contained, by John Den and Richard Fen, good, &c., as by the same writ was commanded him; which said Charles Long, according to the warning given him in this behalf, here cometh by Thomas Webb, his attorney.Error as signed afresh.Whereupon the said William saith, that in the record and process aforesaid, and also in the giving of the judgment aforesaid, it is manifestly erred, alleging the error aforesaid by him in the form aforesaid alleged, and prays that the judgment aforesaid for the error aforesaid, and others, in the record and process aforesaid being may be reversed, annulled, and entirely for nothing esteemed, and that the said Charles *[*XXVI. may rejoin to the errors aforesaid, and that the court of the said Lord the King here may proceed to the examination as well of the record and process aforesaid as of the matter aforesaid above for error assigned.Rejoinder In nullo est erratum.And the said Charles saith, that neither in the record and process aforesaid, nor in the giving of the judgment aforesaid, in any thing is there erred; and he prays in like manner that the court of the said Lord the King here may proceed to the examination as well of the record and process aforesaid as of the matters aforesaid above for error assigned.Continuance.And because the court of the Lord the King here is not yet advised what judgment to give of and upon the premises, a day is thereof given to the parties aforesaid until the morrow of the Holy Trinity, before the Lord the King, wheresoever he shall then be in England, to hear their judgment of and upon the premises, for that the court of the Lord the King here is not yet advised thereof. At which day before the Lord the King, at Westminster,Opinion of the court. come the parties aforesaid by their attorneys aforesaid. Whereupon, as well the record and process aforesaid, and the judgment thereupon given, as the matters aforesaid by the said William above for error assigned, being seen, and by the court of the Lord the King here being fully understood, and mature deliberation being thereupon had, for that it appears to the court of the Lord the King here, that in the record and process aforesaid, and also in the giving of the judgment aforesaid,Judgment of the Common Pleas reversed. Judgment for the plaintiff. it is manifestly erred, therefore it is considered that the judgment aforesaid, for the error aforesaid, and others, in the record and process aforesaid, be reversed, annulled, and entirely for nothing esteemed; and that the aforesaid William recover against the aforesaid Charles his debt aforesaid, and also fifty pounds for his damages which he hath sustained,Costs. as well on occasion of the detention of the said debt, as for his costs and charges unto which he hath been put about his suit in this behalf,Defendant amerced. to the said William with his consent by the court of the Lord the King here adjudged. And the said Charles in mercy.

Sect. 7.

Process of Execution.

George the Second, by the grace of God,Writ of capias ad satisfaciendum. of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. We command you that you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, and him safely keep, so that you may have his body before us in three weeks from the day of the Holy Trinity, wheresoever we shall then be in England, to satisfy William Burton for two hundred pounds debt, which the said William Burton hath lately recovered against him in our court before us, and also fifty pounds, which were *[*xxviiadjudged in our said court before us to the said William Burton for his damages which he hath sustained, as well by occasion of the detention of the said debt as for his costs and charges to which he hath been put about his suit in this behalf, whereof the said Charles Long is convicted, as it appears to us of record; and have you there then this writ. Witness Sir Thomas Denison,5 Knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign.

Sheriff’s return. [Editor: illegible character] corpus. By virtue of this writ to me directed, I have taken the body of the within-named Charles Long, which I have ready before the Lord the King at Westminster, at the day within written, as within it is commanded me.

Writ of fieri facias..George the Second, by the grace of God, of Great Britain, France, and Ireland King, Defender of the Faith, and so forth, to the sheriff of Oxfordshire, greeting. We command you that of the goods and chattels within your bailiwick of Charles Long, late of Burford, gentleman, you cause to be made two hundred pounds debt, which William Burton lately in our court before us at Westminster hath recovered against him, and also fifty pounds, which were adjudged in our court before us to the said William for his damages which he hath sustained, as well by occasion of the detention of his said debt as for his costs and charges to which he hath been put about his suit in this behalf, whereof the said Charles Long is convicted, as it appears to us of record; and have that money before us in three weeks from the day of the Holy Trinity, wheresoever we shall then be in England, to render to the said William of his debt and damages aforesaid; and have there then this writ. Witness Sir Thomas Denison, Knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign.

Sheriff’s return. [Editor: illegible character] feci. By virtue of this writ to me directed, I have caused to be made of the goods and chattels of the within-written Charles Long two hundred and fifty pounds, which I have ready before the Lord the King at Westminster, at the day within written, as it is within commanded me.

BOOK THE FOURTH.

Of Public Wrongs.

[1 ] As to battel, see page 337, n. 7.

[2 ] N.B.—The clauses between hooks in this and the sul sequent numbers of the Appendix are usually no otherwise expressed in the records than by an “&c.”

[3 ] Now omitted. See page 398.

[4 ] Note, that sections 3 and 4 are the usual method of process to compel an appearance in the courts of King’s Bench and Exchequer, in which the practice of those courts does principally differ from that of the court of Common Pleas, the subsequent stages of proceeding being nearly alike in them all.

[5 ] The senior puisné justice, there being no chief-justice that term.