hundred pounds, and you John Rose and Peter Hamond do severally No. III. acknowledge to owe unto the same person the sum of two hundred pounds a piece, to be levied upon your several goods and chattels, lands of bail, before and tenements, UPON CONDITION that, if the defendant be condemned in the commisthe action, he shall pay the condemnation, or render himself a prisoner sioner. 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, On a Testatum Capias from Oxfordshire against Charles Long, Bail piece. to wit. I late of Burford in the county of Oxford, Gentleman, returnable on the morrow of the Holy Trinity, at the suit of William Burton, of a plea of debt of two hundred pounds: The ball are, John Rose, of Witney, in the county of Oxford, Esquire,

BAIL
Peter Hamond of Bix, in the said county, yeoman.
Ricera Ride Pleten datorney}
for the defendant,

The party himself in 4001.

Each of the bail in 2001. 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. *Sect. 6. The Record, as removed by Writ of Error. [ *xxi ] The Lord the King hath given in charge to his trusty and beloved Writ of Sir John Willes, Kuight, his writ closed in these words:-GEORGE error 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 fall 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; ihat 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 twentyninth year of our reign.

The record and process whereof in the said writ mention above is Chief jusmade, follow in these words to wit:Pleas at Westminster before Sir John Willes, Knight, and his breth- The record.

ren, 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 Bri

tain, France, and Ireland King, Defender of the Faith, &c. Oron, CHARLES Long, late of Burford in the county aforesaid, Gen- Writ. to wil.} tleman, was summoned to answer William Burton, of YarnVOL. II.

49

tice's return. a bond.

curia.

Defence.

No. III. ton in the said county, Gentleman, of a plea that he render unto him

two hundred pounds, which be owes him and unjustly detains, (as he Declaration, saith.) AND WHEREUPON the said William, by Thomas Gough, his ator count, on torney, complains, that whereas on the first day of December, in the

year of our Lord'*one thousand seven hundred and fifty-four, at Ban[ *xxii] bury in this county, the said Charles by his writing obligatory did ac

· knowledge 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 iherelo
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 doch still
refuse to render the same; wherefore he saith that he is injured, and

hath damage to the value of ten pounds: and thereupon he brings Profert in

suit, (and good proof.) And he brings here into Court the writing
obligatory aforesaid; which testifies the debt aforesaid in form afore-
said; the date whereof is the day and year before mentioned. AND
the aforesaid Charles, by Richard Price his attorney, comes and defends
the force and injury when (and where it shall behove him,) and craves

oyer of the said writing obligatory, and it is read unto him in the form
Oyer prayed aforesaid :) he likewise craves oyer of the condition of the said writing,
of the bond and it is read unto him in these words :—"The condition of this obli.
and condi-
tion, viz. to

gation is such, that if the above bounden Charles Long, his heirs, experform an

ecutors, and administrators, and every of them, shall and do from time award. 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 ihe above-named William Burton, to arbitrate,
award, order, rule, judge, and determine, of all and all manner of ac-
tions, 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 de
pending, by and between the said parties, for any matter, cause, or
ihing, 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." Imparlance. Which being read and heard, the said Charles prays leave to imparl

therein here until the octave of the Holy Trinity; and it is granted Continuance. unto him. The same day is given to the said William Burton, bere,

&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 [ *xxiii] their attorneys aforesaid: and hereupon the said William *prays that Plea; No the said Charles may answer to his writ 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 ac-
tion against him; because be saith, that the said David Stiles and
Henry Bacon, the arbitrators beforenamed 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 afore-
said above mentioned, according to the form and effect of the said con-
dition: and this he is ready to verify. Wherefore he prays judgment,

whether the said William ought to have or maintain his said action Replication,

thereof against him (and that he may go thereof without a day.) AND setting forth

such award.

Richard Morris, of Wytham, in the county of Berks, the said arbitra- No. III. tors 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 forth with 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 Protestando. Charles hath not stood io, obeyed, observed, fulfilled, or kept any part of the said award, which by him the said Charles ought to have been stood to, 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, &c. And the aforesaid Charles saith, that the plea afore- Demurrer., said, 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 law for the said William to have or maintain his [*xxiv] 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 Causes of in that case made and provided, 'shows to the court here the causes of demurer. demurrer following: to wit, that it doth not appear, 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, insufficient, and wants form. And the aforesaid William saith, that the plea Joinder in aforesaid by him the said William in manner and form aforesaid above demurrer. in his replication pleaded, and the matter in the same contained, are good and sufficieni 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 debi, to be adjudged unto him, &c. AND BECAUSE the justices here will advise themselves of and upon the Continuances 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 attornies; 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, by their said attornies. Wherefore, the record and opinion of matters aforesaid having been seen, and by the justices here fully un- the court. derstood, and all and singular the premises being examined, and mature deliberation being had thereupon ; for that it seems to the said Replication justices here, that the said plea of the said William Burton before in insufficient. his replication pleaded, and the matter therein contained, are not suffi

for the dofendant. Querens ni

per breve. Amercement Costs.

Writ of

errors.

No. III. cient in law, to have and maintain the action of the aforesaid William

against the aforesaid Charles; THEREFORE IT IS CONSIDERED, that the [ *xxv ]

aforesaid William *lake nothing by his writ aforesaid, but that he and Judgment

his pledges of prosecuting, to wit, John Doe and Richard Roe, be in mercy for his false complaint; and that the aforesaid Charles go there

of without a day, &c. AND IT IS FARTHER CONSIDERED, that the aforesaid hil capiat

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 Execution. and provided : and that the aforesaid Charles may have execution

thereof, &c. General er

AFTERWARDS, to wit, on Wednesday next after fifteen days of Easter ror assigned in this same term before the Lord the King, at Westminster, comes

the aforesaid William Burton, by Peter Manwaring, his attorney, and saith, that in the record and process aforesaid, and also in the giving of the judgment in the plaini aforesaid, it is manifestly erred in this; to wit, that the judgmeni 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. And the said William prays the writ of the said Lord the Scire facias, 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,] io hear the record and process aforesaid, if it shall have happened that in the same any error shall have intervened ;) and farther (to do and receive what

the court of the Lord the King shall consider in this behalf.] The Sheriff's re

same day is given to the aforesaid William Burton. AT WHICH DAY tum ; Scire

before the Lord the King, at Westminster, comes the aforesaid Wilfeci.

liam Burton, by his attorney aforesaid ; and the sheriff returns, that by
virtue of the writ aforesaid to him directed, he had caused ihe 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 Error as

cometh by Thomas Webb, his attorney. WHEREUPON the said William signed saith, that in the record and process aforesaid, and also in the giving of afresh. the judgment aforesaid, it is manifestly erred, alleging the error asore:

said 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 [ *xxvi] esteemed, and that the said Charles *may rejoin to the errors aforesaid,

and that the court of the said Lord the King here may proceed to the Rejoinder; examination as well of the record and process aforesaid, as of the mat

ter aforesaid above for error assigned. 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 pro

ceed to the examination as well of the record and process aforesaid, as Continuance. of the matters aforesaid above for error assigned. 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 yei advised thereof. At which day before the Lord the King,

at Westminster, come the parties aforesaid by their attornies aforesaid: Opinion of

WHEREUPON, as well the record and process aforesaid, and the judgtho court.

ment 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

In nullo est erratum.

here, that in the record and process aforesaid, and also in the giving No. III. of the judgment aforesaid, it is manifestly erred, THEREFORE IT IS CONSIDERED, that the judgment aforesaid, for the error aforesaid, and Judgment of others, in the record and process aforesaid, be reversed, annulled, and the Common

Pleas reentirely for nothing esteemed; and that the aforesaid William recover against the aforesaid Charles his debt aforesaid, and also fifty pounds Judgment for his damages which he hath sustained, as well on occasion of the for the detention of the said debt, as for his costs and charges unto which he plaintiff

. hath been put about his suit in this behalf, to the said William with Costs. his consent by the court of the Lord the King here adjudged. And Defendant the said Charles in mercy.

versed.

amerced.

dum.

Sect. 7. Process of Execution. George the Second, by the grace of God, of Great Britain, France, Writ of capias and Ireland King, Defender of the Faith, and so forth, to the Sheriff of ad satisfacienOxfordshire 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 lebt, which the said William Burton hath lately recovered against him in our court before us, and also fifty pounds, which were *adjudged in [*xxvü ] 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,t Knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign.

By virtue of this writ to me directed, I have taken the body of the Sheriff's rowithin named Charles Long; which I have ready before the Lord the turn; Cepi King at Westminster, at the day within written, as within it is com

Corpus. manded me.

George the Second, by the grace of God, of Great Britain, France, Writ of Fieri and Ireland King, Defender of the Faith, and so forth, to the Sheriff of facias. 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, al Westminster, the nineteenth day of June, in the twenty-ninth year of our reign.

By virtue of this writ to me directed, I have caused to be made of the Sheriff's regoods and chattels of the within written Charles Long, two hundred turn; Fieri

feci. 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.

+ The senior puisnd justice; there being no chief justice that term.