payment well and truly to be made, we bind ourselves and each of us by himself 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.. No. III. [*xx] The condition of this obligation is such, that if the above bounden Charles Long Recognizance. 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. Sealed and delivered, being first duly stamped, in the presence of HENRY SHAW, TIMOTHY GRIFFITH. CHARLES LONG. [L. S.] You Charles Long do acknowledge to owe unto the plaintiff four hundred pounds, and you John Rose and Peter Hamond do severally 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 and tenements, upon condition that, if the of bail before defendant be condemned in the action, he shall pay the condemnation, or render the commis 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. sioner. Berks, ON a Testatum Capias from Oxfordshire against Charles Long, late of Bail piece. to wit. 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 bail are John Rose, of Witney, in the county of Oxford, esquire, Peter Hamond, of Bix, in the said county, yeoman. *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, 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 Lehalf, 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, wo 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. [*xxi] Writ of error Writ. Declaration, or count, ou a bond. [*xxii] Defence. Oyer prayed of tion, viz.: to perform an Award. THE record and process whereof in the said writ mention above is made, follow in these words, to wit: 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 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, CHARLES LONG, late of Burford, in the county aforesaid, gentleman, to wit. was summoned to answer William Burton, of Yarnton, in the said county, gentleman, of a plea that he render unto him two hundred pounds, 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 *one thousand seven hundred 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 Profert in curia, saith that he is injured, and hath damage to the value of ten pounds: 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. 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 bond and condi. oyer of the condition of the said writing, 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 deter mine, of all and all manner of actions, cause or causes of action, suits, plaints, debts, duties, reckonings, accounts, controversies, trespasses and demands what soever 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, 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, &c. At which day, to wit, on the octave of the Holy Trinity, here comes as well the said William Burton as the said Charles Long, by their attorneys aforesaid: and hereupon the said William *prays that the said Charles may answer to his writ and count aforesaid. And the said 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 Replication set thereof against him [and that he may go thereof without a day]. 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 Wyndham, in the county of Berks, the said arbitrators undertook the charge of the award, arbitrament, order, rule, judgment, final Imparlance. Continuance. [xxiii] Plea; no such award. ting forth an award. No. IIL [*xxiv] 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 him the said Charles to pay to him the said William the said seventy-five pounds, yet (by protestation that the said Charles hath not Protestando. 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, 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 Demurrer. 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 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 said William may be precluded from having his action aforesaid thereupon against him, &c. And the said Charles, according to the form of the Causes of statute in that case made and provided, shows to the court here the cause of demurrer lemurrer 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 aforesald is uncertain, insufficient and wants form. And the afore- Joinder in de said William saith, that the plea aforesaid by him the said William in manner murrer. 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 bath 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, to be adjudged unto him, &c. And because the justices here will advise them- Continuances. selves 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 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 adviso 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 St. 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 attorneys. Wherefore, the record and Opinion of the matters aforesaid having been seen, and by the justices here fully understood, court. and all and singular the premises being examined, and mature deliberation being had thereupon; for that it seems to the said justices here, that the said Replication plea of the said William Burton before in his replication pleaded, and the matter insufficient. 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 "take nothing by his writ aforesaid, but [*xxv] that he and his pledges of prosecuting, to wit, John Doe and Richard Roe, be Judgment in mercy for his false complaint; and that the aforesaid Charles go thereof for the dewithout a day, &c. And it is farther considered. that the aforesaid Charles fendant. do recover against the aforesaid William eleven pounds and seven shillings, for hit capiat his costs and charges by him about his defence in this behalf sustained, adjudged per breve. by the court here to the said Charles with his consent, according to the form of Costs. the statute in that case made and provided: and that the aforesaid Charles may Execution. have execution thereof, &c. Querens ni Amercement. Afterwards to wit, on Wednesday next after fifteen days of Easter in this General error same term before the lord the king, at Westminster, comes the aforesaid assigned, 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 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 he 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 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 man 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 farther [to do and receive what the court of the lord the king shall consider in his behalf]. The same day is given to the aforesaid William Burton. At which day before the lord the king, 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. 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 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. 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. 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 therefore 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, come the parties aforesaid by the 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, 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, as well on occasion of the detention of the said debt, as for his costs and charges unto which he hath been put about this suit in this behalf, to the said William with his consent by the court of the lord the king here adjudged. And the said Charles in mercy. SCET. 7. PROCESS OF Execution. 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 you take Charles Long, late of Burford, gentleman, if he may be found in your bailiwick, aud 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 adjudged 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,+ knight, at Westminster, the nineteenth day of June, in the twenty-ninth year of our reign. ↑ The senior puisne justice; there being no chief justice that term. By virtue of this writ to me directed, I have taken the body of the within named No. III. Charles Long; which I have ready before the lord the king at Westminster, at the day within written, as within it is commanded me. Sheriff's return; Cepi GEORGE the Second, by the grace of God, of Great Britain, France and Ireland corpus. king, defender of the faith, and so forth, to the sheriff of Oxfordshire, greeting. Writ of Fiert We command you that of the goods and chattels within your bailiwick of facias. 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. By virtue of this writ to me directed, I have caused to be made of the goods and Sheriff's re turn; Fieri chattels of the within written Charles Long, two hundred and fifty pounds; which feci. I have ready before the lord the king at Westminster, at the day within written, as it is within commanded me. 297 |