No. III Sheriff's return. custoin of our realm of England, he should be outlawed if he did not ap pear; 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 twentyeighth year of our reign. By virtue of this writ to me directed, at my county court held at Oxford, Proclamari feci. 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. Capias utlagatum. 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 Berk. shire, 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 *xviii.] bailiwick; and him safely keep, so that you may 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. Sheriff's return. By virtue of this writ to me directed, I have taken the body of the withinnamed 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. Bill of Millesex Middlesex,} THE SHERIFF is commanded that he take Charles Long, late for trespass. 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 Ac etiam in debt. Easter, 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 hun dred 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. 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, 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. No. III if he might be found in his bailiwick, and him safely keep, so that he night [*xix. By virtue of this writ to me directed, I have taken the body of the within- Sheriff's return. named Charles Long, which I have ready at the day and place within con- Cepi corpus. tained, 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, I have taken the body of the within- Sheriff's return. named Charles Long, which I have ready before the barons within written, Cepi corpus. 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. sheriff. KNOW ALL MEN, by these presents, that we, Charles Long, of Burford, in the Bail-bond to 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 *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. Sealed and delivered, being first duly stamped, in the presence of [*xx. CHARLES LONG. (L.S.) PETER HAMOND. (L.S.) HENRY SHAW. EDWARD THOMLINSON. (L.S.) TIMOTHY GRIFFITH. No. III. bail before the commissioner. You Charles Long do acknowledge to owe unto the plaintiff four hundred pounds, and you John Rose and Peter Hamond do severally acknowledge Recognizance of 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, 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. Bail-piece. *xx1.] Writ of error. Chief-justice's re turn. The record. Writ. Berks, to wit. } Trinity Term, 28 Geo. II. 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, 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 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, 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, gentleto wit. man, was summoned to answer William Burton, of Yarnton in the said county, gentleman, of a plea that he render unto him two hundred Declaration, or pounds, which he owes him and unjustly detains, [as he saith.] AND ount, on a bond. WHEREUPON the said William, by Thomas Gough, his attorney, complains, *xxii.] that whereas on the first day of December, in the year of our Lord *one No. III. dition, viz., to 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: and thereupon he brings suit, [and good proof] AND he brings here into court the writing Profert in curra. obligatory aforesaid; which testifies the debt aforesaid in form aforesaid; the date whereof is the day and year before mentioned. AND the afore- Defence. said 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, and it is Oyer prayed of read unto him in these words: The condition of this obligation is such, the bond and conthat if the above-bounden Charles Long, his heirs, executors, and adminis- perform an trators and every of them, shall and do from time to time, and at all award. 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, the said Charles prays leave to imparl therein Imparlance. 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, Continuance. 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 *prays that the said Charles may answer to his writ [*xxiii. and count aforesaid. And the aforesaid Charles defends the force and in- Plea: No such award. jury, 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.] AND the aforesaid William saith that for any Replication, se thing above alleged by the said Charles in pleadings he ought not to be pre- award. cluded 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 seventyfive pounds, and that thereupon all differences between them at the time of the making the said writing obligatory should finally cease and determine. An the said William further saith, that although he afterwards, to ting forth an No. III. Protestando. Demurrer. rer. murrer. 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, 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 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 *xxiv.] 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 aforesaid William may be precluded from having his action aforesaid thereupon against him, &c. AND the said Charles, acCauses of demur- cording 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, 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 unJoinder in de certain, 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, 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 judg ment 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 matters aforesaid having been seen, and by the justices here fully understood, and all and singular the premises being examined, and mature deliberation being Replication in had thereupon; 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 *take nothing by his writ afore said, but that he and his pledges of prosecuting, to wit, John Doe and Querens nihil ca- 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, 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. Continuances. Opinion of the court sufficient. *xxv.] Judgment for the defendant. piat per breve. Amercement. Costs. xecution. . General error assigned. 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, 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 |