curia.

Defence.

No III. be thereto required; nevertheless the faid Charles, (although often required) hath not paid to the faid William the faid fum of two hundred pounds, nor any part thereof, but hitherto altogether hath refused, and doth ftill refufe, to render the fame; wherefore he faith that he is injured, and hath damage to the value of ten pounds: and thereupon he brings fuit, [and good Profert in proof.] and he brings here into court the writing obligatory aforefaid; which teftifies the debt aforefaid in form aforefaid; the date whereof is the day and year before-mentioned. And the aforefaid 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 faid writing obligatory, and it is read Oyer prayed unto him [in the form aforefaid]: he likewife craves oyer of the of the bond, condition of the faid writing, and it is read unto him in these words: "The condition of this obligation is fuch, that if the "above bounden Charles Long, his heirs, executors, and ad"ministrators, and every of them, fhall and do from time to "time, and at all times hereafter, well and truly ftand to, obey, "obferve, fulfil, and keep, the award, arbitrament, order, "rule, judgment, final end, and determination, of David Stiles, "of Woodstock in the faid county, clerk, and Henry Bacon, "of Woodstock, aforefaid, gentleman, (arbitrators indifferently " nominated and chosen by and between the faid Charles Long "and the abovenamed William Burton, to arbitrate, award, "order, rule, judge, and determine, of all and all manner of “actions, cause or causes of action, fuits, plaints, debts, duties,

and condi

tion, viz. to perform en award.

reckonings, accounts, controverfies, trefpaffes, and demands "whatsoever had, moved, or depending, or which might have "been had, moved, or depending, by and between the faid par"ties, for any matter, caufe, or thing, from the beginning of "the world until the day of the date hereof,) which the faid "arbitrators shall make and publifh, of or in the premises, in "writing under their hands and feals, or otherwise by word of "mouth, in the prefence of two credible witneffes, on or before "the first day of January next enfuing 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 Imparlance. heard, the faid Charles prays leave to imparl therein here until the octave of the holy Trinity; and it is granted unto him. The fame day is given to the faid William Burton here, &c. At which day, to wit, on the octave of the holy Trinity, here

Continuance.

No fuch

an award.

come as well the faid William Burton as the faid Charles Long, No III. by their attorneys aforefaid: and hereupon the faid William prays that the faid Charles may anfwer to his writ and count aforefaid. And the aforefaid Charles defends the force and in- Plea; jury, when, &c. and faith, that the faid William ought not to award. have or maintain his faid action against him; because he faith, that the faid David Stiles and Henry Bacon, the arbitrators beforenamed in the faid condition, did not make any fuch award, arbitrament, order, rule, judgment, final end, or determination, of or in the premifes above specified in the faid condition, on or before the first day of January, in the condition aforefaid above mentioned, according to the form and effect of the said condi tion and this he is ready to verify. Wherefore he prays judg ment, whether the said William ought to have or maintain his faid action thereof againft him [and that he may go thereof without a day.] and the aforefaid William faith, that, for any Replication, thing above alleged by the faid Charles in pleadings, he ought fetting forth not to be precluded from having his faid action thereof against him; because he faith, that after the making of the faid writing obligatory, and before the said first day of January, to wit, on the twenty-fixth day of December, in the year aforefaid, at Banbury aforefaid, in the prefence of two credible witnesses, namely, John Dew of Chalbury, in the county aforefaid, and Richard Morris of Wytham, in the county of Berks, the faid arbitrators undertook the charge of the award, arbitrament, or. der, rule, judgment, final end, and determination aforefaid, of and in the premises fpecified in the condition aforefaid; 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 faid Charles Long fhould forthwith pay to the faid William Burton the fum of feventy-five pounds, and that thereupon all differences between them at the time of the making the faid writing obligatory fhould finally ceafe and determine. And the faid William further faith, that although he afterwards, to wit on the fixth day of January, in the year of our Lord one thousand seven hundred and fifty-five at Banbury aforefaid, requefted the faid Charles to "pay to him the faid William the faid feventy-five pounds, yet (by proteftation that the faid Charles hath not flood Proteftandos to, obeyed, obferved, fulfilled, or kept any part of the faid award, which by him the faid Charles ought to have been flood

M m 2

to,

N III. to, obeyed, obferved, fulfilled, and kept) for further plea therein he faith, that the faid Charles the faid feventy-five pounds to the faid William hath not hitherto paid: and this he is ready to verify. Wherefore he prays judgment, and his debt aforefaid, together with his damages occafioned by the detention of the Demurrer. faid debt, to be adjudged unto him, &c. and the aforefaid Charles faith, that the plea aforefaid, by him the faid William in manner and form aforefaid above in his replication pleaded, and the matter in the fame contained, are in no wife fufficient in law for the faid William to have or maintain his action aforefaid thereupon against him the faid Charles; to which the faid Charles hath no neceffity, neither is he obliged by the law of the land, in any manner to anfwer: and this he is ready to verify. Wherefore, for want of a fufficient replication in this behalf, the faid Charles, as aforefaid, prays judgment, and that the aforefaid William may be precluded from having his action aforefaid thereCaufes of upon against him, &c. And the faid Charles, according to the demurier. form of the ftatute in that cafe made and provided, shews to the court here the caufes of demurrer following; to wit, that it doth not appear, by the replication aforefaid, that the faid arbitrators made the fame award in the prefence of two credible witnesses on or before the faid first day of January, as they ought to have done, according to the form and effect of the condition aforefaid; and that the replication aforefaid is uncertain, infufficient, Joinder in and wants form, and the aforefaid William faith, that the plea

demurrer.

Continu ances.

aforefaid by him the faid William in manner and form aforefaid above in his replication pleaded, and the matter in the fame contained, are good and fufficient in law for the faid William to have and maintain the faid action of him the said William thereupon against the said Charles; which faid plea, and the matter therein contained, the faid William is ready to verify and prove as the court fhall award: and because the aforefaid Charles hath not answered to that plea, nor hath he hitherto in any manner demed the fame, the faid William as before prays judgment, and his debt aforefaid, together with his damages occafioned by the detention of that debt, to be adjudged unto him, &c. and because the juftices here will advife themfelves of and the premifes before they give judgment thereupon, a day is thereupon given to the parties aforefaid here, until the morrow of All Souls, to hear their judgment thereupon, for that the faid juftices here are not yet advifed, thereof. At which day here

upon

come

come as well the faid Charles as the faid William, by their said N° III. attorneys; and because the faid juftices here will farther advife themselves of and upon the premises before they give judgment thereupon, a day is farther given to the parties aforefaid here until the octave of faint Hilary, to hear their judgment thereupon, for that the faid juftices here are not yet advised thereof. At which day here come as well the faid William Burton as the faid Charles Long, by their faid attorneys.

Wherefore, the record Opinion of

the court.

capiat per

and matters aforefaid having been seen, and by the justices here fully understood, and all and fingular the premifes being examined, and mature deliberation being had thereupon; for that Replication it seems to the said juftices here, that the faid plea of the faid infufficient. Judgment William Burton before in his replication pleaded, and the matter for the detherein contained, are not fufficient in law, to have and main- fendant. Querens nibil tain the action of the aforefaid William against the aforefaid Charles: therefore it is confidered, that the aforefaid William breve. take nothing by his writ aforefaid, but that he and his pledges of profecuting, to wit, John Doe and Richard Roe, be in mercy for his falfe complaint; and that the aforefaid Charles go thereof without a day, &c. And it is farther confidered, that the afore- Amercefaid Charles do recover against the aforefaid William eleven pounds and feven fhillings, for his cofts and charges by him about his defence in this behalf fuftained, adjudged by the court here to the faid Charles with his confent, according to the form of the ftatute in that cafe made and provided: and that the aforefaid Charles Execution. may have execution thereof, &c.

ment.

Cofts.

afterwards, to wit, on Wednesday next after fifteen days General Erof Eafter in this fame term, before the lord the king, at Weft- ror affigned. minster, comes the aforefaid William Burton, by Peter Manwaring his attorney, and faith, that in the record and process aforefaid, and alfo in the giving of the judgment in the plaint aforefaid, it is manifeftly erred in this; to wit, that the judgment aforefaid was given in form aforefaid for the faid Charles Long against the aforefaid William Burton, whereby the law of the land judgment would have been given for the faid William Burton against the faid Charles Long: and this he is ready to verify. And the faid William prays the writ of the faid lord Writ of Scithe king, to warn the faid Charles Long to be before the faid re facias, to lord the king, to hear the record and procefs aforefaid: and it is granted unto him: by which the fheriff aforefaid is commanded

that

hear errors.

ed afresh.

No III. that by good [and lawful men of his bailiwick] he caufe the aforefaid Charles Long to know, that he be before the lord the king from the day of Eafter in five weeks, wherefoever [he fhall then be in England,] to hear the record and process aforefaid, if [it, fhall have happened that in the fame any error fhall have intervened ;] and farther [to do and receive what the court of the lord the king fhall confider in this behalf.] The fame day Sheriff's re- is given to the aforefaid William Burton. At which day before turn; Scire the lord the king, at Westminster, comes the aforefaid William fecin Burton, by his attorney aforefaid: and the fheriff returns, that by virtue of the writ aforefaid to him directed he had caused the faid Charles Long to know, that he be before the lord the king at the time aforefaid in the faid writ contained, by John Den and Richard Fen, good, c; as by the fame writ was commanded him: which faid Charles Long, according to the warning given him in this behalf, here cometh by Thomas Error affign- Webb his attorney. Whereupon the faid William faith, that in the record and procefs aforefaid, and alfo in the giving of the judgment aforefaid, it is manifeftly erred, alleging the error aforefaid by him in the form aforefaid alleged, and prays, that the judgment aforefaid for the error aforefaid, and others, in the record and procefs aforefaid being, may be reverfed, annulled, and entirely for nothing efteemed, and that the faid Charles may rejoin to the errors aforefaid, and that the court of the faid lord the king here may proceed to the examination as well of the record and process aforefaid, as of the matter aforefaid above Rejoinder; for error affigned. And the faid Charles faith, that neither in In nullo eft the record and process aforefaid, nor in the giving of the judg ment aforesaid, in any thing is there erred; and he prays in like manner that the court of the faid lord the king here may proceed to the examination as well of the record and procefs aforefaid, as of the matters aforefaid above for error affigned. Ind 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 aforefaid until the morrow of the holy Trinity, before the lord the king, wherefoever he fhall 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 Westmin fter, come the parties aforefaid by their attorneys aforefaid; Whereupon

erratum.

Continu

ance.

1