AN EXACT ACCOUNT OF THE TRIAL BETWEEN Sr. WILLIAM PRITCHARD Kt. And Alderman of the City of London Plaintiff AND THOMAS PAPILLON Esq Defendant In an Action upon the Case At the Sessions of Nisi prius holden for the Court of King's Bench at the Guild-hall in the City of London on Thursday the 6th of November 1684. In Michaelmas Term in the 36th Year of the Reign of King Charles the Second Before Sir GEORGE JEFFERIES Kt. and Baronet then Lord Chief Justice of the said Court of King's Bench. To which is added The MATTER of FACT relating to ELECTION of SHERIFFS as it was printed in the Year 1682. LONDON Printed and sold by Richard Janeway in Queens-head-Court in Pater-Noster-Row MDCLXXXIX Pasche xxxvi to Car. Secundi Reg. London ss WIlhelmus Pritchard Miles nuper Major Civit. praedict quaerit de Thoma Papillon in Custod Marem c. pro eo videlicet quod cum duodecimo die Februaris Anno nostri Domini Caroli Secundi nunc Regis Angliae c. tricessimo quinto ipsem idem Wilhelmus Pritchard ac antea abinde pro separat menses ex tunc prox sequend extitit Major Civitat ' London praedict in Officium Majoratus illius debito modo elect praefect jurat ac secundum Consuetudinem Civitat London praedict a tempore cujus contrar memoria hominum non existit in eadem usitat approbat Officium suum Majoratus illius indies intendere debuit pro assiduam diligent ipsius Wilhelmus in regimine Civitat illius pro ipsum secundum debitum Officii sui praedict exequend performand ad honorem dignitat ad Officium illud spectant pertinen praedictus tamen Thomas existens unus de Commitat Civitat praedict sub regimine dicti Wilhelmi virtute Officii sui praedicti praemissor non ignarus sed machinans false ac malitiose invidens felici statui ipsius Wilhelmi in Officio suo praedict necnon ipsum Wilhelmum in executionem Officii illius minus juste inquietare disturbare praedicto duodecimo die Februarii Anno tricesimo quinto superdicto idem Thomas Papillon pro vexatione praefat Wilhelmo adhibend eodem Thoma ad tunc non habente aliquam legitimam vel probabilem Causam Actionis versus ipsum Wilhelmum false malitiose prosequunt fuit extra cur dicti Domini Reg. coram ipso Rege nunchit scilicet apud Westmon in Com. Middlesex adtunc adhuc tent ' existem quoddam Breve ipsius Dom. Reg. de alias Capias versus ipsum Wilhelmum per nomen Wilhelmi Pritchard Militis adtunc Coronator Civitat ' London praed direct ' per quod quidem Breve idem Dominus Rex nunc eidem tunc Coronatori praecepit quod capet ipsum Wilhelmum Pritchard si invent ' foret in Civitat ' London praed ea salvo custodiret ita quod herent Corpus ejus coram Domino Rege apud Westm die cur ' prox post quindenum Pasche ex tunc prox sequend ac respondend praefat ' Thomae Papillon pre nomen Thomae Papillon Armiger de placito trangres quod idem tunc Coronator haberet ibi tunc breve illud Et praedictus Thomas Papillon ex ulteriori nequitia malitia sua praecogitat ' versus ipsum Wilhelmum postea ante retorn ' Brevis praedicti scilicet vicesimo quarto die Aprilis Anno tricesimo superdicto apud London praed videlicet in Parochia Sanctae Mildredae Virginis in Pulletria in Warda de Cheap London praedicum Breve de alis Capias cuidem Johanni Brome Gent. adtunc Coronator Civit ' London praed existem deliberavit exequend ac adtunc ibidem apud Wilhelmum adtunc Major ' Civitat ' London praed ut praefert ' existem praetextu Brevis illius pro Corpus suum capi arrestari ac in Prisona sub Custod ejusdem tunc Coronator per spatium sex horarum ex tunc prox sequem detineri malitiose minus juste procuravit in vituperator ' derogation ' vilipendium praedici Wilhelmi Officii Majoratus ipsius Wilhelmus praed necnon ad damnum prejudicium gravamen ipsius Wilhelmi manifest ' ubi revera de facto praedictus Thomas Papillon praedico tempore captionis arrestionis detentionis ipsius Wilhelmus in Prisona sit ut praefert ' fact ' non habuit aliquam justam vel probabilem causam Actionis versus ipsum Wilhelmum in Premisis praed unde idem Wilhelmus dic ' quod ipse deteriorat ' est damnum habet ad valent ' decem mille librarum inde produc ' sertam c. Die Jovis 6º Novemb. Anno Dom. 1684. Mich. Ter. 36º Car. 2o. B. R. At the Session of Nisi prius for the City of London held at Guild-hall Pritchard versus Papillon London ss SIR William Pritchard late Lord Mayor of the City of London having in Easter Term last brought an Action upon the Case for falsely maliciously and without probable Cause procured him to be arrested and imprisoned in his Mayoralty against Thomas Papillon Esq The Defendant pleaded not Guilty and thereupon Issue being joyned it came this day to be tried before the Lord Chief Justice Jeffreys and the Jury sworn to try this Cause were these Bartholomew Ferryman Thomas Blackmore Thomas Symonds William Whatton John Green Thomas Amy Jospeh Baggs Daniel Chandler John Reynalds John Allen Joseph Caine and William Withers jun. Mr. Mundy May it please your Lordship and you Gentlemen of this Jury Sir William Pritchard Knight late Lord Mayor of the City of London is Plaintiff and Thomas Papillon Esq is the Defendant And this Gent. is in a special Action upon the Case wherein the Plaintiff does declare That whereas the 12th of Februaery in the 35th Year of this King and before and after for several Months then next ensuing he was Mayor of the City of London being duly elected and sworn into the Office of Mayoralty of the said City and according to the Custom of the said City time out of mind he ought daily to attend the said Office in the diligent Government of the said City according to the Duty of his said Office which he was to execute to the Honour and Dignity belonging thereunto That the Defendant Thomas Papillon being one of the Commonalty of the said City and under the Government of the Plaintiff by virtue of his Office aforesaid not being ignorant of the Premises but contriving and falsly and maliciously envying the happy Estate of the Plaintiff in his said Office as also unjustly to disturb the Plaintiff in the Execution of his said Office the said 12th day of February in the 35th Year aforesaid the Defendant for vexation to the Plaintiff not having any lawful or probable Cause of Action against the Plaintiff falsly and maliciously did prosecute the King 's Writ of alias Capias out of the Court of King's Bench against the
another And this never came to be a Question till the Business of the Poll between Sir Simon Lewis and Jenks came about which you have heard of Mr. Papillon himself when he was chosen Sheriff before and fined for it was chosen in this manner and no other Mr. Cornish he comes and gives Evidence that the Common-Serjeant was reckoned to be the Man that managed the Choice by Command and Direction of the Sheriffs And some of those Gentlemen that have been produced on the Defendant's side they say they have looked upon it as the Sheriffs Business But alas-a-day it belongs to neither of them they are but Officers to the Lord Mayor The Common-Serjeant's Business is but to put the Question into the Mouth of the Common-Cryer In so much that when I my self was Common-Serjeant as I used to pass by the Shops in London they used to cry there goes So many of you as would have It was as plain a Road of things that every Body knew it before these things untowardly have come to be imbrangled by our Factions and Divisions and the heat of some busie Fellows Here are a great many ancient Citizens that I see that know and so do you all Gentlemen that this is true So that all the Discourse of this Matter is but Flourish and Garniture and doth not affect this Case at all one way or other Another thing Gentlemen hath been mightily talked of and urged and insisted upon both by Plaintiff and Defendant and that is the Defendant's Right or not Right of Election to the Office of Sheriff and that the Majority was on his side say his Council On the other side say the Plaintiff's Council And for the setling that Right he brought his Action against the Plaintiff but it being determined upon the Conviction for the Riot There is no such thing Gentlemen as that it was therein determined That cannot be a Determination of any Right at all For tho' I may have a Right to an Office or any such thing yet I must pursue a legal Method to attain to that Right and not go irregular Ways to work As if I have a Right to come into your House because you have not paid me your Rent to make my thoughts and meaning intelligible to you by a familiar Instance which will thew what I intend I must not make a Riot and turn you by Violence out of Possession For I have a legal Course to come by my Right to wit by bringing an Action and evicting you But if any Man attempt to get a Right in an unjust manner and he be punished for it by an Indictment or Information that I say doth not determine the Question of Right one way or other To come then to the Issue that here you are to try the Point of this Action before us resolves it self into a narrow compass and is only this in short which you are to enquire of Whether or no the Plaintiff was arrested by the Defendant without probable Cause and maliciously Now matters of Malice are things that remain in a Man's Heart and it is impossible for me to discover whether another Man hath a Malice against me if I do not see it in his Actions Malice being a thing that is internal is not else discernable Therefore you must consider the Circumstances that do attend this Action of the Defendant and if so be they are malicious then you are to find for the Plaintiff But if they for the Defendant have offered to you any Circumstances that can prove or convince you that he had any probability of a Cause of Action and that not attended with a malicious Prosecution of that probable Cause then the Issue is with the Defendant This is the Right Question and the Law of this Action and the Fact to make it out one way or other is now in Judgment before you upon the Evidence that hath been given on both sides Now in point of Law I am to tell you and that you must observe That though I have a probable conjectural Cause of Action against another Man yet if to obtain my End in that I prosecute him maliciously with a design to ruine him or to put an Indignity upon him or the Character he bears in the Publick or put a hardship or difficulty upon him I mean hardship and difficulty in point of time when it is probable the Remedy may be had at another time and the same thing done with less injury and less trouble then an Action will lie against me for bringing my Action in such a manner though it be true that I had a conjectural cause of Action against him As in the Case that was here in this Court the other day of Mr. Swinnock against the Serjeant that came to him and told him in his Ear that he had an Action against him and this was upon the Exchange thereupon Mr. Swinnock brings his Action for this against this Man for whispering this in his Ear If he had proved any malicious intention to disgrace him no doubt the Action would have lien For though there might be a Cause of Action against Swinnock yet if that be maliciously pursued to get him arrested and held to bail where no bail is required by Law or with an intent to disgrace him upon the Exchange when it might have been done elsewhere or at another time this irregular malicious Proceeding will bear an Action The pursuing malicious ways to obtain a Right makes a Man obnoxious to the Action of the Party so prosecuted I desire to express my self by Words that may declare my meaning as plainly as can be And I hope I do so Then Gentlemen taking it thus as the Counsel for the Plaintiff say to shew that the Defendant had no probable Cause of Action against the Plaintiff they endeavour to answer what is alledged on the other side as their probable Cause And therefore that we must consider first what is said by the Defendant They tell you here was an Election for Sheriffs of London at Guild-Hall where those Persons that they have nominated were Candidates and put in nomination for that Office. And upon that nomination as say those three Witnesses we were the Persons that had the Majority of Voices and thereupon we apprehended our selves Chosen which gave us the right of Action So the Defendant say they sheweth some probability of a Cause of Action and if he have not pursued it with Malice but in a regular way the Probability of the Cause doth take off from the Malice that else the very bringing of an Action without Cause would imply in it self And they say true for I must repeat it again If I have prima facie a probable Cause and pursue it legally no Action will lie against me for it But then say they on the other side for the Plaintiff That is no probable Cause for you could from those Transactions have no such Apprehensions of a Right for that is not the
measure of a Right of Election or a Rule to guess who is elected by For there being no decision of the Election upon the holding up of the Hands and a Poll being demanded whereas the usual method is to have by the Lord Mayors Order and Direction the Poll taken by such as he shall appoint you went another way to work you go your ways and take Books to your selves and come not to the fair determination of the Question And they bring Mr. Town Clerk to prove You have heard what the Evidence is and you are Judges of it Now take it that this were in the Case of an Office of Profit as suppose it were a Question between me and John a Styles for the place of Bridge-master for the purpose and a Poll is demanded and granted if they that have no Authority shall go after the Court is adjourned by him that has Power and take a number of Names in the way of a Poll by themselves and upon that come and say I. S. has four and twenty hundred and I have but so many that sure is not any probable Cause nor a Right for you have gone here out of the known and usual method of such Matters and depend upon that which can give no foundation of Right at all This is the Answer that is given to that by the Council for the Plaintiff You may have fifty thousand Names for you after that rate and yet not be Elected nor have probable Cause of any such apprehension We all remember Sir Samuel Sterling's Case which was upon the denial of a Poll for a Place of Profit that is to say the Bridge-Master's Place But this is upon a wrong Poll. Suppose there had been a Poll granted as there was in this Case and upon that Poll thus managed Sir Dudley North and Mr. Box had had the majority but by a very few and there had been an Action brought in such a Case here was a probable Cause as good as in this Case as it now stands because some of them might happen not to have legal Suffrages yet the taking the Poll by Persons of their own heads after the Court was adjourned avoids all so that that would have signified nothing You are to consider of this Answer of theirs Then the great thing Gentlemen that you are to observe is this To bring an Action alone will scarce amount to a proof of Malice therefore Malice being in this Issue a great point of Fact you must weigh the Evidence whether the Circumstances do shew it that there was Malice in Mr. Papillon If the Circumstances are enough to amount to a proof of Malice you then are to find for the Plaintiff and you are the Judges what Damages it is fit to give him for that Injury He has laid Ten thousand pounds but you must do what you that are Judges of it think fit in it Come Gentlemen it is best to be plain and no Man needs to be thought wanting of an Apprehension what is the meaning of all these things It is commonly and universally known to all Mankind First That no Man ever did pursue such an Action as this is to be Sheriff till these unhappy Times wherein we are and wherein we have lost that Quiet and Felicity which I pray God we may be restored unto And though it is true a Man may lawfully sue for such an Office and it is no Offence yet it looks somewhat extraordinary and that a Man has a mind to do something unusual in the Place 't is for some strange purpose or other especially when a Man has Fined for the Office once before as we all know Mr. Papillon did Again It is as notoriously known That for several years last past the Government hath been beset And that which is a baser thing than ever was thought of or acted in the highest times of Villainy in these Kingdoms I mean those of the late Rebellion the very Methods of Justice have been corrupted and all to serve the main Design of subverting the Government Gentlemen This is so black a Wickedness that no honest Man that has any sense of Loyalty Religion or common Justice but must tremble at the very thoughts of it When we see such Fellows as are obnoxious to the Government known Dissenters from the Establish'd Worship and that never thought of conforming to the Government or the LÃ ws Civil or Ecclesiastical or complying with the Church but only to capacitate them to destroy it nay when Men that are taken notice of to be common Reproaches to the Government under which they live shall get into Office to make Ignoramus Juries and to enable People to commit and be guilty of all the Falsities and Basenesses that Humane Nature is capable of no Man living that has any Ingenuity or Goodness in him but must cry out against it When Men begin to take Oaths to sanctifie Villainy and enter into Clans and Clubs and Cabals to destroy the most Merciful of Kings and to disturb distract and overthrow the best of Governments What shall we say And all this you all of you Gentlemen know to be true Was it not more safe to commit Treason in the City than to sit upon a Bench of Justice to bring the Traitors to Judgment Was it not more safe to conspire the Death of the King and his Brother than to give the least Frown or Look of Displeasure against one of these snivelling Saints Did not we know that Men were sanctified to be Jury-men to enquire of Conspiracies against the King's Life and Government that before that time were never thought sit to be trusted with the common Discourses or Society of honest Men When Men were thought fittest for Offices of such high Trust according to their being thought capable of and well-intended to the over-throw of the Government Do not we all know this to be as true as that the Sun shines at Noon-day When Traitors at the Bar were in less danger of being convicted of their Treasons than the Judges were of their Lives Mr. Papillon knows all this to be true eminently When pack'd Juries were grown to that heighth that though seven or eight Witnesses came and swore positive down-right Treason the Traitor could not be by these Men so much as thought fit to be accused by an Indictment to that stupidity in Villainy were things brought by these Fellows Nay so far were the Proceedings in Courts of Justice tainted that in no common Action whatsoever that came here to be Tried but cropp'd Hair and a demure Look were the best signs of a good Evidence and the business of an Oath signified nothing provided the Party were to be prop'd up and the Faction to receive an advantage by it For God's sake Gentlemen let any Man but seriously consider and believe that there is a GOD in Heaven and a dreadful Day of Judgment when every one of us must answer for every Thought of our Hearts every Word of our
Have you done Gentlemen or will you call any more Witnesses Mr. At. Gen. We rest it here my Lord till we hear what they say to it L. Ch. Just Come then what have you to say that are for the Desendant Mr. Serj. Maynard May it please your Lordship and you Gentlemen of the Jury I am of Counsel in this Case with the Defendant Mr. Papillon I see Gentlemen it is a Cause of great Expectation and by that means they would make it greater by far than indeed it is in it self But I suppose you who are upon your Oaths to try this Issue will duly weigh and consider what it really is Gentlemen the Record tells you what it is an Action upon the Case wherein the Plaintiff declares that the Defendant did arrest him being then Lord Mayor without any probable Cause and out of Malice Now as to that Gentlemen I conceive and think I may appeal to my Lord Chief Justice in it for Direction in point of Law that my Lord Mayor if he do mistake in his Office and do not do that which belongs to him to do he is as much subject to the Process of Law and Actions as any private Person in the City of London If he does any Man an Injury or does that which is not right in his Office by which another Person is grieved he is liable to the Prosecution of any particular Subject the King has that is so grieved by him Then they alledge that this particular Action and Arrest thereupon was prosecuted and done out of Malice and without probable Cause Now what have they proved of that They prove the thing done that he was arrested at the Defendant's Suit and that he was kept in Custody six hours But if we can give you any account of a probable Cause for it that is sufficient to justify as from this Action Gentlemen the Question that you are to try is not Whether this Man or that Man were duly chosen into such an Office but whether there were any probable Cause for the Defendant to contest about the Choice And herein the Case will fall out to be thus There was a difference in the City of London as is very well known to every body about the Choice of Sheriffs for the City wherein the Defendant was one of the Competitors there were upon the Nomination and Election in the Hall a great many more Voices or Suffrages for one than for the other which was certified to the Court of Aldermen and Lord Mayor as is usual but some Contest being a Poll was demanded and granted and upon that Poll my Lord Mayor was pleased to declare the Election on one side against Mr. Papillon who yet was apprehended by the first Choice to be one that had most Suffrages But several Meetings there were and several Common-Halls assembled so that it was a contested matter and as I said there had been a Report made on the Defendant's behalf We insist not upon the Right of Election that has been otherwise determined But when he is put in Nomination by the Electors in the City and has many Suffrages and he conceives himself rightly chosen and they that are the Managers of the Election give such an account that in their Judgment he was chosen that surely was a probable Cause for him to proceed upon it And if there be but a probable Cause to bring this to a Question no doubt he might very well take the course the Defendant took Here is no Arrest without legal Process nay their own Witnesses say there was an offer to take an Appearance without putting it on so far as an Arrest If my Lord Mayor would have but given an Appearance there had been an end but he did not think fit to do that and so the Process of Law was executed upon him Then here is the Case in short A Man thinks himself rightly and duly chosen into an Office and has probable reason so to think for the Judges of the Election think so too and deliver that as their Opinion so that tho he is mistaken as the Event proves yet he is not alone in his Mistake nor without ground of his Apprehension then if it be under favour such a Man has no other Proceedings to take in the World for settling this matter but to appeal to your Lordship and that great Court where your Lordship sits to have a Writ to command the Mayor or other proper Officer to swear such a Man into the Office or shew good cause why he doth not If the Mayor upon the Receipt of the Writ thinks fit to obey it and swears the Man all is well If not he must make a Return of the Writ with the Cause why the Command of the Writ is not obeyed Now the Suggestion of the Writ is that he was duly chosen into such an Office and therefore he had a fair way to put this matter to an end if he would have returned he was chosen or not chosen there had been an end of the business which he ought under favour to have done in Obedience to the King 's Writ What then follows upon his not doing so the Party that is grieved hereby has no other course to take but to bring his Action against the Mayor for it This course the Defendant took by taking out a Writ against the Plaintiff and what was the Effect of that Writ It is indeed charged here by the Counsel on the other side that there was a Design of a discontented Party in it and I know not what and a great deal of stir made that a Coroner of the City of London should arrest my Lord Mayor It may be it was not so reverently done but yet if he thought he had good Cause of Action against him he might do it lawfully Doth this prove to you that this was maliciously and unreasonably done Malice must be to the Person Zeal and Earnestness to have Right done to a Man's self or another in a legal Course of Justice is not Malice nor will make the Prosecution of the Action unreasonable and groundless Have they proved to you Gentlemen any particular Discontent and Malice that was between the Plaintiff and Defendant No truly I think by all the Proof that has been offered the quite contrary does appear The Defendant took out a Mandamus directed to the Plaintiff which was not duly returned What then doth he do next Doth he most violently arrest him that with Submission he might do and no Offence in Law No but he doth not do it but only desired from time to time as we shall prove anon that he would but give an Appearance that would have put a Conclusion to this Dispute There is no Appearance given whereupon he is arrested and detained in Custody six hours If a Man be once in the Officers Hands taken upon legal Process how long soever the Officer keeps him is not at all to be laid upon the Person that brings the
cannot be decided by the view but they go to a Poll Who is to manage that Poll Mr. Town-Clerk The Officers of the City by direction of the Lord Mayor Mr. VVilliams That Poll you speak of for Lewis and Jenks Was that managed by any body but by the Sheriffs Mr. Town-Clerk It was managed by the Sheriffs and the Common Serjeant in the accustomed manner Mr. VVilliams How in the accustomed manner when you say that was the first that ever you knew Mr. Town-Clerk It was so for Sheriffs but there have been Polls for other Officers L. C. J. Why Mr. VVilliams every body knows that well enough that the Sheriffs are concerned in the management of the Election or the Poll as all the rest of the Officers of the City are under my Lord Mayor and the Common Serjeant consults with the Sheriffs Officers and People about him upon the view Mr. VVilliams 'Pray' Sir do you remember the Election of Mr. Bethel and Mr. Cornish Mr. Town-Clerk Yes Sir There was a Poll there too that was the Year after Mr. VVilliams Who managed that Poll Mr. Town-Clerk The Sheriffs and the Common Serjeant and I did agree to take it thus in two Books whereof one was with the one Sheriff and the other with the other Sheriff at the two ends of the Hall. Mr. VVilliams That was taken in Writing Sir Was it not Mr. Town-Clerk Yes Sir That other of Jenks was only by telling Mr. VVilliams Were you concerned in taking that Poll Mr. Town-Clerk I did assist at it one day Mr. VVilliams Who ordered you to take the Poll that day Mr. Town-Clerk Truly I did concern my self as little as I could in those things What Report was made to the Court of Aldermen I cannot tell but one day coming into the Hall I had no Mind to concern my self in it but some Gentlemen did pray me to go up to the Poll and I did go up Mr. VVilliams Sir Upon your Oath Did the Sheriffs direct you to take it Mr. Town-Clerk I really think they did not Mr. VVilliams Did my Lord Mayor direct you Mr. Town-Clerk No Sir. Mr. VVilliams Did the Sheriffs manage it Mr. Common-Serj I did it by Sir Robert Clayton's Order who was then Lord Mayor Mr. VVilliams My Lord all that we say to it is this We are not now proving our Right upon which we brought our Action that we submit unto it is against us we must agree it But be the Right one way or other yet we might from a supposed Right have a probable Cause of Action It seems to be a doubtful business by all that Mr. Town-Clerk has said who has the Right for all he knows of the Constitution is from Liber Albus and that is somewhat dark You Gentlemen hear what is said the thing was a Question of five or six days and a puzzling one it seems and therefore we might be misled into an apprehension that what the Sheriffs did was right and so notat all concern our selves with what my Lord Mayor did L. C. J. Mr. VVilliams you talk of that you do not understand for my Lord Mayor was not there at that time of Jenks's Poll I was Common Serjeant my self and I know the Sheriffs have nothing to do with it Mr. VVilliams It should seem by Mr. Town-Clerk to be doubtful sometimes one and sometimes another did direct the taking of the Poll. L. C. J. But you are out still But for all that this is nothing to your Right of Action one way or other Mr. VVilliams My Lord I must lay it here it was a doubtful thing and we brought our Action to try the Right but afterwards conceiving we were out and had no Right we discontinued and desisted L. C. J. It was so far from being their Right that I desire you to call me any one Witness that can say before Jenks's time there was ever a Poll for Sheriffs or such a thing thought of Mr. VVilliams We were under an apprehension of a Right in them L. C. J. There could be no colour for any such apprehension in the World. Mr. VVilliams We must submit it to your Lordship's directions Mr. Att. Gen. So do we Mr. S. Maynard Whether this Action brought by us was malicious Mr. VVard My Lord Mr. Attorney doth challenge the Defendant to shew that his Action was brought by advice of Counsel we shall shew it was with good Authority of Counsel Mr. Baker can you tell whether it was by any Advice and whose Mr. Baker It was by the Advice of Mr. Thompson Mr. Pollixfen and Mr. VVallop as I have heard Mr. Att. Gen. But you hear what Keeling says there was a Party that were at a Consult about it and that were concerned in it Mr. Sol. Gen. My Lord We have done on both sides I think and submit to your Lordship's direction in it L. C. J. Will any of you say any thing more Mr. VVilliams No my Lord we have done we leave it upon this Evidence to your Lordship and the Jury Mr. Att. Gen. My Lord We have no more to say for the Plaintiff L. C. J. Then Gentlemen of the Jury as my Brother Maynard said in the beginning of his Defence in this Cause so I say now to you to set all things strait and right God forbid that any heat or transport of the times should bring us into that Condition but that every Subject of the Kings that hath a right of bringing an Action at Law against another should have free Liberty so to do And the Courts of Justice are now and I hope always will be so open that every one that would take a Remedy prescribed by the Law for a wrong done him may be received to bring his Action which is a Legal Remedy And I am to tell you Gentlemen that much has been said in this Case which I perceive is by the Concourse of People a Cause of great Expectation as my Brother likewise said which is not at all to the Case I am sorry truly at this time of Day that we should stand in need of such Causes as these to settle and keep People in their due bounds and limits But tho' many things have been said in the Case that are quite besides the natural Question yet they having being made Dependancies upon that Question and because it seems to be a Case of such Expectation I think it will become me in the Place wherein I am to say something to you and according to the best of my Understanding tell you what I apprehend to be the legal Part of it stripped of what hath no Relation at all to it And if I shall omit any thing that is material on the one side or the other here are Gentlemen that are Learned in the Law who are of Council both for the Plaintiff and the Defendant and I shall not think my self under any sort of Prejudice in the World if they take the liberty as they may freely do to interrupt me
Suit that is to be looked after by the Officer himself Whatsoever was the Usage in that matter we are not to answer for tho it is plain an Appearance would have done all presently we shall prove we gave order to use all Deference and Respect in the World. And besides tho I could not speak it to invalidate any of the Evidence given about the Right of Election one way or other yet there being a Return of the Defendant's Election by the Sheriffs to the Court of Aldermen but they being of another Opinion gave Order that those that thought themselves aggrieved should take their Remedy at Law Which Order we have pursued in that regular course that the Law has prescribed And I hope it will never come to that that a Man tho mistaken conceiving himself to have a Right of Action and suing out the King 's Writ shall suffer for so doing unless particular Malice be made to appear Here is a great Noise of Damage and Disrepute and Disgrace to the Plaintiff and his Office and he has been pleased to reckon his own Damages at 10000 l. We say he has sustained no Damage by any thing we have done but we are quite not guilty of this unreasonable and malicious Prosecution laid to our Charge And that we are not guilty the matter that has been opened we think will sufficiently declare For if there were a Contest about the Election and the Sheriffs returned it as their Opinion that the Defendant was chosen tho they and he too were mistaken yet that might give a probable Ground for his pursuing the course he did take and the very Court of Aldermen and the Lord Mayor bidding them take their Course at Law we sure shall not be punished for it We did not prosecute our Question in any malicious way but in that Course that the Law allows by taking out the King 's Writ and we hope the Law will protect us for it Mr. Williams Will your Lordship be pleased to spare me a Word on the same side with Mr. Serjeant Maynard I am of Counsel Gentlemen with Mr. Papillon the Defendant in this Action We do not insist upon it nor now offer any thing-to assert our Election We did apprehend we were Elected but that is ruled against us and we rested satisfied with it But we come here now before you upon this Question Whether we had any probable Cause of Action upon which we might take out this Process mentioned in the Declaration which is a Capias upon a Latitat And we do insist upon it that this Action of the Plantiffs must fall upon the Issue joined if we can satisfy you and shew that is was not malicious and without probable Cause And though our Cause of Action against the Plantiff falls out in the Event not to be a good and sufficient Cause yet if it were probable it will evade this Action and that is all we labour for They do not attempt to prove at least-wise I have not heard any thing of it that there was any express Malice any thing either said or done by the Defendant more than the causing him to be arrested upon this Writ It is very well known it was in the City of London a very much controverted Question Whether Mr. Papillon and Mr. Dubois or Sir Dudley North and Mr. Box were chosen Sheriffs of London I would not run over the History of it it is but too well known and remembred the Divisions that were in the City about it Some were so much dissatisfied with the swearing Sir Dudley North and Mr. Rich Sheriffs as thinking them not duly Elected that they would have the Court of King's Bench moved for the Writ of Mandamus to swear Mr. Papillon and Mr. Dubois This Mandamus was moved for and granted and to this Writ the Mayor and Aldermen to whom it was directed made a Return that we were not Elected Sheriff of London which Return was apprehended to be false and really to try the Truth of this Return was the Action brought against the Plantiff A Man that is injured by a False Return hath indeed no other way to right himself but by bringing an Action against them that made it Upon this Action brought I hope you are satisfied Gentlemen from the Evidence that has been already given the Defendant proceeded regularly and orderly in a decent manner applying himself to get an Appearance to his Action And we shall prove he did so For first he took out a Latitat against my Lord Mayor and by the Attorney gave him notice of it and desired an Appearance so that the Question in dispute might come to some determination But he was not pleased to give us an Apperance to that Writ so we took out a Capias gave him notice of it and desired an Appearance but could have no Appearance whereupon we took out an an alias Capias which is the Writ mentioned in the Declaration and the Coroner who has been named was then told he should be called upon to make some return to his Writ which he acquainted my Lord Mayor with and desired him to give an Appearance which he refusing to do the Officer was constrained to arrest him to execute the King 's Writ and you hear how he treated him with all the respect and carried him to his own House where he staid some hours and then went away All this time were we satisfied with what was done we expected no more than an appearance which at last was given Upon that Appearance we did declare in the beginning of Hilary or Easter Term 83. But it fell out that in Easter Tearm 83 there was an Information for a Riot upon Midsommer-day before about this contested Election came to be tried And that coming to Trial 10 Maii and being found to be a Riot and the Sheriffs sworn to be duly elected thereupon we were abundantly satisfied that we were mistaken and under misapprehensions and that our Cause of Action would not hold and we did discontinue it Indeed if we had prosecuted our Action after that it would have been more like an Angry and a Silly Prosecution and the whole have had a worse Construction than the thing in it self would bear But when we found the Opinion of the Court to be against us about our Election we immediately discontiued our Action Gentlemen we shall prove these to have been our Proceedings and that I hope will satisfy you we are not guilty according as we have pleaded Mr. Ward May it please your Lordship and you Gentlemen of the Jury I am of Counsel on the same side for the Defendant and desire to be heard one word as to some Things that have been said on the other side in this Cause There have been some Questions asked that do very much reflect upon the Defendant and which I would take out of this Cause I shall take notice first what the Questions were and then give them that regard and answer which
they deserve That which is urged Gentlemen by way of Crimination in this Case against the Defendant and an unjust as well as foreign Reflection not at all concerning the Cause is as if the Defendant were acquainted with the Insurrection and Conspiracy that was intended against the King's Life and for subversion of the Government and procured the Plaintiff then Lord Mayor to be arrested to further and promote that Insurrection But as that was insinnated only for Reflection's-sake so I hope you Gentlemen will be pleased to take notice that not one word of any such thing is proved at all that the Defendant ever knew of any intended Insurrection nor that this was done with any such Design For even their first Witness Keeling from whose being imployed by the Coroner in the Execution of the Writ upon Sir William Pritchard the Plaintiff they would argue that somewhat else was designed in it doth give a positive denial of any such thing now upon his Testimony here And Mr. Papillon the Defendant never knew him in his Life nor imploy'd him in this Business nor ordered that he should be imploy'd in it nor ever saw him but the Coroner gave him his Warrant to execute If therefore Keeling and Goodenough were concerned in any ill Business and have taken upon them to do that which they ought not to have done that doth not signify any thing in this Case nor ought to turn to the Defendant's prejudice Nor if any thing were done by the Officers that were to execute this Process that were a Misfesance or a Male-execution of their Office that ought not to be imputed as a Fault in the Defendant But for this Matter now before you the Case will depend upon this Point chiefly Whether the now Defendant had a reasonable Cause or probable Ground to bring an Action against the Plaintiff at the time when it was brought and this Arrest made For there is many a Man that at the Commencement of his Action doth conceive in himself he has a good probable Cause of Action against another Man that in the Event of Things finds he was mistaken and hath no such Cause and thereupon desists the Prosecution of it Therefore the Probability of the Cause at the time-when this Fact was done is the Question you now are to try For we are not now considering whether that probable Cause did continue and prove a good Cause the Event of this Matter has proved it quite otherwise Indeed the Original Question of this whole Cause was Who were only Elected Sheriffs And that at the time of such Election made a great number of Votes passed for the Defendant is I think very notorious both upon the lifting up of Hands and upon the Poll. These things we shall offer to you and shall make it out that these gave occasion to the Defendant to contest the Election and consequently to the bringing of the Action that the Plaintiff was thus arrested upon If then there were such things as these that we have opened which gave a colour to controvert the Right and the Defendant pursued the Method prescribed by the Law to bring it to a Determination and there was no particular disrespect or incivility offered to my Lord Mayor then sure there was no reason to bring this Action against us And that there was no indecent behaviour used towards the Plaintiff doth appear from the Evidence that hath been given of the whole Transaction All that was desired of my Lord Mayor was but an Appearance For this was indeed an Action that did not require Bail but an Appearance though I must needs say I never knew any one so averse to give an Appearance to an Action as the Plaintiff was for after a Latitat and Capias taken out and being frequently acquainted with it and at length upon application after the taking out of the Alias Capias and many Attendances with all the deference and respect imaginable both to his Person and Office not so much as a bare Appearance could be obtained Upon the opening of the Declaration and the Cause you have been told of the great Dangers that were in the Case as to the infringement of Publick Peace and the Government which has been very much aggravated on the other Side But had the reasonable Request of the Defendant by his Attorney or the Officer so often repeated been but complied with it had been but sending to any Attorney and ordering an Appearance and then I hope the Peace of the Kingdom had been in no Peril from such a Design as this Arrest Which I would not have mentioned nor should have taken to be at all concerned in the Issue now before you to be tried but that I find them to be taken into the Question when I hope you will consider they are no way material to the Point in Controversy Now Gentlemen in our Defence against this Suit of the Plaintiffs we shall call our Witnesses to prove what we have opened And our Defence will be in these Steps First To shew the inducement to our Action against the Plaintiff which will shew there was a probable Cause Secondly Give an Account of the reverent Carriage and Behaviour towards the Plaintiff in the prosecution how with reiterated Applications it was only desired that the Plaintiff would give an Appearance which he was not pleased to do and that thereupon with great civility the King's Writ was executed as indeed I see no Proof to the contrary For neither the Coroner nor those other People that gave their Assistance to him were at all rude in their Carriage to my Lord Mayor but as soon as the Arrest was made they were all turned off and the Coroner staid alone with my Lord and went with him in his Lordship 's own Coach to the Skinners-Hall which was the Coroner's House Neither was there any thing ill done after all this was past For upon the Plaintiffs appearance the now Defendant declared in his Action and intended to pursue it but it happened that afterwards in a short time these things suffered some debate in a Trial that was here about a Riot at this Election where the Question of the Right and Election was determined on the other side which gave the Plaintiff in that Action the Defendant in this satisfaction that he was in a mistake and so he thought fit to discontinue that Action and proceeded no further L. Ch. Just No Mr. Ward that was not the Question determined then Mr. Ward My Lord I humbly conceive the Issue of that Cause did determine that Question L. Ch. Just No no I tell you it was not the Question Mr. Ward I must submit it to your Lordship L. Ch. Justice I perceive you do not understand the Question that was then nor the Question that is now You have made a Long Speech here and nothing at all to the purpose you do not understand what you are about I tell you it was no such Question Mr. Ward My
can hardly get one word of truth out of them Let the Law in GOD's Name take place and let every man prosecute his Legal Actions but when under the Umbrage and Countenance of Law men shall desire to put themselves into Offices and Places of Trust on purpose to disturb the Government Do you think the Government will ever suffer it self to be snivelled at and overthrown by a Company of such Whining Fellows Let them hiss and hum and make a noise and a-do as they will thanks be to God 't is not that time of day now Such things have past too much uncontroul'd in the Body of this City heretofore What Gentlemen are you baffling the Law with such pretences as these now-a-days and do you think to sham People into Offices No I tell you Villainy was the foundation of it and Knavery the superstructure and it is high time it should be told out since I hear people begin to doubt of it as a question Mr. Ward Where is Mr. Serjeant Swear him Which was done Ld. Ch. Just Do not I know as sure as I sit in this Place that Bethel did once before Swear himself off and that there were two Elections of these two very men that year and that one of the Reasons was because they had not taken the Oaths and the Sacrament according to Law nor would they ever have done it we know them neither Bethel nor that very fellow that stands there Cornish neither till they found it would contribute to the Design of Subverting the Government then these Rascals could qualify themselves for an Office only to put the Kingdom into a Flame Mr. Cornish When the City chose me I had good reason for what I did Ld. Ch. Just Reason I tell you the City was in great happiness and quiet ever since the late times of Rebellion and Confusion every one knew his Duty to his Superiors and did it chearfully and conscientiously till such time as a couple of busie fellows came to get into the publick Offices Let the whole party go away with that in their Teeth and chew upon it if they will. Mr. Williams Mr. Serjeant will you please to tell my Lord and the Jury what directions you heard the Defendant Mr. Papillon give about the Plaintiff how they should treat him Mr. Serjeant My Lord I was in the Counting-house at Mr. Alderman Cornish's house when Mr. Papillon and Mr. Dubois were there I went into thē Parlour to them and Goodenough coming in they fell into a discourse about this Action that was brought by them against Sir William Pritchard then Lord Mayor and some of the Aldermen And Goodenough gave them an account how far he had proceeded in it he said he could not get any of them to give an appearance and the time was near spent and he desired to know of them what he should do Mr. Papillon and Mr. Dubois both did declare to him over and over again that it was their mind only to have the matter brought to a fair Trial and they charged him to look to it to do nothing but what was Legal and carry it with all respect imaginable to my Lord Mayor as the Chief Magistrate of the City that he should by all means get an appearance from him if he could and get the Coroner who was an Officer of the City to go with him and carry all things fairly and decently Mr. Att. Gen. Who gave these directions Sir do you say Mr. Serjeant Mr. Papillon and Mr. Dubois both of them did Mr. Ward Now my Lord we shall shew that we proceeded so far in the Action as to declare but afterwards apprehending our selves to be under a mistake we discontinued our Action Mr. Williams And the costs upon the discontinuance were received by my Lord Mayors Attorney Here is the Declaration as it was filed Ld. Ch. Just Ay it may be there was a Declaration filed but not regularly Mr. Williams My Lord Mayor after appeared Ld. Ch. Just How doth that appear in Evidence For the Coroner says he himself was in Custody and knows no more of the matter afterwards Mr. Williams I believe your Lordship doth remember there were many motions made in Court about this matter on the one side and the other and at length in Court it was comprimised and my Lord Mayor promised to give an appearance Ld. Ch. Just Prove what you can prove the appearance entred declaration received Mr. Williams My Lord I only offer this as an Evidence of an appearance Ld. Ch. Just A Record I know is a good and fair Evidence shew that if you can Mr. Ward It is not usual to declare till the Defendant appears Ld. Ch. Just A Declaration may well be upon an appearance but because it cannot be good without an appearance therefore it cannot be a sufficient Evidence of it Mr. Ward We will prove the Costs of the discontinuance paid and accepted Swear Mr. Baker Which was done What do you know Sir of any Costs that were taxed and paid for a discontinuance in this Case Mr. Baker My Lord Mr. Aston told me he appeared for Sir William Pritchard then Lord Mayor and had a Declaration from the now Defendants Attorney So I entred up a Discontinuance and paid the Costs and have Mr. Aston's Receipt for them Ld. Ch. Just He says well Go on then Mr. Williams My Lord it is a thing that hath frequently happened that after a man has brought an Action against another he finds he was mistaken and hath no cause of Action and thereupon relinquisheth his Suit But sure that will not make him liable to a Suit. Ld. Ch. Just. Well 'pray' go on with your Evidence Mr. Ward My Lord we are not now offering to try the right of Election tho' that really was the Foundation of the Action that we brought but we apprehended that question to be determined and we acquiesced in it when that Trial was over Now my Lord we shall shew that apprehending our selves really chosen we did in a due course of Law Sue forth our Mandamus directed to the Plaintiff and the Aldermen and there is a Return made I pray these may be read The Mandamus and Return were read Mr. Williams Then that which we shall next shew is the grounds and reasons why we thought this Return was false and thereupon brought our Action We shall shew that at a Common Hall held for the Election of Sheriffs the Defendant was in nomination and had a great number of Hands and Voices for him 'Pray' call Mr. Gilbert Nelson Mr. William Wightman and Mr. Leonard Robinson Who all appeared and were Sworn Mr. Ward Mr. Nelson 'pray' were you at the Common Hall for Election of Sheriffs in the Year 1682. Mr. Nelson I was at the Common Hall in June 1682. on Midsummer-day Mr. Williams 'Pray' Sir will you tell us who were then in nomination and how they did proceed Mr. Nelson There were in nomination for Sheriffs he that is now
Sir Dudley North then Mr. North Mr. Box Mr. Papillon and Mr. Dubois Mr. Ward 'Pray' Sir who had the majority of Hands Mr. Nelson I did see the Poll-Books after they were cast up Mr. Williams But did you observe the holding up of the Hands Mr. Nelson Upon the holding up of the Hands the Election was by the Sheriffs given to Mr. Papillon and Mr. Dubois Mr. Williams But 'pray' Sir upon your view and in your judgment were there many Hands for Mr. Papillon Mr. Nelson I guess there were the most Hands for him and Mr. Dubois Mr. Ward What say you then to the summing up of the Poll-Book that you spoke of Mr. Nelson I did see the Books after they were cast up Mr. Ward Was there a great number for Mr. Papillon Mr. Nelson Yes there was the greatest Mr. Com. Serj. What Books do you mean Mr Nelson Mr. Nelson The Books in the Sheriffs Custody Sir. Mr. Com. Serj. But did you see my Books Mr. Nelson That was upon the second Poll. Mr. Ward Then which is Mr. Wightman Mr. Wightman Here I am Sir. Mr. Ward Were you present at this Common Hall Did you see this Election Mr. Wightman I can say nothing to the Election Mr. Williams Were you at the Common Hall on Midsummer-day 1682 Mr. Wightman I cannot say that Sir. Mr. Ward Then what is it you can say to this matter in question Did you take any Poll Mr. Wightman I did take the Poll in one of the Books Mr. Williams Was there any number for Mr. Papillon Mr. Wightman There were 2400 and odd for Papillon and Dubois Mr. Thompson Who were in nomination Sir Who were the persons Poll'd for Mr. Wightman Sir Dudley North Mr. Papillon Mr. Dubois and Mr. Box. Mr. Ward What say you Mr. Robinson were you at this Common Hall in 1682 Mr. Robinson Yes I was Mr. Williams Who were named to be Sheriffs then Mr. Robinson Mr. North now Sir Dudley North Mr. Ralph Box Mr. Thomas Papillon and Mr. John Dubois they four Mr. Williams What number had Mr. Papillon for him Mr. Robinson I never saw the Poll. Mr. Ward But upon the view in the Hall in your opinion did you look upon it as a doubtful case which was Elected Mr. Robinson By the Hands I judged the majority was much more for Mr. Papillon and Mr. Dubois than for the other two Mr. Williams So you think in your Judgment Mr. Robinson Upon my Oath that was my opinion Mr. Williams Well my Lord we must rest it here unless they give us further occasion Mr. Attor Gen. You say the majority was for Papillon and Dubois 'Pray' was the Election declared at that time by the Mayor and Aldermen or was there a Poll demanded Mr. Robinson Mr. Attorney first the question was put for the persons then the Sheriffs declared their opinion and a Poll was demanded and a Poll was granted and the Sheriffs went with the Common-Serjeant up to the Court of Aldermen and acquainted them with it and then they all came down again and declared that there should be a Poll. Mr. Soll. Gen. VVho were Sheriffs then 'pray' Sir Mr. Robinson Mr. Alderman Pilkington and Mr. Samuel Shute and in the Evening after the Poll was closed the Books were numbred up the Sheriffs came down upon the Hustings and declared the numbers and then as I remember the number declared for Mr. Papillon and Mr. Dubois was above 2000. and the number declared for the other two was some Hundreds under 2000. Mr. Ward My Lord we leave it here Ld. Ch. Just VVill you that are for the Plaintiff say any thing more to it Mr. Attor Gen. Yes my Lord we have more Evidence to give in answer to what they have brought here My Lord that which they would excuse themselves by is that there was a probable Cause but that will fail them if it be but observed what doth appear upon their own Evidence It is true where a man hath a probable right he may Sue But this matter here contended for was never such a right as a man may to sue for No man can ever shew that for the Shrevalty an Office of Burthen an Office of Hazard and an Office of Charge and Expence any man did ever sue so little ground of reason had they to bring this Action for this Office. And then for their Title to the Office that will appear but very weak They pretend that my Lord Mayor and Aldermen could not try the right who was Elected truly and rightfully and they bring this Action to try it and then they produce some of the men that held up their Hands and in their Opinions Gentlemen they say the Election fell upon Rapillen and Dubois But Gentlemen that my Lord will tell you is nothing at all of Title but a Poll was demanded and by that it must be decided Then one of their VVitnesses tells you a story of what the Sheriffs did upon the Poll But all that is nothing too For we tell you and shall prove it that those Sheriffs did in a riotous manner assume and take upon themselves the Supream Government of the City and would have excluded my Lord Mayor from it But all their proceedings and all that they call a Poll was void and can make no Title to any thing at all It was a bare dispute of a factious Party to subvert the Orderly Government of the City There was no probability of Title or Right could be gained by it For the Chief Magistrate of the City for the time being ever did direct the Poll and all the Proceedings upon Election of Officers And when he did so in this Case we shall prove to you there was not any considerable number that is not twenty men to give any pretence of Title to this Gentleman that thus sued for this Office. But indeed in that most riotous assembly one of them that ever was they do pretend to be Elected But we shall shew that for that riotous assembly they were convicted here as Rioters upon an Information and fined to the King for it And I could tell them of a like Case of an illegal Title a man goeth by a false Oath to get a Possession of goods takes out a Capias and with others getting into a House to arrest the Party he then carries away all the Goods and upon this possession would set up a pretence of Title But upon an Information for a Riot he was severely punished for it Mr. Papillon if h ehad thought he had had a good Title or Cause to bring this Action he would have imployed better Instruments to have proceeded in it The Attorney he makes use of who is it but Mr. Goodenough one who did not live within the City nor had any thing to do in it till brought into Office as the great Instrument of Mr. Bethel in his Actions and a great Plotter in the late horrid and dreadful Conspiracy And this Cause how is it managed Not by
any Counsel of worthy Men of the Robe or grave Citizens but by a Cabal of thirty or forty Rioters most of them in the Proclamation proscribed as Traitors and run away from Justice upon the Discovery of the Plot. All this speaks Malice and the worst of Malice the thing it self speaks it to pretend a Title with so little or no ground For you plainly observe there is no Title but this riotous Assembly to ground their pretences upon In the Prosecution of this Action there was no Order whatsoever they pretend for to take an Appearance I mean by those that really were at the bottom of the Design For the forty Men at the Consult at Russel's did not meet to be sure to give Order for an Appearance No they had other work to do An Appearance would not do their work For as Mr. Keeling at large could explain it they took all Opportunities to rise and make a Mutiny and take advantage of the Mobile and disturbances to bring about their mainPlot They did not care five-pence for the Appearance But when the Soldiers were up then the Plot was spolied and then my Lord Mayor may go home if he will. Gentlemen we shall prove what I have opened to you tho' I am perswaded not one of you but know it as well as I. Mr. Sol. Gen. Shew the Records of the Conviction of the Riot L. C. J. Hold Mr. Sollicitor I tell you before Hand that as I stopp'd them from urging the Trial for the Rior as any Determination of the Right of Election or as any ways tending to the Question now before us So I must not let you neither enter into that matter The business of the Indictment Conviction and Sentence upon the Rioters makes nothing either to the Right of Election or this Right of Action And therefore as I said to Mr. Ward it was nothing to the Purpose to mention it on that side So it is to no Purpose I must tell you to mention it on the other side For it was no Determination of the Point of Right one way or other And he could not give it in Evidence that that was a Litigation of the Matter in Dispute and upon the Decision of that Indictment till which he apprehended he had a Right he found it was against him and so desisted No the Right I say was not at all effected by that Trial one way or other For admitting they had a Right or you had a Right yet the gaining your Right must not be attempted in a wrongful manner but they had a lawful Way to come by their Right and if they pursued that well and good if not then they must take what comes of it Mr. Att. Gen. My Lord that Right was insisted on by them as the probable ground of their Action and that we say was no Right L. C. J. Therefore it is to no Purpose to urge it Mr. Sol. Gen. But my Lord with Submission our Answer to their Title is that there was no Colour of Pretence and this Conviction proves it L. C. J. No Mr. Sollicitor that is not any Evidence one way or other Mr. Sol. Gen. If your Lordship please it destroys their very Title which is the Number of the Poll. L. C. J. Lord the thing is as plain Gentlemen as any thing can be You or they may have a good Title and yet do a thing that is unlawful to bring the Title into Possession But then the punishing you for that unlawful Act is not an Evidence either against or for the Title nor doth determine it for you or against you Mr. Sol. Gen. My Lord we submit to your Lordship's Directions in it But then this we say to it the Question now is reduced to this Point Whether there were any probable Cause for the Defendant's Suit against the Plaintiff They have insisted upon it that there was from two grounds They call Witnesses who declare they were of Opinion that the Defendant had the Right of Election by the holding up of the Hands That is one of the probable Causes of their Suit. Now that is clearly gone by this single Point whether the Election was determined upon that holding up of the Hands or they went to a Poll to decide it If they went to a Poll then it is clear the Right of Election was not determined and he could have no Right to be Sheriff upon the holding up of the Hands Then they went a little further and offered in Evidence the Sheriff's Poll-books or the Numbers taken out of them wherein they say the Majority was for Mr. Papillon and so thereupon say they we brought our Action Now to that Objection it is proper for us with Submission my Lord to answer it that that can be no manner of Cause of Action in the World because say we that was no Part of the Election at all nor was it at all to govern the Question of Right one way nor other 't was a Number of Names taken out of the regular Course upon Elections by Persons that had no legal Authority nor was it such a Method as was a Foundation to ground any Opinion upon one way or other much less such a one as would be a Cause of Action These are all the grounds they went upon The first by their own shewing was no ground at all for there was no Determination of the Right upon the View but a Poll was agreed upon The other we shall call Witnesses to prove was irregular and so not legal Swear Mr. Town-Clerk Which was done Mr. Att. Gen. 'Pray' Sir will you give my Lord and the Jury an Account who is to govern the Poll upon the Election of Sheriffs or other Officers at the Common-Hall Mr. Town-Clerk My Lord I never knew a Poll about Sheriffs till about five or six years ago and that was the first Poll that ever I knew and it was between Mr. Jenks and Sir Simon Lewis and indeed it was the first that ever I did read of in any time within the City of London I think I have seen the Entry of all the Elections of Sheriffs that are extant in our Books in all times and I think I did never see in any of those Entries one Poll that was ever taken for Sheriffs it is only mentioned Such an one elected by the Mayor by Prerogative and such an one by the Commonalty Among other Books of the City's there is an old Book that is called by the Name of Liber Albus which speaking of the Constitution of the Common-Hall for Election of Sheriffs says First of all the Mayor shall chuse one of the Sheriffs for London and Middlesex for whom he will answer and then the Commonalty shall chuse another to join with him for whom they will answer And if there arise any Difference between them who is elected or not elected it shall be determined in the same manner as it is in the Common-Council This is all the Notice that I find in
any of the City-Books that looks like a deciding the Election when disputed by a Poll. Now in another Chapter of that Book where the Common-Council is mentioned it is said If there be any Division of Opinions in the Common-Council the Common-Serjeant and the Town-Clerk shall examine every Man severally what their Opinion is which is by way of Poll at this day when we had a Common-Council But till that time that the Poll was between Mr. Jenks and Sir Simon Lewis I never knew any Poll for Sheriffs and that Poll was taken immediately by telling one and the other For my Lord Mayor and Aldermen as soon as ever they come upon the Hustings make Proclamation to have the Liveries attend for such Elections and then withdraw and leave the Sheriffs and the Common Serjeant Mr. Att. Gen. Sir the Course is very well known I suppose to the Gentlemen of the Jury But 'pray' did any Persons Poll at my Lord Mayors Books for Dubois and Papillon Mr. Town-Clerk Not that I know As to this Poll my Lord Mayor caused the Common-Hall to be Adjourned to such a time and after that-sent for the Common Serjeant and my self and required us to go get Books to take the Poll for Mr. Box Mr. Papillon and Mr. Dubois as for Sir Dudley North he was not to be Poll'd for he being Chosen before by the Prerogative of the Lord Mayor and my Lord Mayor and Aldermen declared him fully Elected and upon that he was called out by publick Proclamation upon the Hustings to come and take the Office upon him as is usual in such Cases But we had directions to provide Books to take the Poll for Mr. Box Mr. Papillon and Mr. Dubois and we did so and took the Poll for these three Gentlemen and upon closing of the Poll we all of us sealed up our Books and delivered them to my Lord Mayor and at a Common-Hall afterwards he did declare Mr. Box to be Chosen the other Sheriff to be joined with Sir Dudley North The Poll was as it always ought to be by the direction of my Lord Mayor and the Sheriffs are but Officers and not the Judges and Managers of the Poll without my Lord Mayor's direction L. C. J. What say you to it Gentlemen Have you any more Evidence Mr. S. Maynard My Lord and Gentlemen Here has been much said in this Cause that is nothing to the purpose As particularly that which the Plaintiffs Council did last insist upon who took the Poll and who had right to take the Poll or not is not any thing to this Question This Action is not at all concerned in that matter For whatsoever the dispute was and which soever had the right and because it was a dispute some it may be could not Poll at the one and others would not Poll at the other yet the lifting up of two thousand Hands might make him think that he was Chosen Sheriff and there lies the Cause of his Action his apprehension of a Right Your Lordship did Object this to us Who ever before brought such an Action as ours and did sue to be Sheriff of London a Place of Charge and Trouble L. C. J. No I did not make it as any Objection I asked your Witness Cornish that Question indeed for some Reasons that I know Mr. S. Maynard That may be Objected indeed to the Prudence of my Client Mr. Papillon to desire such an Office But that proves nothing of Malice in him against the Plaintiff for if he were never so unwise as to desire it if he had a Right to it or thought he had it is not a malicious thing in the Eye of the Law for him to take his Legal Course for it and then the Objection that is made of the Instruments that were used Our Attorney Goodenough is in a Plot What is that to us There is not the least suspicion upon us He is a bad Man But that doth not make all his Clients bad But the Question now before you is First Whether there were any probability of a Cause of Action Secondly if there were not a probable Cause yet whether that Action was grounded upon Malice What Malice I pray is there in this against my Lord Mayor to desire an Appearance of him when it is conceived though upon mistake that there is Cause of Action against him We did not press him to give us Bail to our Action or threaten else to arrest him No it was a decent rather than an irreverent Application to him If then there be not both concurring want of Title or probable Cause and Malice too this Action of the Plaintiffs is without ground No Man that has any Sense if he knows he has a clear Title against him will bring an Action but though it should be clear against him yet if he do bring an Action but not vexatiously and maliciously that cannot subject him to an Action that would frighten Men from bringing Actions upon doubtful matters which certainly is Lawful for any Man to do Now what Malice is proved in the Defendant against the Plaintiff the Jury here are Judges of If we were Criminal in the manner of our Proceedings they might come before your Lordship in another way but sure this is not the way and if it should be Actionable and we likewise subject to be punished as a Criminal then we should suffer twice for the same fault Now Gentlemen upon this Action we are not to be fined but they if they can are to shew what damages the Plaintiff sustained by our Action and if what we have said do not satisfie you that we had probable Reason for what we did then you upon your Oaths are to give him what damages you in your Consciences think he has received by it Mr. Williams My Lord if your Lordship please I would ask one question of Mr. Town-Clerk as to the Right of managing the Election Sir You have observed many Common Halls for Elections Mr. Town-Clerk Yes Sir I have for this twelve years Mr. Williams Did the Common-Hall ever go to a Poll upon an Election before this time that you know of Mr. Town-Clerk Never but once for the Election of Sheriffs I say Mr. VVilliams I speak Sir of any sort of Poll for I suppose you do not call the holding up of Hands a Poll. Mr. Town-Clerk Mr. Jenks's Poll was the First that ever I knew for Sheriffs Mr. VVilliams Well Sir Was that managed by the Sheriffs or by my Lord Mayor or by you and the Common Serjeant or who was it by Mr. Town-Clerk Sir The Mayor and Aldermen withdraw and leave the Sheriffs to view the Election by the Hands and the Common Serjeant propounds the Question So many of you as will have c. Mr. VVilliams By whose direction doth he propound the Question ' Pray' Mr. Town-Clerk By the direction of the Common-Hall I take it Mr. VVilliams But if a Question do arise upon an Election so that it