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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A38869	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.	Pritchard, William, Sir, 1632?-1705, complainant.; Papillon, Thomas, 1623-1702, defendant.; England and Wales. Court of King's Bench.	1689 (1689)	Wing E3587; ESTC R12402	61,421	42

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

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

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

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