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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
word_n	action_n	defendant_n	plaintiff_n	2,777	5	10.2676	5	false

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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

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

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