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would run the risque of my life, if by speaking | leave the matter with you; I am sure, that if the truth I could save it. God help me, and deliver me in this exigency, that it is he, and you under him, that preserve

The Chief Justice did here appear enraged, and interrupted him, saying, What do you mean by this?

Hayes. I say

L. C. J. Ay, but you must say those things that are decent and fit for us to hear; you must not insinuate, as if the government would make any such compacts as you talk of.

Hayes. I say, that Mr. Froster told meL. C. J. If you offer that, I can tell you a story, that perhaps you will be very unwilling to hear; on my word, it will be very unpleasant to hear it; you had better let those things alone, for you will but draw a load upon you.

me

Hayes. I beseech your lordship to hear

L. C. J. Yes, I will bear you, provided you keep within due bounds; but we must not suffer these things.

Hayes. I say nothing but this, it has been told me, that the way to save my life is to confess.

L. C. J. As you represent it, it is a reflection upon the government-you talk of overtures having been made you; do not make me say what I have no mind to say.

Hayes. I say, Mr. Forster by name told me, there was no way for me to escape, but by

confession.

L. C. J. You had best call Mr. Forster, to know how he came to tell you so; if you do, I will tell you of another thing of 4 or 5000l. that was offered for your escape; you had better forbear, or I shall put you in mind of a brother of somebody that is at the bar.

Hayes. My lord, I was told, that was the way: Gentlemen of the Jury, I have declared to you the whole truth, with all the solemnity that becomes an innocent man, and not an ill man. Besides, what you have heard, in all this evidence, is nothing but circumstance and bear say; and shall a man's life be taken away, for I believe,' and I think,' or I have heard?'

Gentlemen, I know you are my fellowcitizens and fellow-christians, and of the same reformed religion that I am; and I hope you are sworn into this service without any prejudice against me, but with an impartial resolution to do justice: and therefore I chearfully

"The story of the 4 or 5000l. was this: An eminent Papist, very acceptable to king Charles the second, undertook to some of the friends of Mr. Hayes, that a pardon should be had for 4000 guineas to the king, and 1000 to himself; but he afterwards declared, that the king had refused him therein, and told him, that he was advised, that he had better give that Popish friend 4000l. out of the Exchequer, than pardon Hayes; but that he gave his royal word, that the overture should not hurt Mr, Hayes." Former Edition.

my life.

Gentlemen, The great incertainties, improbabilities, and consequences in this case, I hope will be weighed by you, and make you the better to consider the proof, which is made by none but such as are strangers to me; siuce, then, they know me not, I hope you will weigh it, before you give it against me: we must all die, and I am sure it will be no grief to you to acquit a man that is innocent I leave it with you; the Lord direct you.

Mr. Recorder, (Sir Thomas Jenner.) The treason charged on the prisoner is of that sort, that if he be guilty, he will be a just example to terrify others from doing the like; for if traitors had not persons to supply them with money abroad, it may be, they would not have so much courage to run away. We have satisfied you that sir Thomas Armstrong was indicted; that an exigent was gone against him upon that account; here was a proclamation, and sir Thomas Armstrong named in it; and so the Recorder repeated the evidence of the witnesses, and concluded: Gentlemen, We think that his defence has been so little, and our proof so strong, that you have good ground to find him guilty.

The Lord Chief Justice then summed up the matter to the Jury:

Gentlemen of the Jury, This is an indictment of high-treason against the prisoner at the bar; and you are to try it according to your evidence. The prisoner's affirmation of his innocence is not to weigh with you. Nay, I must tell you, I cannot but, upon this occasion, make a little reflection upon several of the horrid conspirators, that did not only, with as much solemnity, imprecate vengeance upon themselves if they were guilty of any treason; but thought they did God Almighty good service in that hellish conspiracy: It is not unknown, one of the persons proscribed in this proclamation did declare, they should be so far from being esteemed traitors, that they should have trophies set up for them; and all this under the pretence and enamel of religion: nay, I can cite to you an instance of another of the conspirators, [lord Russel] that after a full and evident proof, and plain conviction, of having an hand in it, when he comes upon the brink of death, and was to answer for that horrid fact, before the great God, he blessed Almighty God, that he died by the hand of the executioner, with the axe, and did not die by the fiery trial: he blessed God, at the place of execution, that he died a traitor against the king and government, rather than died a martyr for his religion. I think it necessary to make some reflection upon it; when men, under the pretence of Religion, are wound up to that height, to foment differences, to disturb and distract the government, to destroy the foundation of it, to murder his sacred Majesty, and his royal brother, and to subvert our reli

gion, and liberty, and property; and all this carried on upon pretence of doing God good service. You are to go according to evidence; as the blood of a man is precious, so the government also is a precious thing; the life of the king is a precious thing, the preservation of our religion is a precious thing, and therefore due regard must be had to all of them. I must tell you, in this horrid conspiracy there were several persons that bore several parts; some that were to head and consult; there was a council to consider; others were designed to have a hand-in the perpetrating of that horrid villainy, that was intended upon the persons of his sacred majesty and his royal brother, and with them, upon the persons of all his majesty's loyal subjects that acted with duty, as they ought to do; there were others, that were to be aiding and assisting (as in the case of the

prisoner, if you find him guilty) aiding, abetting, assisting by money, or otherwise, or harbouring any of those persons that were concerned therein. Then he recounted the Evidence given against the prisoner, and made such remarks upon the same, as he thought fit. The Jury withdrew, and spent two hours in consideration of the matter; and then returning, gave their verdict, that the prisoner was Not Guilty.

Att. Gen. My Lord, thongh they have acquitted him, yet the evidence is so strong, that I hope your Lordship and the court will think fit to bind him to his good behaviour during his life.

L. C. J. Mr. Attorney, that is not a proper motion at this time.

So the prisoner was discharged, after he had been imprisoned five months.

311. The Trial between Sir WILLIAM PRITCHARD, Plaintiff, and THOMAS PAPILLON, esq. Defendant, at Nisi Prius at the Guildhall of London, in an Action upon the Case for a false Arrest: 36 CHARLES II. A. D. 1684.

November 6, 1684.

London, ss. SIR Wm. Pritchard, late lord mayor of the city of London, having in Easter Term last brought an action upon the case, for

*For several particulars of the proceedings in the City of London with which this Case is connected, see the Note to the Case of Sacheverell and others, p. 29, of this volume, and the Cases and Notes there referred to.

The following passages are from Narcissus Luttrell's MS. "Brief Historical Relation," &c. in the Library of All Souls' College, Oxford:

"April, 1685. Mr. Papillon and Mr. Dubois having given order for a writ to be taken out to arrest the Lord Mayor, sir Dudley North, one of the sheriffs, and several of the aldermen, in an action of the case for a false return to a mandamus directed to them for the swearing them two sheriffs of London; and the sheriff being concerned, the writ was directed to Mr. Brome, coroner of London, who accordingly went to them to acquaint them therewith, and desired an appearance, or that they would give bail, which, they refusing, he executed the writ, and carried them very civilly to his own house, and kept them there till ten at night; when one of the city serjeants came with a writ and arrested the coroner, and carried him away prisoner to the Counter, refusing to take bail, so that he was forced to lie there all night, during which time the lord mayor, &c. walked home. This thing had so surprised some persons, that the Tories reported the Whigs had seized the lord mayor and carried him away, and the lieutenancy of the city met, and eight companies were ordered out immediately for the security

falsly, maliciously, and without probable cause, procuring him to be arrested and imprisoned in his mayoralty, against Thomas Papillon, esq. the defendant pleaded, Not Guilty, and thereupon issue being joined, it came this day to be

of the city; this affair affords variety of talk, some condemning it and others approving it, according to the different tempers of persons.

"Nov. 6th, 1684. In the afternoon, a trial was at Guildhall, before the Lord Chief Justice Jeffreys, on an action brought by sir William Pritchard, late lord mayor of the city, against Mr. Papillon, for causing him to be arrested during his mayoralty: and the jury, to the amazement of all, gave 10,000. damages. Since which, Mr. Papillon hath thought fit to abscond, as being much the safer for him.”

At the end of "A Ninth Collection of Papers relating to the Present Juncture of Affairs in England," &c. published in the year 1689, there is inserted, An Advertisement,' as it is called, of the Learning and Rhetoric of the late Lord Chancellor Jeffreys,' as follows:

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"There is lately published, the trial of Mr. Papillon, by which it is manifest that the then Lord Chief Justice Jeffreys had neither learning, law, nor good manners, but more impudence than ten carted whores (as was said of him by king Charles the Second) in abusing all those worthy citizens who voted for Mr. Papillon and Mr. Dubois, calling them a parcel of factious, pragmatical, sneaking, whining, canting, sniveling, prick-eared, crop-eared, atheistical fellows, rascals, and scoundrels, &c. as in p. 29, and other places in the said Trial may be seen. Sold by Richard Janeway, and most booksellers."

tried before the lord chief justice Jefferies; and the Jury sworn to try this cause, were these: Bartholomew Ferryman, Thomas Blackmore, Thomas Symonds, William Whatton, John Green, Thomas Amy, Joseph Baggs, Daniel Chandler, John Reynalds, John Allen, Joseph Caine, and William Withers, jun.

said, had not any just or probable cause of action against the plaintiff in the premisses, whereby the plaintiff says he is injured, and for which he lays to his damage, 10,000l. To this the

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* Pasche, 36 Car' 2. B. R.

London, ss. Wilhelmus Pritchard Miles, nuper Major civit' prædict', querit' de Thoma Papillon in custod' Mar', &c. pro eo videlicet, quod cum duodecimo, die Februarii, auno nostri Domini Caroli secundi nunc Regis Angliæ, &c. tricesimo quinto, ipse idem Wil'helmus Pritchard, ac antea, et abinde per se'parat' menses. ex tunc prox' sequend' extitit Major civitat' London præd', in officium Majoratus illius debito modo elect', præfect', et 'jurat', ac secundum consuetudinem civitat London, prædict', a tempore cujus contrar memoria hominum non existit, in eadem usitat' et approbat' officium suum Majoratus 'illius indies intendi debuit, per assiduam dili gent' ipsius Wilhelmi in regimine civitat illius, per ipsum secundum debitum officii sui præd' exequend', et performand' ad honorem et dignitat' ad officium illud spectant' 'et pertinen', prædictus tamen Thomas existens 'unus de Comitat' civitat' præd', et sub regimine dicti Wilhelmi, virtute officii sui prædicti, præmissor' non ignarus, sed machinans, et false ac malitiose invidens felici statui ip'sius Wilhelmi in officio suo prædict', necnon ipsum Wilhelmum in executione officii illius minus juste inquietare et disturbare, prædicto 'duodecimo die Februarii, anno tricesimo quinto supradicto, idem Thomas Papillon, pro vexatione præfat' Wilhelmo adhibend' (eodem Thoma adtunc non habente aliquam

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Mr. Munday. 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, gentlemen, is in a special action upon the case, wherein the plaintiff does declare, That whereas the 12th of February, 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 premisses, 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-legitimam vel probabilem causam actionis bench, against the plaintiff, by the name of sir William Pritchard, knight, directed to the then coroner of the city of London; by which writ it was commanded the said coroner to take the plaintiff, if found within the said city, and safely keep him so as to have his body before that court at Westminster, upon Wednesdaymum, per nomen Wilhelmi Pritchard, Militis, next after 15 days of Easter, then next following, to answer the now defendant in a plea of trespass: And that the defendant of his further malice against the plaintiff, afterwards, and before the return of the writ, to wit, upon the 24th day of April, in the 35th year aforesaid, at London, to wit, in the parish of St. Mildred the virgin, in the Poultry, in the ward of cur' prox' post quindenam Pasche Cheap, London, delivered the said writ of Alias ex tunc prox' sequend', ad responden' Capias to one John Brome, gent. then being 'præfat' Thomæ Papillon, per nomen Thomæ coroner of the said city, to be executed; and Papillon Armiger', de placito transgres', then and there the plaintiff, then being mayor et quod idem tunc Coronator haberet ibiof the said city, by virtue of that writ, mali- 'tunc breve illud, Et prædictus Thomas ciously and unjustly did procure to be taken, Papillon, ex ulteriori nequitia et malitia sua and arrested, and detained in prison, under the præcogitat' versus ipsum Wilhelmum, postea custody of the said coroner, for the space of et ante retorn' brevis prædicti, scilicet, vicesix hours, to the disgrace and scandal of the 'simo quarto die Aprilis, anno tricesimo suplaintiff and his said office, as also to the ma-pradicto, apud London' præed', videlicet, in panifest damage, prejudice, and grievance of the plaintiff: whereas, in truth and in fact, the defendant, at the time of the taking, arresting, and detaining of the plaintiff in prison, as afore

VOL. X.

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' versus ipsum Wilhelmum) false et malitiose prosequut' fuit extra cur' dicti Domini Reg coram ipso Rege nunc habit', scilicit, apud Westmon' in com' Middlesex adtunc et adhuc tent' existen', quoddam breve ipsius Dom' Reg' de alias Capias versus ipsum Wilhel

adtunc Coronator' civitat' London' præd' direct', per quod quidem breve idem Dominus Rex nunc eidem tunc Coronatori præcepit quod caper' ipsum Wilhelmum Pritchard, si invent' foret in civitat' London' præd', et eum salvo custodiret, ita quod haberet corpus ejus coram Domino Rege apud West' die

rochia sanctæ Mildred Virginis in Pulletria, in warda de Cheap', London, prædictum breve de alias capias cuidem Johanni Brome, Gen', adtunc Coronator' civit' London præd Y

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STATE TRIALS, 36 CHARLES II. 1684.-Pritchard v. Papillon,

[824

spiracy, as has been opened. That sir William
Pritchard was arrested in his mayoralty, I sup-
pose will be agreed, or else we shall prove it.
Mr. Ward. Yes, yes, we agree it.
Solicitor General. (Mr. Finch) Then we will

defendant has pleaded, Not Guilty. If we that
are of counsel for the plaintiff, shall prove this
matter unto you, gentlemen, that we have laid
in the declaration that has been opened unto
you, you are to find for the plaintiff, and I
hope will repair him in damages for this af-go on and prove the manner of it. Swear Mr.
front and injury.

Attorney General. (Sir Robert Sawyer). May
it please your lordship, and you gentlemen of
the jury, I am of counsel in this case for the
plaintiff; and this action is brought, gentlemen,
to vindicate the honour of the chair from such
affronts as these, which in no age, till of late
days, our times of faction and coufusion, it
ever met with that by a person that is a
citizen of London, and one of the commonalty,
that ought to lrave paid submission to the lord
mayor as his chief magistrate, and was bound
so to do by his oath, as a freeman, should,
without cause of suit, arrest the lord mayor of
the city. That there was no probable cause, is
evident by his not proceeding in the action,
that he had thus brought. But, gentlemen,
we shall shew you in the course of our evi-
dence, that there lay a further malice in this
case, and that there was a design in it against
the government. For we shall give you evi-
dence, that this design was laid to carry on
the great Plot against the lives of the king and
his brother, and for the subversion of the go-
vernment. For they contrived it so, that they
would imprison the mayor, and then, thought
they, the loyal citizens will interpose to rescue
him, and then the party should rise to assist the
officer, he having the countenance of authority,
and being in the execution of the king's writ,
(especially if it be considered then who was
coroner) and so a public commotion would be
made a general mutiny, and that would be a
fit opportunity, in the confusion of the city
wanting its chief governor, of doing what they
designed. Gentlemen, we shall prove all that
is laid in the declaration; and likewise that
the end of this business was to have had a com-
motion for the accomplishing their great con-
'existen', deliberavit exequend', ac adtune et
ibidem apud Wilhelmum adtune Major' ci-
'vitat' Loudon præd', ut præfert', existen',
⚫ prætextu brevis illius præ' corp' suum capi et
arrestari, ac in prisona sub custod' ejusdem
'tune Coronator' per spatium sex horarum, ex
tunc prox' scquen', detineri malitiose et minus
'juste procuravit, in vituperation', deroga-
tion', et vilipendium prædicti Wilhelmi et
'officii Majoratus ipsius Wilhelm' præd', nec-
non ad damaum, præjudicium, et gravamen
' ipsius Wilhelmi manifest', ubi revera, et de
'facto prædictus Thomas Papillon, prædicto
tempore captionis, arrestionis, et detentionis
ipsius Wilhelm' in prisona sic, ut præfert'
'fact', non habuit aliquam' justam vel proba-
'bilem causam actionis versus ipsum Wilhel-
mum in præmissis præd', unde idem Wilhel-
'mus dic' quod ipse deteriorat' est, et damnum
habet ad valent' decem mille librarum, et inde
produc' sectam, &c.'

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Mr. Keeling, pray, will you tell my lord, and Gorges, and Mr. Keeling. [Which was done.] the jury, were you made a special bailiff to arrest sir William Pritchard, when he was lord mayor, and what did you do upon it? Tell all you know of it, and what was designed by it.

this: It was upon the 24th day of April, I Keeling. My lord, all that I know of it is have the warrant here to shew, I met with Mr. Goodenough, at Mr. Russel's the cook, in Ironmonger-lane, and several others were there; and I went away a little while, and came again: while I was gone from them, they put my name into the warrant, and upon that warrant, I did arrest sir William Pritchard, who was then lord mayor, at the suit of Mr. Thomas Papillon, I suppose this is the gentleman [pointing to the defendant.] I had no order for it from Mr. Papillon, nor ever spoke with him about it; but I had order from my lord mayor into his custody. the coroner, who, upon the arresting him, took

mayor then?

Att. Gen. Where was my lord
Keeling. At Grocer's-hall.
mayoralty in?-Keeling. Yes, it was so.
Att. Gen. Was that the place he kept his

rested him?
Sol. Gen. What was he doing when you ar-

it, among the officers and people there. The
Keeling. There was some disturbance upon
coroner came up to him and said, Sir, I have
to give an appearance at the suit of Mr. Tho-
a writ against you, I pray you would please
inas Papillon, and another at the suit of Mr.
John Dubois, and some words there passed be-
tween him and the coroner; and my lord
coroner, Mr. Brome, bid us execute our war-
mayor refusing to give any appearance, the
and touched him upon the shoulder, and said,
rants; upon which I came up to my lord mayor,
I arrest you at the suit of Thomas Papillon,
esq. and one Fernando Burley arrested bim
again, at the suit of Mr. John Dubois.

you had arrested him?
Att. Gen. What did you do with him, when

I take it, carried him home to his house.
Keeling. The coroner dismissed us, and, as

Att. Gen. What instructions had you what
not submit to the arrest?
to do, in case he made any resistance, and did

such thing.
Keeling. I know of no instructions about any

were given you to arrest my lord mayor?
Sol. Gen. Who was by, pray, when orders
Keeling. Both the Goodenoughs.
mean, and his brother?
Att. Gen. He in the Proclamation, you

Keeling. Yes, Richard and Francis Goode

nough.

Sol. Gen. And who else, pray?

Keeling. Several that I did not know.

Att. Gen. Can you remember any body besides the Goodenoughs in particular? Keeling. There was one ---, a tallowchandler, and a great many that I did not know.

Sol. Gen. How many do you think there were? And where was it?

Keeling. I believe there were about thirty or forty, and it was at Russel's the cook, in Ironmonger-lane.

Att. Gen, Did they all come along with you to Grocer's Hall, to arrest my lord mayor? Keeling. No, my lord, they did not. Sol. Gen. Did any of them, and which, pray?

Keeling. Sir, I will tell you who did come to my lord mayor's. There was the coroner, Francis Goodenough, Ferdinando Burley, and myself: and after my lord was arrested, the coroner bids us be gone, and he would look after my lord mayor.

Sol. Gen. Whither did you go after that? Keeling. I went to sir Harry Tulse's directly. Att. Gen. Did not you expect an opposition? And had you not some discourse what you should do in case there was an opposition?

Keeling. No, I cannot tell any thing of that. Att. Gen. You say, there was a meeting, or consult, at Russell's, of forty people; had you Dot there some consultation what was to be done, if my lord mayor did not obey the arrest? Keeling. I do not remember any thing about that, at that time.

Att. Gen, Was there at any other time before? Or did you hear any of those people discourse the Goodenoughs, or any of them, what they would have done in case they were resisted?

Keeling. I do not remember any discourse of such thing, before or after.

L. C. J. (Sir George Jefferies.) Pray, Mr. Keeling, let me ask you a question or two. Were you ever employed by the coroner to be a special bailiff to arrest any body, before this time you speak of, that you arrested sir William Pritchard?

Keeling. No, my lord, I never was.

L. C.J. Then pray recollect yourself, who were at that meeting, when, as you say, your name was put into the warrant for this arrest?

Keeling. My lord, when I went away for a little while, I left these persons particularly that I did name, the two Goodenoughs, and one Burton, I think, and one Crompton, and that tallow-chandler; there were to the number of thirty or forty, that I did not know their

names.

L. C. J. But pray, how came you to be employed in this service then? Were you a tradesman in town then?

Keeling. Yes, at Wapping.

L. C. J. Good now, how came you to be employed in arresting my lord mayor, more than any other of those thirty or forty that you say were there then ?

Keeling. I went there among them, but did

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not know then that I should be concerned in this business; and I went away a little while, and when I came back they told me, that my name was put into the warrant.

L. C. J. Pray, tell us the whole story, how you that were a tradesman at Wapping, should come to be employed as a bailiff to the coroner of London, to arrest my lord mayor? There must be some particular end in it.

Att. Gen. Mr. Keeling, tell the court and the jury the whole story, and what it was that brought you into this.

Keeling. My lord, Mr. Goodenough told me I must be concerned.

L. C. J. Ay, prithee tell us what Goodenough desired you to be concerned in.

Keeling. Upon my coming back to the company that was at Russell's, Mr. Richard Goodenough told me I must be concerned in the business of arresting my then lord mayor, sir William Pritchard; said I to him, Mr. Goodenough, this is foreign and remote to my business to be concerned in such a matter as this, it will seem very strange for me to do it. He pressed it upon me to do it, and says he, If you will not do it, you will be a man looked ill upon, and it will be taken strangely from that party; he meant, I suppose the discontented party, the faction, or what you please to call it, that were not contented with the administration of the government in the city, at that time; and he urged it upon me with a great many arguments. I opposed it with much vigour a good while, but at last he prevailed upon me to go along with the coroner; and Frank Goodenough, his brother, said he would go with me, and he did so; and we came and arrested my lord mayor, as I told you before.

L. C. J. Where did Mr. Goodenough press you to be concerned in this business, as you say?

Keeling. At Mr. Russell's a cook in Ironmonger-lane.

L. C. J. How came you thither?

Keeling. He sent me a letter to meet him there. He was at me before to be concerned in it, but I did not comply with him in it. Mr. Richard Goodenough it was, and Mr. Ashhurst, I think it was alderman Cornish's sonin-law, was by.

L. C. J. Was Nelthorp there?

Keeling. No, my lord, he was not there but they did not proceed then, because my lord and his brethren were gone out of town, to wait upon the king, I think; and this was six weeks or two months before this meeting at

Russell's.

Sol. Gen. Pray, Mr. Keeling, recollect yourself. Had you any discourse with Goodenough, or any body else, what the consequence

of such an arrest would be?

Keeling. They told me, my lord mayor, and court of aldermen, had made an ill return to the Mandamus's that were served for them, for the swearing of Mr. Papillon and Mr. Dubois sheriffs, and therefore Mr. Papillon and

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