348       Provincial Court Proceedings, 1677/8.

             Liber N N  Stocket could not be damnified, no trespas being cothitted agt him,
                    nor could the Sheriffe upon any Execucãn for a private person sett
                    the broad arrow being the proper marke for his Lopp for his own
                    dues & for rents & Levyes Nor can any Execucons for private per
                    sons affect goods or tobacco of another persons though in the debitors
                    house, but an accon will lye agt the Sheriffe for wrongfully takeing
                    & detaining such Goods so illegally levyed, or they may be replevied
                    if paid &, delivered away, or if they there remaine & the property
                    unaltered, the party claying property in them may legally take the
                    same away, notwithstanding such illegall Levy as this case is Be-
                p. 581 sides the accon as now comenced & the judgemt Thereupon is Erro
                    nious, in that the plaintiffe in the action ought to have sued upon
                    the Act of Assembly made agt persons takeing away tobacco marked
                    & received by the Sheriffe, & so itt ought to have bin as well on the
                    behalf e of himselfe as the Lord Propry & the party offending to pay
                    foure fold & to incurre other penalties as by the said Act, otherwise
                    either the Lord Propry doth loose his moiety or the Defendt may be
                    againe vexed by W Taillor by way of Informacon on the Act, if
                    the party hath done as by the declaracon is supposed
                     The action (if any) ought to have bin in trespas only & not in
                 6thly trespas upon the case, the same being alleadged to be done vi & armis
                     is altogether erronious
                7thly The plea is not guilty of the trespas &c & issued joyned on that
                    in trespas, which is a variance from the Record of the declaracãn,
                    & in that particuler manifestly erronious
                8thly The names of the jury impannelled are not mencöned in the
                    Record which ought to be done, that inspeccon being had of them,
                    the Court might know if they be boni & legales hommes according
                    to the venire facias which is vitious & erronious
                gthly The jury itt seemes by the Record proceed ex parte upon an affi
                    davit drawn & penned by Mr Taillor himself e, which ought not to
                    be admitted in any case for affidavits to be read & the party prsent
                    to sweare viva” voce, that (if occasion were) crosse questions might
                    be asked by the Court. but Mr Tailors Oath either by Affidavit or
                    viva voce ought not to be admitted in any case, he swearing on his
                    owne behalf e, & ought to have bin the proper party plaintiffe, & did
                    in Court declare himselfe concerned as a party, & so refused to sitt as
                    Judge in Court, but gave Mr Hill directions to give the charge to the
                    jury, which makes nothing to condemn the defendt unlesse unlaw
                    full seizures be justifiable; for the tobacco was before paid by Knigh
                    ton & to him delivered for rent arreare on the plantacon where
                    Knighton lived, & the houses delivered to Peca as a reentry for non
                    paymt of rent And the said Peca before Execucön in quiet posses
                    sion thereof, & had paid the tobacco to Col Chew who carryed the
                    same away & not Peca, & in that Mr Chew the more proper trespasser
                    if any were done And Knightons deposicon makes for the said Peca