194 Provincial Court Proceedings, i6?(/8o.

Liber W. C.

Court upon a bare Allegacon discharges the sheriffe and Dismisses
the accon and the plt there Remidilesse
2 M^r Hamiltons affirmacon to the Court being not upon oath,
w^ch is rec^d as Evidence by the Court) ought not to have beene
Soe received) but the Court ought to have Judged him according to
the Returne of his writt and Proceeded to Amerce him & hee
speakes in his owne cause to Excuse the Sheriffe from his being
Amerced w^ch is Extra Judiciall and Illegall and Could noe way dis-
charge him in not bringing his Prissoner to appeare according to
his Returne of the Writt.

p. 174

3^dly- The allegation of M^r Hamilton that Perfitt was ready to pay
if they would bring a bagg, Could in noe wise bee Admitted as
Evidence ag^t Vanswearingen or for the Defend^t Perfitt, There
being no appearance and soe noe issue Could bee Joyned, and with-
out that the Court Could not proceed to try the Cause, but the
Defend^t ought to have appeared and put himselfe upon the Issue,
that hee was ready to pay and had tendered the Tobacco According
to his obligation w^ch was to bee in Caske, and that being matter of
ffact it ought to have beene Tryed by a Jury for ad questionem
Legis Respondent Judices as Questionem fact[i] respondent Jura-
toics, And had the Court power att that time to have taken Cogni-
zance of what Hamilton sayed, Yet all hee sayed Could not war-
rant That Illegall and Extrajudiciall Order of dismission for That
the Defend^t was ready to pay the Debt and had made Tender of the
debt as the Order sayes, w^ch was false, Therefore the said Garret
saith the said Record of the proceedings and Judgment aforesaid
of the County Court aforesaid are Very Illegall Arbitrary and
Erronious, And he prayeth that the said Judgment of the County
Court may bee Reversed and sett aside & that hee may have Judg-
ment for his Debt damages and Costs.
And the said William Perfitt by Henry Bonner his Attorney
Prayed the hearing of the Errors aforesaid, and prayed Leave to
speake to the same till the next Provinciall Court, and itt is granted
unto him the same day is given to both partyes
Att Which said next Provinciall Court to witt the ffifteenth day
of May in the fifth yeare of the Dominion of the R^t hono^ble Charles
Lord Baltemore &c Annoq Domini 1680 Came the said partyes by
ihcirc Attorneys aforesaid and the said William by his said Attorney
sayth. That the Judgment afores^d in the writt of Erro^r mentioned
Given by the said Court is good and effectuall in Lawe and ought not
to be Reversed, for the Reasons above alleadged because hee saith
I^st As to the first reason that the Defend^t was Lame and not able
to make his personall appeareance in Court That the Sheriffe ought
to have Returned a Languidus, This Defend^t saith that whether the
Sheriffe bee soe bound or noe is not anything to him or his cause
materiall the sheriffe being to Answere himself for what returne