Peeters v Opie
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 1141
COURT OF KING'S BENCH
Referred to, Battini v. Gye, 1876, 1 Q. B. D. 187; Budgett v. Binnington, 1890, 25 Q. B. D. 326; [1890], 1 Q. B. 35.
[346] de term. sanct.e trin. anno regni regis car. II. 23. 58. peeters versus opie. Hil. 23 Car. II. Regis, Rot. 319. [Referred to, Battini v. Gye, 1876, 1 Q. B. D. 187 ; Budgett v. Binnington, 1890, 25 Q. B. D. 326; [1890], 1 Q. B. 35.] Cornwall, to wit,-Be it remembered, that heretofore, to wit, in Easter term last past, before our lord the King at Westminster came Stephen Peeters by Richard Halse his attorney, and brought here into the Court of our said lord the King then there his certain bill against Richard Opie gent, in the custody of the marshal, &c. of a plea of trespass on the case; and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit: Cornwall, to wit, Stephen Peeters complains of Richard Opie gent, being in the custody of the marshal of the Marshalsea of our lord the King before the King himself: for that whereas the said Stephen, on the 1st day of September in the 22d year of the reign of our Lord Charles the 2d, now King of England, &c. and long before, was and yet is a mason ; and whereas also afterwards, to wit, on the day and year aforesaid, at Bodmyn in the said county, in consideration that the said Stephen, at the special instance and request of the said Richard Opie, would build and erect for the said Richard the 1142 PEETERS V. OPIE 2 WMS. SAOTTD. 347. walls of three houses [347] for pigs, and would cleanse and build the walls of the said houses for the said Richard, he the said Richard undertook and then and there faithfully promised the said Stephen, that he the said Richard would well and faithfully pay and satisfy the said Stephen thirty shillings of lawful money of England when he should be thereunto afterwards requested. And the said Stephen in fact says that he the said Stephen afterwards, to wit, on the 2d day of October in the said 22d year of the reign of our said lord the now King, at Bodmyn aforesaid, did build and erect for the said Richard the walls of the said three houses, and did likewise cleanse and build the walls of the said houses. And whereas also afterwards, to wit, on the 4th day of October in the 22d year of the reign of our said lord the now King, at Bodmyn aforesaid, a certain discourse was had and moved between the said Stephen and the said Richard, as well concerning the pulling down and prostrating the walls of the houses of the said Richard before then built, as concerning the building and erecting of a malt-house and an out-house called a linny or dry-house, in the places in which the walls of the said houses were built: whereupon afterwards, to wit, on the day and year last-mentioned, at Bodmyn aforesaid in the county aforesaid, it was agreed between the said Stephen and the said Richard, that the said Stephen should pull down and prostrate the walls of the said three houses before then built and erected as aforesaid, and in the places in which the said walls were erected should build for the said Richard a malt-house and an out-house called a linny or dry-house for the said Richard, and should cover the said malt-house and out-house with slates or rags, and that the said Richard should pay to the said Stephen for his labour in and about tha pulling down and prostrating of the said walls, and the erecting and building of the said malt-house and out-house, 81. of lawful money. And thereupon afterwards, to wit, on the day and year last mentioned, at Bodmyn aforesaid, in consideration that the said Stephen, at the special instance and request of the said Richard, undertook, and then and there faithfully promised the said Richard to perform the said agreement in all things on the part of the said Stephen to be performed according to the form and effect of the said agreement, he the said Richard undertook and then and there faithfully promised the said Stephen that he the said Richard would well and faithfully perform the said agreement in all things on the [348] part of the said Richard to be performed. And the said Stephen in fact says, that he, always from the time of making the said agreement hitherto, was ready and offered to perform the said agreement mi all things on his part to be performed; yet the said Richard not regarding his said several promises and undertakings, but contriving and fraudulently intending craftily and subtilly to deceive and defraud the said Stephen in this behalf, has not paid to the said Stephen either the said 30s. first above mentioned, or the said 81. in the said agreement above specified, amounting in the whole to 91. 10s., or any part thereof, nor has in any wise satisfied him for the same, (although to do this he the said Richard afterwards, to wit, on the 1st day of March in the 23d year of the reign of our said lord the now King, at Bodmyn aforesaid in the county aforesaid, was requested by the said Stephen,) but the said Richard, to pay to the said Stephen the said 91. 10s. or in any wise to satisfy him for the same, has hitherto altogether refused, and still does refuse, to the damage of the said Stephen of 201.; and therefore he brings suit, &c. And now at this day, to wit, on Friday next after the morrow of the Holy Trinity in this same term, until which day the said Richard Opie had leave to imparl to the said bill and then to answer, before our lord the King at Westminster comes as well the said Stephen by his said attorney, as the said Richard Opie by John Tremayne his attorney; and the said Richard Opie defends the wrong and injury when, &c. and says that he did not undertake in manner and form as the said Stephen above complains against him, and of this he puts himself upon the country, and the said Stephen thereof likewise &c.: therefore let a jury thereupon come before our said lord the King at Westminster, on Wednesday next after three weeks of the Holy Trinity, by whom, &c. and who neither, &c. to recognize, &c. because as well, &c. the same day is given to the parties aforesaid there. Afterwards the process thereof is continued between the parties aforesaid of the plea aforesaid, by the jury being respited between them, before our said lord the King at Westminster, until Monday next after three weeks of St. Michael thence next following, unless His Majesty's 2 WMB. BATOD. S49. TRIN. 23 CAR. II. REGIS 1143 justices assigned, to take the Assizes in the county aforesaid shall first [349] come on Tuesday the 22d day of August at Launceston in the said county, according to the form of the statute in such case made and provided, for default of the jurors, because none of them did appear: at which day, before our said lord the King at Westminster, comes the said Stephen by his attorney aforesaid; and the said justices of our said lord the King oi Assize, before whom the said issue was tried, have sent hither their record had before them in these words, to wit: afterwards, on the day and at the place within contained, before Sir John Vaughan Knt. Chief Justice of our said lord the King of the Bench, and Lawrence Swanton Esq. for this time associated to the said Sir John Vaughan and Sir Eichard Rainsford, Knt. one of the justices of our said lord the King assigned to hold pleas before the King himself, justice of our said lord the King, assigned to take the Assizes in the county of Cornwall, according to the form of the statute, &c,, the presence of the said Sir Richard Rainsford not being expected, by virtue of His said Majesty's writ of si mm omnes, comes the within-named Stephen Pesters by his attorney within mentioned, and the within-named Richard Opie, gent., although solemnly required, comes not, but makes default: therefore let the jurors of the jury, whereof mention is within made, be taken against him by default: and the jurors of that jury being summoned, some of them, that is to say, M. R. and T. M. come and are sworn upon that jury ; and because the residue of the jurors of the same jury do not appear, therefore others of the by-standers are appointed anew by the sheriff of the said (I) county, whose names are annexed to the within-written panel, (1) There seems to be an omission here of some essential words: the usual form of the entry of the tales, after the word by-standers, is this: " being chosen by the sheriff of the county aforesaid, at the request of the said (either plaintiff or defendant) and by the command of the said justices, are appointed anew," &c.; which form appears to be material and necessary; for a tales can only be appointed at the request of one of the parties, as appears by the statute 35 H. 8, c. 6, hereafter mentioned: and if neither of the parties requests a tales, the cause must go off for want of jurors. As where the defendant's counsel, perceiving a mistake in the record whilst the jury were swearing, said they would...
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