nam

*

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last past and divers other dayes and times the felonies of Witchcraft in and upon the bodyes of Abigail Williams, Ann PuttMercy Lewis, Mary Walcott and Elizabeth Hubbard of Salem Village * * * single women; whereby their bodyes were hurt, afflicted, pined consumed and tormented contrary to the forme of the statute in that case made and provided. To which Indictm'ts the said Bridgett Bishop pleaded not guilty and for Tryall thereof put herselfe upon God and her Country whereupon she was found guilty of the Felonyes and Witchcrafts whereof she stood indicted and sentence of Death accordingly passed ag't her as the Law directs. Execution whereof yet remaines to be done. These are therefore in the names of their maj'ties William and Mary now King and Queen over England &c. to will and comand you That upon Fryday next being the Tenth Day of this instant month of June between the hours of eight and twelve in the afornoon of the same day you safely conduct the s'd Bridgett Bishop al's Olliver from their maj'ties Gaol in Salem afores'd to the place of execution and there cause her to be hanged by the neck until she be dead and of your doings herein make returne to the clerk of the s'd Court and of this pr'cept. And hereof you are not to faile at your peril. And this shall be your sufficient warrant Given under my hand & seal at Boston the eighth of June in the fourth year of the reigne of our Sovereign Lords William and Mary now King and Queen over England &c., Annoq'e Dom. 1692. WM. STOUGHTON."

"June 10th, 1692.

According to the within written precept I have taken the body of the within named Brigett Bishop out of their majesties goal in Salem and safely conveighd her to the place provided for her execution and caused y sd Brigett to be hanged by the neck untill she was dead all which was according to the time within required and so I make returne by me.

GEORGE CORWIN,
Sheriff."

(See "Comment," a Legal Publication, by Co-Op. Pub. Co., for May, 1910, p. 229, for fac-simile of original warrant and return.)

154.

Arrest upon mesne process-Debtor's dungeon.

155. Action "on the case."

"Dromio of S. Hold, sir, for God's sake: now your jest is earnest.

Upon what bargain do you give it me?"1

Earnest, or Arles, as it is called, in Scotland, from the civil law word arrhae, is a small sum of money which is given in proof of the existence of the mutual consent, necessary to constitute a binding contract. It is not the earnest which makes the contract legal, but the mutual consent, evidenced by the earnest, which is the basis of the bargain. The earnest is only some evidence of the legality of the contract and it may be preserved. by an instrument of writing, or other evidence, in case the earnest is dispensed with. The original view of earnest, by the common law of England, was that it was a small portion of the price, in token of the conclusion of the contract,3 and this view seems to prevail to the present day, so that the earnest paid is entitled to be credited on the contract price, as a part payment, however small it may have been.*

1 Comedy of Errors, Act II, Scene II.

2 Lawson, Contracts (3d ed.)

Coke, Inst., b. iii, tit. iii, s. 5; Story, on Sales, p. 216. 'Ante idem.

Sec. 151.

Attachment.

"Mer. You know, since Pentacost, the sum is due,
And since I have not much importun'd you;
Nor now I had not, but that I am bound
To Persia, and want guilders for my voyage;
Therefore, make present satisfaction,

Or I'll attach you by this officer."

To attach is to take into the custody of the law the person or property of one already before the court, or of one it is sought to bring before the court. The writ is in the nature of a criminal process and issues from a court of record to a Sheriff or other officer commanding him to bring the person named in the writ before the

court.2

Of course at the time of Shakespeare, in England, the law permitted the creditor to obtain a writ for the imprisonment of his insolvent debtors and this law continued in effect in the United States, until the different states abolished same by special statutes and organic law.*

In Two Gentlemen of Verona, the following occurs: "Speed. No believing you, indeed sir.

earnest?

But did you perceive her

Valentine. She gave me none, except an angry word."

(Act II, Scene I.)

Lear is made to say, to Kent, in King Lear: "Now, my friendly knave, I thank thee. There's earnest of thy service."

(Act I, Scene IV.) "Master, I

Boult is made to say, in Pericles, Prince of Tyre:

have gone through, for this piece, you see.

if not, I have lost my earnest."

If you like her, so; (Act IV, Scene II.)

'Comedy of Errors, Act IV, Scene I.

23 Bl. Comm. 280; 4 idem. 283; Strange, 441.

'It has been claimed that prior to the statute of Hen. III, the debtor could not be arrested at common law, for failure to discharge his debt (Sir Wm. Herbert's case, 3 Co. 11; Palgrave's Rise and Prog. of Eng. Com., book 1, p. 181), but this is denied by Bracton and Reeves. Bracton, 440, 441; II Reeve's Hist. Eng. Law, pp. 439, 440.

Imprisonment for debt, was abolished by statute in N. Y. Apr. 26th, 1831; in Massachusetts, in 1834; in Pennsylvania, 1835; in Mississippi, in 1839, and in Tennessee, in 1840.

Hence, at the time this play was written, it was within the power of a merchant to arrest his debtor, for a failure to satisfy a debt, admitted to be due and the attachment by an officer was the legal process adopted for the purpose.1

Sec. 152. Arrest.

"Ang. Here is thy fee; arrest him officer;

I would not spare my brother in this case,
If he should scorn me so apparently.
Off. I do arrest you, sir; you hear the suit."2

To make an arrest is to deprive a person of his liberty, by legal authority; to seize him and detain him in the custody of the law. At the time this play was written

12 Kent's Comm. (12th ed.) 397.

In Comedy of Errors (Act IV, Scene I) Angelo said to Antipholus: "Ang. This touches me in reputation: Either consent to pay this sum for me, or I attach you by this officer."

And Antipholus said to the Officer: "Ant. That I should be attached in Ephesus: I tell you, 'twill sound harshly in her ears." (Comedy of Errors, Act IV, Scene IV.)

In King Richard II, York said to Bolingbroke: "York.

. . But, if I could, by him that gave me life, I would attach you all and make you stoop

Unto the sovereign mercy of the king." (Act II, Scene II.) Before arresting Buckingham, in King Henry VIII, Brandon said: "Bran. Here is a warrant from the king to attach Lord Montacute." (Act I, Scene I.)

Sicinius attempts to arrest Coriolanus, with this language: "Sic. Go, call the people; (Exit Brutus.) in whose name, myself, attach thee, as a traitrous innovator, a foe to the public weal." (Act III, Scene I.)

Paris tells Romeo, on attempting his arrest for despoiling the grave of the Capulets:

"I do defy thy conjurations,

And do attach thee as a felon here." (Act V, Scene III.) The Watch, in Romeo and Juliet, gives direction: "Go, some of you, Whoe'er you find, attach." (Act V, Scene III.)

2 Comedy of Errors, Act IV, Scene I.

3 Bouvier's Law Dictionary.

it was one of the remedies furnished the creditor, against his debtor, whereby his person was taken and held as security for the payment of the debt due.1

Arrest and attachment are used interchangeably, but in strictness an arrest is the act resulting from the service of an attachment, and while an attachment applies as well to the taking of property, an arrest is used only in speaking of the seizure of persons.2

Sec. 153. Breach of promise.

"Ant. E. Good lord, you use this dalliance to excuse, Your breach of promise to the Porcupine."

1 Reeve's History, Eng. Law, pp. 439, 440; Bracton, 440. 2 Bouvier's Law Dictionary.

The Merchant directs the officer to arrest Angelo, in Comedy of Errors, as follows: "Mer. Well, officer, arrest him, at my suit. Off. I do; and charge you, in the Duke's name, to obey me." (Act IV, Scene I.)

Westmoreland arrests Archbishop of York, Hastings and Mowbray, in 2' Henry IV (Act IV, Scene II) with this speech: "West. Good tidings, my lord Hastings; for the which, I do arrest thee, traitor, of high treason: And you, lord archbishop-and you, lord Mowbray, of capital treason I attach you both."

The following occurs in the arrest of Falstaff, at the suit of the hostess, in 2' Henry IV (Act II, Scene I): "Fang. Snare, we must arrest sir John Falstaff.

Host. Yes, good master Snare; I have entered him and all."

"Fang. Sir John, I arrest you at the suit of mistress Quickly."

After denunciation of the traitors, in King Henry V, they were all ordered arrested and were taken into custody as follows: "K. Hen. . . Arrest them to the answer of the law and God acquit them of their practices. Exe. I arrest thee of high treason, by the name of Richard, earl of Cambridge.

I arrest thee of high treason, by the name of Henry, lord Scroop of Masham.

I arrest thee of high treason, by the name of Thomas Grey, knight of Northumberland." (Act II, Scene II.)

3 Comedy of Errors, Act IV, Scene I.