SOME Animadversions Upon a CASE inserted in a BOOK lately Printed, Entitled Modern Reports. OR SELECT CASES,  
Adjudged in the Courts of Kings-Bench, Chancery, Common Pleas and Exchequer, since the Restauration of His Majesty King CHARLES the Second.  
LONDON, Printed for the Author, 1682.   

THe Author of this Book, I believe, is a Gentleman and a Person, that did not design the prejudice of any Gentleman, whose Case he hath printed; But there are so many Mistakes and Errors in the Case I have pitched upon, which is a Case so remarkable and notorious for severity, and knowing not how far those Errors and Mistakes might extend, to the farther Disadvantage of the Gentleman concerned; I looked upon myself obliged in Charity to correct and amend, and as I do it in Charity to the one, so in Civility and Respect I shall do it to the other.   

The Case I have singled out from the Herd, is the Case of Stephen Mosdel Esqr. late Marshal of his Majesty's Court of Kings-Bench, who had Summum Jus, this Gentleman the Reporter in his Book Fo. 116.  
SEts out, that an action of debt was brought against Mr. Mosdel for the Escape of Reynel, the Plaintiff said, that he could prove, that he was in London three long Vacations: Whereas in truth the Plaintiff was a Lady of Quality, who never endeavoured to prove Reynel to be in London any one Vacation whatsoever, but insisted on a habeas Corpus ad testificand. at the Assizes in Exeter; in the same Fo. he saith, that Mr. Justice Twisden said, the Marshal could not give in Evidence a fresh pursuit, but it must be pleaded, the contrary whereof was very well known to all the practisers of that Court, that that Reverend and Learned Judge was never of that opinion, for he always declared that upon a Nil debet pleaded a fresh pursuit, and a reprisal might be given in Evidence: And then he saith, that Hales said, that he always let them give a fresh pursuit in Evidence upon a Nil debet, which is so notoriously untrue, that all persons of business and practice know, that Hales would not allow of a fresh pursuit and a reprisal, but when it was specially pleaded, than this Reporter falls off a little abruptly, and saith, so they gave Evidence of a habeas Corpus ad testificand. and that the Prisoner went down too long before hand, and stayed too long after the Assizes. Now it will clearly appear, that our Reporter was mightily mistaken, for he saith, that the Prisoner stayed too long after the Assizes (hinc illae Lachrymae) indeed that is too true, for the Prisoner never returned to the Prison, nor never will, for he died of the Smallpox in Devonshire, some few miles beyond Exeter in the time of the Assizes. And then he farther saith that he went back threescore miles beyond Wells, I suppose he means his Ghost, or some Daemon in form or shape of the Prisoner traveled from Assizes to Assizes, to lead the Witnesses into perjury; after some other remote expressions he concludes, that Hales (as he calls him) said we are made Engines of doing all the mischief, if this should go unpunished being by Colour of a habeas Corpus; so the Jury (saith he) brought in a Verdict for the Plaintiff, who declared in debt for six thousand and two hundred pounds; now to charge so great a man as the Lord Chief Justice Hales with an expression of so great uncharitableness, and so contrary to what he so publicly declared, makes this Reporter to be more bold than modest, notwithstanding the fair pretences in the Exordium of his Book. For the Lord Chief Justice Hales, as will appear hereafter by several depositions taken upon oath in the high Court of Chancery declared, that if he had brought the action of debt against Mr. Mosdel as the Lady Lutterel did and should recover, if he should take one six pence of it, he believed it would be a Canker to his whole Estate, and farther declared that if the Lady had brought an action on the case for damages, she had done well, for he believed the Jury would have given very small damages in a case of that nature, and as the proofs appeared on both sides to the Court.  
That the world may be better informed, and may know that this Gentleman's miseries sprang from another Source, the ensuing Narrative is truly and faithfully penned.  
Mr. Mosdel Marshal of his Majesty's Court of Kings-Bench, by habeas Corpus ad testificand. at the the Assizes to be held at Exeter, which was granted and signed by Mr. Justice Raynsford and Mr. Justice Morton, the tenor whereof followeth in haec verba.  
Carolus Secundus Dei gratiâ, Angliae, Scotiae, Franciae, & Hyberniae Rex fidei Defensor etc. Marischallo Maresc. nostrae coram nobis saltm.  
percipimus tibi quod Corpus Georgij Reynel Ar. in personâ nostrâ sub Custod. tuâ ut dicitur detent. sub salvo & secur. conduct. habeas coram Justice. nostris ad prox. Assias. tent. apud Exon in Com. devon. decimo octavo die Martij prox. futur. ad testificand. ea omnia. & singla. juxta vetam scientiam & notitiam suam quae sciverit in quadam materiâ Controversiae in Curiâ nostrâ coram nobis jam penden. indeterminat. inter Johannem Trobridg quer. & Ursulam Francis vid. defendt. & tunc ad redeund. prisonae perdict. sub salvo conduct. immediate post testimon. pro perdict. Georgium Reynel perfat. Justice. ad tunc & ibidem.  
dat. & habeas ibi tunc hoc bre. T. Matheo Hale mil. apud Westm. 12 Die Febr.  
Was commanded as appears by the said writ to carry the said George Reynel to Exeter, and he was carried thither, but a convenient time before the Assizes, all accidents considered that might happen in so great a Journey, when he was brought to Exeter by the Tipstaffs of Raynsford and Morton, who had the Charge of him by the Command and Appointment of the said two Judges, as well as of Mr. Mosdel, Reynel pretends that he must go to his own House, which was some few miles beyond Exeter to peruse some writings to inform his memory, otherwise he was not able to give Evidence in the Cause, the Tipstaffs told him that they could not consent to any such thing, for their Authority was only to carry him to Exeter, and if he went beyond Exeter it would be an Escape, but Reynel being in his own Country and within the Ring of all his Friends and Relations makes his Escape to his own House, the Tipstaffs immediately pursued him, and at his House overtook him, but the same Night he came thither he fell sick of the Smallpox, and thereof died in their Custody in three days time, which happened to be in the time of the Assizes.  
Whereupon, the Lady Lutterel as administratrix durante minor. aetate of Mr. Alexander Lutterel her second Son brought an action of debt against Mr. Mosdel, and by the strict and severe Rules of Law, the going of Reynel beyond Exeter was declared to be an Escape, and accordingly the Jury so found it.  
This severe and heavy Verdict being given against Mr. Mosdel, he was forced to surrender his Office and to secure his Person in obscure places, whereby he lost the benefit of an active Life whereunto he was always bred, to the loss of above ten thousand pounds to himself and family, and still is kept under the same Calamity.  
Now certainly to all rational and charitable Persons the severity is clear and evident, that a man by some small neglect or inadvertency of his servants should himself and family be ruined and undone by his being made subject and liable to pay 6200 pounds, when the Plaintiff received no damage, the Prisoner would have died at the same time he did, if Mr. Mosdel had kept him in Ferris: Mr. Mosdel at the same time was but a servant to the Court, and must give obedience to their rules and habeas Corpus', and when two Judges of the Court shall command him to carry a Prisoner 140 miles from his Prison, it cannot be presumed or intended, that Mr. Mosdel could have that care of him at so great a distance as he could, when he had him always in his Eye.  
How such cruel Carriage one towards another can accord with Christian Religion, or with that natural pity which God hath placed in the bowels of mankind I know not? In the time of Augustus it was decreed, that the insolvent debtor should quit all his goods, but not suffer chains, nor slavery, not do labour for his Creditor, but the benefit of this Law extended not to prodigal and vain Persons, but to those only qui vi majore aliquâ fortunis evertebantur, persons that were undone by any great violence, by shipwreck or fire or any accident unavoidable, or men who were per vim majorem eversi not poor by vice, but by misfortune and the divine providence.  
When mercy and Charity was so far extended before Christianity was established and settled, what mercy and Justice ought to be shown by us that are Christians, we know that cruelty, violence and injury is against natural Justice and Humanity, and when we have or aught to have a prospect of another and a better being, we ought to act and behave ourselves here that we may not fail of it hereafter.  
Here is a Gentleman, his Wife and Children ruined and undone, and for what? why, because his servants without his consent or knowledge, and contrary to his order by some slender negligence or inadvertency, suffered the Prisoner to go a few miles beyond the place where they were ordered and authorized to carry him, and there the Prisoner died of the Smallpox, what damage happened to the Creditor of this prisoner by this, even none at all; must a man, his wife, children and family be utterly ruined and undone for this, by the strict and severe rules of law, this is an Escape, and the Prisoner being in Execution the Statute of Westm. the 2 Ca 11 gives an action of debt to the Creditor against the Keeper or Marshal, but this is to be understood, when the Prisoner shall run quite away, or shall not be retaken before a Declaration or an Original filled against the Keeper or Marshal, the the Lord Coke saith in his 3 Book fo. 44 that inasmuch as Escapes are so penal to Sheriffs and Bailiffs of Liberties, the Judges of the Law have always made a  Construction, as much as the Law will permit in favour of Sheriffs and Bailiffs of Liberties, who are Officers and Ministers of Justice. But the chief Justice before whom this Cause was tried was of opinion, that as he was a Judge of Law, he ought without mixture of mercy to proceed according to the strict and severe rules of Law, otherwise he thought he was guilty of the breach of his oath. But the saying and advice of a great Chancellor to Sir H. Montague, when he was sworn Chief Justice of the Kings-Bench, was thus: As it is a fault saith he in a Judge to be too remiss, and too tender and soft in punishing offences; so it is a fault as great or greater to be too sharp or severe, for you know saith he, who saith Noli esse nimis Justus, and Severitas strained too far, sometimes becomes Saeva veritas, if not Saeva crudelitas, Moores Reports fo. 827.  
Mercy is the greatest mark of the Elect and predestinate Persons in the world, mercy is an Attribute, in the manifestation of which, as all our happiness consists, so God takes greatest Complacency and Delights in it above all his other works he punishes, to the third and 4th. Generation, but shows mercy unto thousands we are called to our approximation to God by the practice of this grace; cruelty and severity in men's actions runs counter and is opposite in all its Analogies to this Cardinal virtue, and he that acts with a rigid and inflexible severity, will certainly draw vengeance upon himself from the tribunal of divine Justice, how can any man expect mercy from God, (whereof every man every hour stands in need,) when he will show none to his Brother; our Blessed Saviour commands us to forgive our Brother Seventy times seven times, which is four Hundred and Ninety times, when he asks our pardon and implores our mercy, and since the divine mercy is or aught to be the pattern of ours by way of precedent and by way of reward, God will certainly forgive us as we forgive our Brother and no otherwise, which is proved by these four words Dimitte nobis sicut dimittimus from whence it follows, that to pardon and forgive is not so much an Election of Virtue, as an absolute Necessity of Salvation.  
But this being a discourse out of my Sphere (tho' not out of my practice) I shall wave, and shall set out and declare the great care this Gentleman had in the safe keeping of this Prisoner, as doth appear by the following depositions taken upon Oath in the High Court of Chancery.  
William Hooper one of the Tipstaffs deposeth, that he doth know that George Reynel was kept a Prisoner very strictly, and not suffered to go abroad but by rule of Court or habeas Corpus; and farther he doth know, that the said George Reynel during the time of his Imprisonment was a necessitous person, and in need of money, insomuch that he wanted money to maintain himself in Prison with Necessaries, and the said Hooper farther deposeth, that he does know that the said George Reynel was carried down to the Assizes, held at the Castle in Exeter by virtue of a habeas Corpus Test. the 12th. of Febr. in 24th. Year of His now Majesty's Reign, and he this Deponent was ordered by the Marshal to carry him down, and was charged by the Marshal to take great care, that the said Reynel did not escape. And he farther deposeth, that the said George Reynel was not very well during his Journey to Exeter, and when he came to Exeter being ill, he pretended that he had some Papers or Writings at his House, which was some miles distant from Exeter, which he must needs go thither to peruse, and this Deponent desiring him to forbear going thither, the said George Reynel said he must go home to see some Writings for the helping of him in the Testimony he was to give at the Assizes, for the days and times the things were done, and this Deponent perceiving he was resolved to go to his House, and this Deponent being not able to resist him nor to dissuade him from it, was forced to give him good words for fear he should run quite away, but notwithstanding, the said Reynel did departed from him towards his own House he being then sick, and on the way several Pimples broke out upon his hands and face, which he thought were some heats. And this Deponent upon his Oath deposeth, that upon his the said George Reynel departing from Exeter, he this Deponent did immediately follow him, but when they came to the said George Reynel his House, the said Reynel was their immediately taken very sick of the Smallpox, insomuch that he could not be removed, and there in the time of the Assizes died of the Smallpox in the Custody of this Deponent his Keeper; this Deponent being in the House all the time he lay sick; and this Deponent farther deposeth, that the Judge of Assize at Exeter being informed of the death of the said Reynel, did thereupon order the Body of the said Reynel to be brought up to the Kings-Bench Prison, which was done accordingly, and there after an Inquisition taken by the Coroner, he the said Reynel was buried in St. George his Church in Southwark at the Charge of M. Mosdel.   

The Depositions of Thomas Hodgkin, Gent.  
Who deposeth, that George Reynel was not suffered to go abroad but by rule of Court or habeas Corpus, and this Deponent is well assured that the said George Reynel was a true Prisoner, and that he did never to this Deponents knowledge go abroad but by rule of Court or habeas Corpus, the which this Deponent is the better able to depose, for that he this Deponent was a Prisoner in the Custody of the Marshal at the same time, that he the said George Reynel was, and was very much conversant with him; and this Deponent farther deposeth, that the said George Reynel during the time of his Imprisonment, was in want of money, and knows that he did borrow money for Necessaries whilst he was in Prison of one Mr. Marshal & Others; and this Deponent farther deposeth, that he was present at the Trial for the Escape of the said Reynel, and this Deponent did conceive and apprehend that the Escape upon which the Verdict then passed against the Marshal, was only upon the going of the said Reynel from the place where the Assizes were to be kept, and his dying of the Smallpox, and this Deponent doth verily believe, that the Plaintiff (now defendant) as the Case truly is could not be damnified a farthing by the Escape, this Deponent farther saith, that the Lord Chief Justice did declare openly in Court in regard it was an action of debt, and could not be separated by the strict Rules of Law, that it was a very hard Case on the Marshal, and very much pitied him, he the said Lord Chief Justice declaring, that he would not be the better by six pence for any such recovery if it were his Case, lest it should prove a Canker to his whole Estate, and the other Judges were much troubled for the Marshal by reason it was a hard Case on him. And this Deponent farther saith, that he doth remember that he heard Mr. Sergeant Maynard who was of Counsel for the Plaintiff (now Defendant) declare, that he did not nor could not charge the Marshal with any corruption in his Office.   

The Depositions of John Marshal Merchant.  
Who deposeth, that he did know George Reynel of Malstone in the county of Devon Esq whilst he was a Prisoner in the custody of Mr. Mosdel, and this Deponent doth know that the said Reynel was kept a Prisoner very strictly, and was not suffered to go abroad but by habeas Corpus or rule of court in Term time, and he farther deposeth, that the said Reynel during his Imprisonment was a very necessitous Person, and in want of money to maintain himself with Necessaries, and this Deponent farther saith, that he was at the Trial of the cause for the Escape of the said Reynel, and he doth well remember that the Lord Chief Justice did declare, and say it was a hard case upon the said Mr. Mosdel, and afterwards did declare, that it was so hard a case, that if it were his own he would not be six pence the better by bringing such an action.   

The Depositions of Joseph Stretch Clerk, aged Seven and Thirty Years or thereabouts.  
Who deposeth, that he was present at the Trial of the Cause against Mr. Mosdel for the Escape of Reynel, and did apprehend, that the Escape upon which the Verdict passed against M. Mosdel, was only the going of the said Reynel out of Exeter, and his dying of the Smallpox during the time of the Assizes, and this Deponent doth not believe that the Lady Lutterel as the case truly is could be damnified by the said Escape, and this Deponent doth remember that the Lord Chief Justice did two or three times openly declare in Court at the Trial, that it was a hard case, and also did declare and say, that if it were his debt he would not receive six pence for fear it should canker his Estate or to that or the like effect; and this Deponent farther deposeth, that Mr. Serjeant Maynard who was of Counsel with the Lady did declare in open Court, that he did not nor could not charge the said Mr. Mosdel with any corruption in his Office, or to that effect.   

The Depositions of Tho. Chelsam Gent.  
Who deposeth, that he was present at the Trial of the Cause against Mr. Mosdel, for the Escape of Reynel, and doth remember that the Judges did declare, that it was a hard case, and particularly the Lord Chief Justice did declare, that it was a hard case, and said, that if it were his case and he should recover a Verdict he would not be any thing the better for it or to that effect, and this Deponent saith, that several of the Jury, as this Deponent was informed by them, were much troubled and did weep when they concluded to give in their Verdict against Mr. Mosdel, by reason the case was so hard upon him, and to consider that a man should be ruined upon so great a strictness in the Law, and that they hoped the Plaintiff would not be extreme with the Defendant Mr. Mosdel, but would accept of some small matter from him.  
There are several other Depositions made by several other Persons in the High Court of Chancery to the same purpose and effect, which would be too tedious to insert. I hope these will be sufficient to satisfy any charitable person of the unparallelled severity of this case, I shall only here insert his own Affidavit made before one of the Judges of His Majesty's Court of Kings-Bench, and in a few words more shall conclude without any farther trouble to the courteous Reader.  
Stephen Mosdel of the Inner Temple London Esq maketh oath, that during the time of the Imprisonment of George Reynel, he the said George Reynel seemed to be very poor, and oftentimes declared that he wanted money to supply his necessary Occasions, and this Deponent upon oath farther deposeth, that he never had or received from the said George Reynel, or of any other Person or persons by his Order during his Imprisonment, or at any time before or after, the sum of forty Shillings in money, nor never had any thing whatsoever to his knowledge for a year & an halfs Diet, Lodging, Chamber rend and fees, other than a Horse and a Dog, which were valued at Twenty pounds or thereabouts, which never were worth to him this Deponent ten pounds, which is all that he this Deponent ever had of the said George Reynel directly or indirectly, and this Deponent farther deposeth, that he never had any acquaintance or intercourse with the said George Reynel, till he the said George Reynel was committed a Prisoner in Execution to him this Deponent.  
It may be asked why Mr. Mosdel having so charitable and so commiserative a case, and a Case that justly lays claim to a relief in Equity, did not exhibit his Bill in the High Court of Chancery to be relieved? It is answered, that Mr. Mosdel did bring his Bill in Chancery, but the Defendant by the cruel (I will not say unjust and unchristianlike advice of her Counsel) pleaded in Bar to his relief the Statute of 4 H. 4, by which it is enacted, that no Judgement given in any of the King's Courts shall be called in question, till that Judgement be reversed by Writ of Error or Attaint, by pleading and insisting upon this Anti-equitable Plea, the hands of the Right honourable the Lord Chancellor were restrained from giving any manner of relief, to his most humble and immense oppressed Orator.  
It may be then farther asked, why Mr. Mosdel did not exhibit his Bill in Chancery before the Verdict was given against him at common Law? I shall answer, that his Counsel were of opinion, that the immediate pursuit of the Prisoner from Exeter to his House, and his dying there in the Custody of his Keepers would have excused the Escape, and that he had no reason to seek a Remedy in Equity, when the Law would help him, and properly a man is to seek his Salve when he hath received his wound.  
The reporter may say, that here are not only Animadversions, but here is also a Sermon of Mercy and Charity, if that be his opinion I would have him to consider, that when a man and his Family shall for a Trifle be ruined and undone by the Razor mettled cutting rigorous, proceeding upon that penal Statute of Westm. 2 Ca 11, and by the Statute of 4 H. 4 Ca 23 and the Statute of Praemunire, which is the Statute of 27 Ed. 3 Ca 1. the Olive Doors of Mercy, Equity, and good Conscience shall be looked up and no relief to be had, there is no remedy left but an Appeal to the great Tribunal of divine Justice, where every man's merits and demerits shall have a plenitude of rewards and punishments.  
I have been oftentimes in the Company of this unhappy Gentleman Mr. Mosdel, since and before this severe thing happened upon him, and when we have discoursed of this matter and of this severe prosecution, he never would speak a word that might reflect upon the Lady, but would always say she was put upon it by her Attorney, not out of kindness to her or malice to him but for his own interest, and to get money to himself, how he hath prospered with it since is well known, he hath also often declared that although the Lady was severe and hard in the prosecution, yet she was not so in the Execution of that sharp and cruel Verdict, for he could never find or discover that she did ever endeavour to arrest him. But he complained that she kept him in fear, and he dare not follow any public employment for the support of himself and family, which was as bad or rather worse than an Imprisonment, which he thought the Lady did not understand or else might be misinformed, that which supported him in all these difficulties and obscurities of life for almost these Nine years last passed, was the great hopes he had in the young Gentleman, to whom the Lady was during his Minority Administratrix, that he, when he came of age would take this melancholy and cruel Case into his charitable and merciful consideration, and not suffer a calamity of such a nature, and for so trivial a matter to remain and continue on a Man and his Family to their ruin and destruction, when he never by any single act of his suffered the loss of Six pence; neither had Mr. Mosdel as he hath often declared to me, any reason to show any kindness to Reynel, whereby to expose himself to any danger or to do any ill thing to the Lady, for he never had any manner of acquaintance with or knowledge of Reynel, till he was committed to him a Prisoner, and after he was committed he was so poor and necessitous, that he wanted necessaries, as doth appear by the Depositions and Affidavit before mentioned.  
But now the Gentleman is come of age, and Mr. Mosdels' hopes will have their determination, either by the discharging him of this heavy burden, where under he hath groaned almost these Nine years, or by the continuance of the Weight sink him and his Family into greater miseries. He that hath been in the Company of this Gentleman must acknowledge, that nature hath been very prodigal in her favours to him in all respects, from whence Mr. Mosdel may almost assure himself of his Equity, and that after so long continued a storm and tempest, by the sweet gales of a merciful and a charitable Breath, he may arrive into a quiet and peaceable Harbour. It is never seen, that dirt and trash is lodged and placed in rare and curious Cabinets, but Jewels of great value, and certainly there are Jewels of great value lodged in the Breast of this worthy Gentleman, such as will lead him into an Enquiry into this matter, and to do and to act therein as every Christian and Gentleman ought to do, and to act one towards the other, which are the hearty wishes of  
L. C. Philalothis'.   

ERRATA.  
In page 3. lin. 25. instead of or put and, p. 4. l. 10. r. only one the, idem at the end of the Habeas Corpus add Anno Regui nostri xxiiijo.  
FINIS.