[The Case of Field v. Lambert, Continued, December 1758.] 1
2 Horses—10th. of Octr. 1758. One Pound L.M.
To answer J[oseph] F[ield] &c. in a Plea of Trespass, for that the said Luke [Lambert], at Braintree aforesaid, on the 10th of last Octr. with Force and Arms entered the said Joseph’s Close there, and there and then with force and Arms drove away and rescued from the said Joseph Two Horses which the said Joseph had taken up in his Close aforesaid, Damage Feasant, and was about to drive to the public Pound in said Braintree, which Rescous is against the Law of the Province, made in the Tenth Year of the Reign of William the 3rd, intituled an Act for Providing of Pounds and to prevent Rescous and Pound Breach, whereby amongst other Things it is enacted, That if any Person shall rescue any Horses, taken up damage-feasant, out of [the] Hands of a Person being about to drive them to the Pound; whereby the Party injured may be liable to lose his Damages and the Law be eluded; the Party so offending shall for such Rescous forfeit and [pay] the sum of 40s. to the Use of the Poor of the Town or Precinct where the offence is committed; besides all just Damages unto the Party injured;2 and an Action hath arisen to the said Joseph to recover the said 40s. aforesaid forfeiture to the Poor, and the Damages which he the said Joseph hath sustained by the said Rescous which he says is equal to Twenty shillings more of the said Luke, which sums so forfeited and due, the said <George> Luke, tho often requested, hath not paid nor either of them, but unjustly refuses to do it, to the Damage of the said Joseph as he saith Three Pounds.
1. This entry is a partial draft of the declaration in the case of Field v. Lambert; see the Editorial Note on this case, p. 82–89, and references there.
In the MS, page {24} was at one time folded over or placed on the outside of the Diary Fragment when the document was folded laterally and stored. Two results were serious fading of the text at the creases and tears along the edges. The lateral folding exposed a small interval of blank space below the draft of the declaration and its revision (second entry below), and it is in this space that the two notes about the authorship were written in the 19th century, the first attributing the Diary Fragment to Royall Tyler, and the second disclaiming his authorship. These docketing notes are quoted in the Introduction, p. 7.
2. Act of 10 June 1698, c. 6, §4, 1 323: “[I]f any person or persons shall rescue any swine, neat cattle, horses or sheep taken up as aforesaid [i.e. “found damagefeasant in any corn-field or other inclosure” (same, §2)], out of the hands of the haward or other person being about to drive them to the pound, whereby the party injured may be liable to loose his damages, and the law be eluded, the party so offending shall for such rescous forfeit and pay the sum of forty shillings to the use of the poor of the town or precinct where the offense is committed, besides all just damages unto the party injured; to be recovered by action, bill, plaint or information in any of his majesty’s courts of record.”