In addition to the authorities cited by the chief justice, the case of King v. Coffins, Park. Exch. Rep. 54, may be referred to as showing how the matter was then (1745) understood. That was an estreat made from the quarter session, as follows: "East Riding of the county of York: Of William Coffins of Brompton in the county of York, Gentleman, because he has not been of good behavior ever since the last general quarter sessions of the peace, held for the said Riding the fourth day of October last, before James Gee, Esquire, Sir Joseph Pennington, * * * and it being proved here this day, in open court, upon the oath of two witnesses, that since the last quarter sessions * * * the said William Coffins had been guilty of misbehavior — £ 100."
It was moved by counsel that this estreat be discharged, as illegally made upon proof, by two witnesses, that Coffins had misbehaved; and it was insisted that the sessions, in a summary way, could not try the, fact of misbehavior committed out of court; but the recognizance ought to have been removed into this court and a scire facias sued out, *Page 181 and a breach assigned which Coffins and his pledges might controvert by pleading to the scire facias. And of that opinion were the court, and so the estreat was discharged.
I agree that this action may be maintained. What measure of proof should be required of the stated at the trial we need not now inquire. The amendment suggested should be allowed, and the demurrer overruled.