case stout against Towler if a infant as next heir sue out a writ of appeal  and deliver it to the sheriff and the sheriff after guardian appoint and  before the return of the writ by collusion with the appellee induce the infant  and guardian to recall the writ and deliver it to they accord it be a contempt  of the process of the court for which he may be fine although the court be not  in possession of the writ until it be returnable and the guardian may  discontinue the appeal S c holt Spencer Cowper barrister at law justice of  peace and captain of the militia and one mason and Roger have be indict and  acquit in August before at Hartford modern report assize of the murder of S  stout a Quakerwoman a a appeal be bring within the year by a infant twelve  year old only next heir to the decease but he be not mention in the writ to be  a infant and deliver to the undersheriff tower clerk in tower absence the  appellant after the testae and before the return of the writ choose the  decease mother for his guardian before a see Langford v tiler salk Stockland v  Charland burr S c Norwood v Stevenson bull n p Hudson v burn Espinasse dig b  Manwaring v sand stram c see Mr Nolans note to the case of Bolton v apprentice  stram a see the trial of this very extraordinary cause state trial to saint Tr  to and saint Tr modern report er p holt chief justice in his chamber and she  be then and there accord admit after the writ be returnable the mother of the  appellant at the instance and procurement of Cowper come and demand the writ  of the sheriff and the sheriff without any assurance that the infant be the  appellant or that the party who come with he be his mother deliver the writ to  they who destroy it all this appear to the court by the sheriff own confession  and be be put to answer interrogatory confess further that he upon receipt of  the writ have send a copy of it to Cowper the defendant brother and likewise  notice to Cowper the defendant Cowper the appellees brother be king counsel  sir b shower and ware urge in behalf of the sheriff first that the infant have  no guardian at the time of the writ purchase it be not well sue out second  though it be right sue out yet the appellant have a right to come and recall  it and the sheriff ought not to deny to give it he for otherwise he will be  liable to a action if after such denial he execute the writ and thereby  subject the appellant to fine and imprisonment in case of acquittal vide Bulst  roll Rep latch that the sheriff in that case must take notice of the plaintiff  at bis peril and the appellant be a infant alter not the case for the law if  it enable he to sue out a writ will enable he to recall or discontinue it as a  feme covert levy a fine may lie the use of it and roll Abr a infant  discontinue the appeal in despite of the guardian three it be urge that this  court be not possess of the writ till the return for till then it be not pen  and therefore what be do in relation to it can be a contempt of the court or  examinable here fourthly the be of a guardian here be not material for he have  nothing to do till the writ be return and till then the sole right be in the  infant to which it be answer and resolve as to the first that there needs no  guardian till the writ be returnable for the use of a guardian be to pursue it  when it be before modern report the court and not as here to complain of the  officer for not make a return and that anybody may sue out the writ for the  infant as well as enter upon a seize of he and there be nobody in law who writ  it be before the return but the infant second one of age may come and recall  the writ but this be a infant it be otherwise and he can not release this suit  and if he at the return of the writ have be present in court and the guardian  not there he shall be nonsuit which put a end to the appeal latch and that  show that the infant after guardian choose have nothing more to do with the  matter indeed the court if they see occasion may suffer he to discharge his  guardian and disavow the action but that must be in court and the court may  refuse to do it if they see good reason in their discretion and if a infant  pen the suit in trespass c come of age and judgement be against he he shall be  fine the law in this case take care that the guardian such as the court shall  appoint shall sue for the infant and the court and law have the immediate care  of infant as not be able to help themselves and it be a odd thing that a  infant who can otherwise prosecute but by guardian shall be able to  discontinue his writ or that he by himself can discontinue out of court what  be can by himself continue in court and as to the three objection be say that  though the court have not possession of the writ till it be return yet sure  they may bring their officer to a account what writ he have returnable in this  court and punish he for any abuse in relation to they a and such misdemeanour  be a contempt of the court and he quote the case of one Starkey steward of  Windsor court where it be adjudge that a misdemeanour in a inferior court be a  offence against this court and the case of Henry pl be likewise quote by he  where a sheriff be fine forty pound for refuse to make a return and be say if  any sheriff in England have serve he so he will lie he by the heel and here he  say it be better in this case if the writ have mention the appellant to be a  infant however it be well without it and return the writ to the infant and a  stranger here be the same as if he have deliver it to a stranger if we suffer  this to go unpunished the a if after writ of error out and before return  execution be execute we will lie they by the heel note to former edition  modern report er p subject must expect but little justice for the sheriff  shall have it in their power to anticipate our justice and this be not a  private matter but the king be concern for though the appellant be nonsuit yet  the king shall proceed upon it and if the modern report appellee be acquit  before he must plead it for we can take notice of it and here he be judge in  contempt by holt chief justice and gold justice against Turton justice and  fine two hundred mark note in this case the year have expire they can not have  a new writ of course and for this they petition the Lord keeper for a new writ  who assemble Treby chief justice of the common plea sir John Trevor master of  the roll and Powell justice to advice of it who all agree it be discretionary  to grant one or no but agree it be not proper to do it some especial Treby  chief justice allege for reason that a appeal be a revengeful odious  prosecution and therefore deserve no encouragement on which occasion holt  chief justice with great vehemence and zeal say that he wonder that any  Englishman shall brand a appeal with the name of a odious prosecution that for  his part he look upon it to be a noble prosecution and a true badge of English  liberty and refer to the statute of Gloucester and the comment thereupon in  the second institute