William Ballard of Bristol merchant v. Hugh Priste of Hartland, Devon, merchant
Bristol attorneys: John Sebryght, Francis Stradlyng
Plaintiff in error’s king’s bench attorney: Richard Heywood
AALT images for Ballard v. Priste This action of error on a case concerning performance bond for
arbitration in the court of Bristol is extensive and detailed. It
illustrates the process a town court using the law merchant exercised
for handling matters against defendants not residing in the town. The
process also indicates the interaction possible in the course of such a
case with the king’s central offices by writ of certiorari and finally, in
the error process, the possibility of correcting a defective record by
asking for further certification from the court. The Bristol court
certified two particular customs of Bristol that deviated from common
practice, one the process for attaching non-residents, the other the
omission of continuances while a case was being examined by virtue of
a writ of certiorari, both thus not matters that would now be
considered part of substantive law. The lord king sent to the mayor and aldermen of the town of Bristol and
the mayor and constables of the Staple of the town of Bristol as well to
the sheriffs of the same town and the bailiffs of the mayor and
community of the same town of the Tolzey court as well as to the bailiffs
of the mayor and community of his pie powder court and each of them
his writ close in these words: Henry by the grace of God king of England and France, defender
of the faith, lord of Ireland, and on earth the supreme head of the
English church to the mayor and aldermen of the town of Bristol
and the mayor and constables of the staple of the town of Bristol as
well as to the sheriffs of the same town and to the bailiffs or the
mayor and community of the same town of his Tolzey court as well
as to the bailiffs of the mayor and community of his pie powder
court and each of them, greetings. Because in the record and
process as well as in the rendering of judgment of the plea that was
before you or any of you in our court of the abovesaid town
without our writ according to the custom of the same town between
William Ballard of the town of Bristol merchant and Hugh Priste
of Hartland in the county of Devon merchant concerning a debt of
£50 that the same William exacts from the aforementioned Hugh as
it is said manifest error intervened to the grave damage of the same
Hugh as we have accepted from his complaint, we, wanting the
error if any there was to be corrected in due manner and full and
swift justice to be done to the abovesaid parties in this part, order
you that if judgment has been rendered thereof, then send distinctly
and openly the record and process abovesaid with all things
touching them to us under your seals, and this writ, so that we have
them at one month after Easter wherever we shall then be in
England, so that, the abovesaid record and process having been
inspected, we may make to be done thereof further what of [right]
and according to the law and custom of our realm of England
should be done. Tested me myself at Westminster April 12 in the
29th year of the of our reign [April 12, 1538]. The record and process of which mention is made in the abovesaid writ
follow in these words: Bristol. Pleas of the lord king’s Tolzey court of the town of Bristol
held in the guildhall of the same town according to the law
merchant and according to the use and custom of the abovesaid
town used and approved in the same town from time whereof
memory does not run before Thomas Wynnesmore and Rowland
Cowper both sheriffs and bailiffs of the mayor and of the
community of the said town of Bristol on Wednesday February 6
in the 29th year of the reign of King Henry VIII [February 6, 1538]. On which certain day a certain William Ballard affirmed a
complaint of debt against a certain Hugh Pryste as follows:
William Ballard of the town of Bristol merchant complains of
Hugh Pryste of Hartland in the county of Devon merchant in a plea
of debt on a demand of £50 sterling and then and there the same
William Ballard found pledges to prosecute that complaint, viz.,
John Den and Richard Roo, and then and there sought process to
be made thereof for him against the aforementioned Hugh Pryste
according to the use and custom of that town etc. Therefore
according to the use and custom of that town etc., by the court it
was ordered to a certain Henry Feld serjeant at mace of the said
sheriffs etc., within the town abovesaid and minister of this court
that he summon by good summoners the abovesaid Hugh Priste
that he be at the next Tolzey court of the lord king of the abovesaid
town to be held, scilt., at Bristol, on Friday February 8 then next
following [February 8, 1538] according to the law merchant and
the use and custom abovesaid to answer the aforementioned
William Ballard of and in the abovesaid plea etc. And the same
day is given to the aforementioned William Ballard here etc. At which certain court held here, scilt., at Bristol abovesaid, before
the aforementioned Thomas Wynnesmore and Rowland Cowper
both sheriffs of the abovesaid town and bailiffs of the mayor and
community of the abovesaid town according to the law merchant
and according the use and custom abovesaid on the said Friday
comes the abovesaid William Ballard and offers himself against
the said Hugh Priste concerning the abovesaid plea, and he does
not come. And the same serjeant at mace etc., now here according
to the law merchant and the use and custom abovesaid attests that
the abovesaid Hugh Priste has nothing within etc., by which etc.
[IMG 0055] Therefore according to the law merchant and the use
and custom abovesaid at the petition of the said William Ballard on
the said February 8 it is ordered by the court here to the
aforementioned serjeant at mace and minister etc., that he put by
gage and safe pledges the abovesaid Hugh Pryste that he be at the
next said lord king’s Tolzey court of the abovesaid town to be held
at Bristol abovesaid in the abovesaid guildhall before the both
sheriffs and bailiffs of the mayor and community of the same town
on Monday February 11 then next following [February 11, 1538],
and whatever he should do thereon he shall certify to the abovesaid
court etc.; by virtue of which certain precept the same serjeant at
mace and minister of the abovesaid court etc., afterwards, viz., on
February 11 then next following etc., according to the custom of
the said town etc., attached the abovesaid Hugh Priste by his
certain ship called “le Mary Bulleyn” to be before the said both
sheriffs and bailiffs of the mayor and community of that town
according to the use and custom abovesaid to answer to the
aforementioned William Ballard in the plea of the complaint
abovesaid etc., and that afterwards, scilt., on the abovesaid
February 11 in the 29th year abovesaid the same serjeant at mace
returned and certified to the abovesaid court etc., that he by virtue
of the abovesaid precept attached the abovesaid Hugh by his
abovesaid ship to be before the abovesaid both sheriffs and bailiffs
of the mayor and community of that town etc., to answer to the
same William Ballard in the plea of the abovesaid complaint
according to the custom abovesaid etc., whereby afterwards, scilt.,
at the abovesaid lord king’s court, scilt., at Bristol abovesaid in the
abovesaid guildhall before the aforementioned both sheriffs and
bailiffs of the mayor and community of that town according to the
law, use and custom abovesaid on the Monday indeed the
abovesaid Hugh Priste comes before which the certain Thomas
Pacy jr. and Thomas More vintner in their proper persons and
according to the use and custom of the abovesaid town used and
approved in the same court from time whereof memory does not
run at the request of the said Hugh mainperned and each of them
mainperned the aforementioned Hugh Priste from day to day until
the end of the abovesaid plea etc. Bristol. The pleas of the lord king’s Tolzey court of the town of
Bristol held in the guildhall of the same town according to the law
merchant and according to the use and custom of the abovesaid
town used and approved in the same town from time whereof
memory does not run before Thomas Wynnesmore and Rowland
Cowper both sheriffs and bailiffs of the mayor and community of
the said town on Wednesday February 13 in the 29th year of the
reign of King Henry VIII. On which certain day the same William Ballarde in his proper
person [IMG 0243] appeared and put in his place John Sebryght
his attorney in the abovesaid plea to lose or to gain etc. And
afterwards on the same day declared in the manner and form
following as follows: William Ballard of the town of Bristol merchant complains of
Hugh Priste of Hartland in the county of Devon merchant in a plea
of debt on a demand of £50. Pledges of prosecution: John Den and
Richard Roo. Wherefore the same William Ballard by John
Sebryght his attorney says that, whereas the abovesaid Hugh Pryste
on July 27 in the 29th year of the reign of King Henry the eighth
after the conquest [July 27, 1537] at Bristol by his writing
obligatory granted that he was bound and firmly obligated to the
aforementioned William in the aforementioned £50 sterling to be
paid to the same William or to his certain attorney, his heirs or
executors when he should be required thereof, nevertheless the
same Hugh although often asked etc., has not yet paid the said £50
to the said William but wholly refused to pay them to him and still
refuses, wherefore he says that he is worse off and has damages to
the value of £5, and thereof he produces suit etc., and he proffers in
court the obligatory writing abovesaid that attests the abovesaid
debt in the beforesaid form, the date of which is the day and year
abovesaid etc. And the abovesaid Hugh Priste in his proper person comes
and defends force and injury as and when etc., damages etc., and
he seeks a copy of the abovesaid plea etc., and it is granted to him
etc., and then and there he puts in his place Francis Stradlyng his
attorney against William Ballard to lose and gain in the abovesaid
plea etc., and also then and there he sought license to emparl etc.,
until the next court, viz., Friday February 15 before the
aforementioned both sheriffs and bailiffs of the mayor and
community of that town, and it is granted to him etc. The same day
is given to the aforementioned William Ballard here etc. At which day the abovesaid parties appeared and the abovesaid
Hugh Priste by his attorney abovesaid brought and delivered to the
aforementioned both sheriffs and bailiffs of the mayor and
community of the same town the lord king’s certain writ of
certiorari that follows in these words: Henry VIII by the grace of God king of England and of
France, defender of the faith, lord of Ireland, and on earth the
supreme head of the English church to the mayor and sheriffs
of the town of Bristol and to the mayor and constables of the
Staple of the same town as well as the bailiffs of the mayor
and community of the abovesaid town of his abovesaid
Tolzey court and to his bailiffs of the pie powder court there
and each of them, greetings. Wanting to be certified from
certain causes on the cause of the taking and detention of
Hugh Pryste of Harland in the county of Devon merchant in
our prison under your the aforementioned sheriffs’ custody as
it is said, we order you that you send distinctly and openly
the abovesaid cause with everything touching it by
whatsoever name the same Hugh is known in that cause to us
in our chancery on the quindene of Easter next to come
wherever it shall be under your or one of your seals, and this
writ. Tested me myself at Westminster February 12 in the
29th year of our reign [February 12, 1538]. Which certain complaint on account of the coming of this writ still
remains undetermined etc. Pleas of the lord king’s Tolzey court of the town of Bristol held in
the guildhall of the same town according to the law merchant and
according to the use and custom of the abovesaid town used and
approved in the same town from time whereof no memory runs
before Thomas Wynnesmore and Rowland Cowper both sheriffs
and bailiffs of the mayor and community of the said town of
Bristol on Monday April 1 in the 29th year of the reign of King
Henry VIII. At this court comes the abovesaid William Ballard by his
abovesaid attorney and brought and delivered to the
aforementioned both sheriffs and bailiffs of the mayor and
community of the same town the lord king’s certain writ to proceed
against the said Hugh Priste, which follows in these words: Henry VIII by the grace of God king of England and France,
defender of the faith, lord of Ireland, and on earth the
supreme head of the English church to the mayor and
aldermen and the sheriffs of the town of Bristol and to the
mayor and constable of the Staple of the same town as well
as to the bailiffs of the mayor and community of the said
town of Bristol of his Tolzey court and the bailiffs of the said
mayor and community of the same town of his pie powder
court and each of them, greetings. Although we lately
wanting for certain causes to be certified on the tenor of the
record and process of a certain plea that was before you in
our court of the abovesaid town without our writ according to
the custom of the same town between William Ballard and
Hugh Priste concerning a plea of debt that the same William
exacts from the aforementioned Hugh as it was said, by our
writ we ordered you to send distinctly and openly the tenor of
the record and process and the abovesaid plea by whatsoever
names the parties abovesaid were known in the plea to us in
our chancery at a certain day contained in our said writ
wherever it would be then, and our writ abovesaid,
nevertheless, from which certain causes now moving us, we
order you that in the abovesaid plea with that speed that of
right and according to the law and custom of the abovesaid
town [IMG 0244] is possible you should proceed, our said
writ previously directed to you to the contrary
notwithstanding. Tested me myself at Westminster March 10
in the 29th year of our reign [March 10, 1538]. Therefore according to the law merchant, the use and custom
abovesaid, at the petition of the said William Ballard it is ordered
to the aforementioned Henry Fylde serjeant at mace within the
abovesaid town and minister of the court abovesaid etc., that
according to the custom etc., that he attach the abovesaid Hugh
Priste that he be here at the lord king’s next Tolzey court of the
abovesaid town to be held, scilt., at Bristol abovesaid in the
abovesaid guildhall before the aforementioned both sheriffs and
bailiffs of the mayor and community of the same town, scilt., on
Wednesday April 3 then next following [April 3, 1538] according
to the law merchant and the use and custom abovesaid to answer
the aforementioned William Ballard concerning the plea abovesaid
etc. The same day is given to the aforementioned William here etc. At which certain court, viz., at Bristol abovesaid etc., before the
aforementioned both sheriffs and bailiffs of the mayor and
community of that town according to the and use of the abovesaid
town held on the said Wednesday etc., comes the abovesaid
William Ballard in his proper person and offers himself against the
abovesaid Hugh Priste concerning the abovesaid plea etc. And the abovesaid Hugh Priste comes and defends force and
injury when etc., damages etc., and seeks oyer of the abovesaid
writing, and it is read to him in these words; Let everyone know by the presents that I, Hugh Priste of
Hartland in the county of Devon merchant, am bound and
firmly obliged to William Ballard of the town of Bristol
merchant in £50 sterling to be paid to the same William or to
his certain attorney, his heirs or executors, to which certain
payment well and faithfully to be made I obligate myself, my
heirs and executors by the presents, sealed with my seal July
27 in the 29th year of the reign of King Henry the eighth after
the conquest. [July 27, 1537] And he also sought oyer of the condition of the same obligatory
writing, and it is read to him in these words [in English]: The condicion of this present obligacion is suche that yf the
above bounden Hugh [IMG 0057] Pryste stondte abyde and
obey the awarde arbytrement ordenaunce and jugement of
John Gurney, Frauncis Codryngton, Edward Pryne and of
Thomas Tyson of Bristowe aforesaid merchauntes
arbytratours aswell of the partie of the above bounden Hugh
Pryste as of the partie of the abovenamyd William Ballard by
the said parties indifferentlie electid and chosyn to arbytre
ordeyn awarde judge & deme of & upon a byll of exchaunge
of the somme of one hundred fower score and twelve
ducattes of gold whiche was delyvered in Myssena unto John
Andrewes and John Burrowe wherupon stryffe and debate
nowe hangith and dependith betwen the said parties
undiscussed and the same awarde abrytrement abrytrement
[sic] ordenaunce and judgement of the said arbitratours in the
behalfe of the above bounden Hughe Pryste welle and truely
shall hold observe performe fulfylle and kepe so that the
same awarde arbytrement ordynaunce and judgement of the
same arbytratours be had made ande endyd betwen the said
parties of and upon the premysses by wrytyng indented made
and sealde undre the seales of the said arbitratours to every of
the said parties severallye to be delyvered athyssyde the xxiiij
day of Auguste next commyng after the date hereof and if the
said iiij arbytratours of in and upon the premisses cannot agre
that then if the above bounden Hugh Pryste do stande and
abyde or obey unto the award fynall determynacion and
judgement of one umpuer by the said parties of in and upon
the premysses indifferentlie electid and chosyn and the same
awarde fynalle determynacion and judgement of the said
umpier in the partie of the above bounden Hugh Priste welle
& truely shalle holde observe performe fulfyll and kepe so
that the same awarde fynall determynacion and judgment of
the said umpier be had made and endyd bytwen the said
parties of and upon the premisses by wrytyng indented made
and sealyd undre the seale of the said umpier & to every of
the parties severally to be delyvered a thyssid the last day of
August next comyng after the date hereof that then this
present obligacion to be utterly voyde and of none effect or
elles to stand in his full power strenght and vertue. These things having been read and heard, the abovesaid defendant
by Francis Stradlyng his attorney comes and defends force and
injury when etc., damages etc., and says by protesting that the
abovesaid declaration is not sufficient in law, to which the
abovesaid defendant has no need to respond, but, for a plea, says
that William Ballard ought not have or maintain his action against
him, because he says that the condition of the obligation is such
that if the abovesaid defendant stand to the arbitration, ordinance,
and judgment of John Gurney, Francis Codryngton, Thomas
Tyson, and Edward Pryn so that the abovesaid arbitrators make,
establish, and deliver to both parties in indented writings the
abovesaid arbitration before the feast of St. James the Apostle then
next to come, that then the abovesaid obligation would stand in his
strength and effect [sic] and otherwise be had for nothing. And the
abovesaid defendant by Francis Stradlyng his attorney comes and
says that the abovesaid arbitrators did not deliver the abovesaid
arbitration to the aforementioned defendant according to the
condition of the obligatory writing abovesaid, wherefore he seeks
judgment etc. And the abovesaid William Ballard by his abovesaid attorney
says that he ought not to be precluded from having his abovesaid
action, because he says that the abovesaid plea pleaded in bar of
the abovesaid action of the plaintiff in the manner and form
abovesaid is less sufficient in law, to which by the law of the land
the same William Ballard [IMG 0058] for default of sufficient
response seeks judgment and his abovesaid debt together with
damages, outlays, and his costs sustained in this part to be
adjudicated to him etc. And the abovesaid Hugh Priste by this attorney abovesaid
says that since the matter alleged by him above, which he is
prepared to verify, is sufficient in law to preclude the abovesaid
William Ballard from having his action abovesaid against him,
which certain matter the same William does not deny nor answers
to him in any way but wholly refuses to admit that verification, he
seeks judgment and that the same William Ballarde be precluded
from having his abovesaid action against him. And the abovesaid Thomas Wynnesmore and Rowland
Cowper both sheriffs of the abovesaid town and bailiffs of the
mayor and community of that town of the abovesaid court here
want to be advised until the next court, viz., Friday April 5 next
following [April 5, 1538]. The same day is given to the abovesaid
parties here etc. At which certain court held here, scilt., at Bristol abovesaid before
the aforementioned Thomas Wynnesmore and Rowland Cowper
both sheriffs of the abovesaid town and bailiffs of the mayor and
community of that town according to the law merchant and
according to the use and custom on the Friday abovesaid come
both the abovesaid William Ballard by his attorney abovesaid and
the abovesaid Hugh Pryste by his abovesaid attorney, and the
abovesaid Thomas Wynnesmore and Rowland Cowper both
sheriffs abovesaid and bailiffs of the mayor and community of that
court abovesaid here further want to be advised until the next
court, viz., Monday, scilt., April 8 then next following [April 8,
1538] etc. The same day is given to the abovesaid parties here etc. At which certain court held here, scilt., at Bristoll abovesaid before
the aforementioned Thomas Wynnesmore and Rowland Cowper
both sheriffs of the abovesaid town and bailiffs of the mayor and
[IMG 0245] and community of that town according to the law
merchant and according to the use and custom abovesaid on the
said Monday, come both the abovesaid William Ballarde by his
abovesaid attorney and the abovesaid Hugh Priste by his abovesaid
attorney. And thereon, this abovesaid plea having been seen and
understood by the abovesaid court, it seems to the abovesaid court
that the abovesaid plea pleaded by the said Hugh Priste above is
not sufficient in law to preclude the abovesaid William Ballarde
from having his abovesaid action. Therefore it is considered by the
court that the abovesaid William Ballard recover against the said
Hugh Priste his abovesaid debt and his damages adjudicated by the
court here by occasion of the detention of the that debt at 6s8d and
his outlays and costs sustained on that suit at 15s, and the
abovesaid Hugh Pryste in mercy etc. Afterwards, scilt., on June 3 this same term before the lord king at
Westminster comes the abovesaid Hugh Pryste by Richard Heywode his
attorney and says that in the record and process abovesaid and also in the
rendering of the abovesaid judgment manifestly it is erred, viz., in the first place it is erred that, whereas in the abovesaid record it
is specified and enrolled that at the court held before the
aforementioned both sheriffs abovesaid and bailiffs of the mayor
and community at Bristol abovesaid the abovesaid William Ballard
appeared and presented himself against the said Hugh in the
abovesaid plea, in this that it does not appear nor in that record is it
enrolled whether the same William appeared in his proper person
or by some attorney, as above it appears of record etc. And also in the abovesaid record further it is erred because in that
record no mention is made of any continuation between the parties
abovesaid nor that any day was given between the parties
abovesaid from the abovesaid court held there on February 8 in the
29th year abovesaid until the court held there on February 11 then
next following, as it appears similarly above of record. And further it is erred in the abovesaid record because the
abovesaid serjeant at mace at the court held there returned on the
precept of summoning the abovesaid Hugh directed to the same
serjeant at mace previously that the abovesaid Hugh has nothing
within Bristol abovesaid whereby he could be summoned, upon
which certain return the abovesaid court at Bristol abovesaid
adjudicated a writ to put by gage etc., against the abovesaid Hugh
etc., in this that on such a return of the said serjeant at mace on the
abovesaid summons the abovesaid court should have adjudicated
the process for taking the defendant and not the process of putting
[by gage], thereof in this it is erred. And moreover in the record abovesaid it is manifestly erred for
this, viz., that, whereas the abovesaid Hugh Pryste appeared at the
abovesaid court held there on Monday February 11 and in that
record it is not specified whether the abovesaid Hugh appeared in
his proper person or by his attorney, as above similarly it appears
of record. Likewise, it is erred in the abovesaid record for this that the
abovesaid serjeant at mace returned the abovesaid precept of
putting [at gage] against the abovesaid Hugh that by virtue of that
precept the same serjeant at mace attached the abovesaid Hugh by
a certain ship, in this that on such a precept of putting, the
abovesaid serjeant at mace should return pledges of the abovesaid
Hugh for his appearance to answer the aforementioned William in
the abovesaid plea and not that he attached the same defendant by
any goods etc. And particularly it is erred in the abovesaid record because in the
abovesaid record no continuation was made of the abovesaid plea
between the abovesaid parties from the abovesaid court held there
on February 11 in the 29th year abovesaid until the next court held
there, scilt., on Wednesday February 13 then next following,
whereby the abovesaid plea between the parties abovesaid was
totally discontinued etc. As well it is erred in the abovesaid record because the abovesaid
William narrated against the abovesaid Hugh of and on a certain
obligatory writing that the same William in that narration supposed
to have been made at Bristol etc., in this that in that narration it is
not specified in which county the said town of Bristol is, as above
it appears of record. And particularly in the abovesaid record it is erred because,
although between the abovesaid court held in the abovesaid Bristol
on Friday February 15 in the abovesaid 29th year and the court held
there on Monday April 1 many and divers courts were held there in
the meantime, viz., on each Monday , each Wednesday, and each
Friday between the same two courts, nevertheless there is no
mention in the abovesaid record of those courts thus held in the
meantime nor does any continuation between the parties abovesaid
concerning the abovesaid plea appear in the abovesaid record from
court to court as by the law of the land and according to the custom
of the town abovesaid ought to have been made, whereby that plea
for the same whole time was discontinued. And also in the abovesaid record it is erred for this that at the
abovesaid court held there on the abovesaid April 1 the abovesaid
William proffered the lord king’s writ to proceed in the abovesaid
complaint and on the allocation of the same writ to proceed it was
ordered by the abovesaid court that he attach the abovesaid Hugh
to be at the next court to be held there etc., in this that the court
erroneously adjudicated that precept to attach the defendant
because that complaint did not remain without day by pretext of
the writ of certiorari abovesaid but the said court had such power
to proceed in the abovesaid cause after the allocation of the said
writ to proceed as it had before the said writ of certiorari was
delivered to the same court, and if any precept in such case should
be adjudicated it would be the precept to summon the defendant
and not to attach etc. And further in the abovesaid record manifestly it is erred because
the abovesaid Hugh above pleaded in bar that the arbitrators
abovesaid did not deliver the arbitration abovesaid to the
aforementioned defendant according to the condition of the
obligatory writing abovesaid, on which certain plea the abovesaid
William demurred in law and afterwards at the court held there on
Monday, scilt., April 8, for the insufficient matter of the abovesaid
plea the abovesaid court gave judgment for the aforementioned
William against the aforementioned Hugh in the abovesaid plea, in
this that notwithstanding that the same plea is sufficient in law to
preclude the abovesaid William from having his abovesaid action,
the said court nevertheless proceeded and erroneously gave
judgment for the same William, as above similarly appears of
record. And the abovesaid Hugh seeks the lord king’s writ to warn the
abovesaid William to be before the lord king to hear the record and
process abovesaid etc., and it is granted to him etc., whereby it is ordered
to the sheriff that by prudent etc., he should make it to be known to the
aforementioned William that he be before the lord king on the Octaves
of the Holy Trinity wherever etc, to hear the record and process
abovesaid if etc., and further etc. The same day is given to the
aforementioned Hugh etc. At which certain Octaves of the Holy Trinity before the lord king at
Westminster comes the abovesaid Hugh Pryst by his attorney abovesaid.
And the sheriff did not sent the writ. Therefore as formerly it is ordered
to the sheriff that by prudent etc., he should make to be known to the
aforementioned William Balard that he be before the lord king on the
Octaves of St. Michael wherever etc., to hear the record and process
abovesaid is he want etc., and further etc. The same day is given to the
aforementioned Hugh etc. At which certain Octaves of St. Michael before the lord king at
Westminster comes the abovesaid Hugh Pryst by his attorney abovesaid,
and the sheriff did not send the writ thereof. And the abovesaid William
on the 4th day of the plea, solemnly exacted, comes by John Raut his
attorney. Thereon the abovesaid Hugh as before says that in the record
and process abovesaid and also in the rendering of the abovesaid
judgment it is manifestly erred by alleging the abovesaid errors alleged
by him above in the abovesaid form. And he seeks that the abovesaid
judgment on account of those errors and others being in the abovesaid
record and process be revoked and completely be had for nothing, and
that he be restored to everything that he lost by occasion of the
abovesaid judgment, and that the abovesaid William rejoin to the
abovesaid errors. And the abovesaid William as to the first matter abovesaid above assigned by the abovesaid
Hugh for error because it does not appear or in that record is it
enrolled whether the abovesaid William appeared in his proper
person or by some attorney, he says that the abovesaid record sent
before the said lord king in the form abovesaid stands diminished,
viz., between these sayings–“quo quidam die quidem Willelmus
Balard”– and these sayings –“affirmavit querelam”–it lacks these
sayings, viz., “in propria persona sua venit etc.” and as to the abovesaid second matter by abovesaid Hugh above
assigned for error similarly, because no continuation was made nor
any day was given in the abovesaid record between the parties
abovesaid from the abovesaid court held there on February 8 in the
29th year abovesaid until the court held there on February 11 then
next following, the abovesaid William Ballard says that the
abovesaid record similarly is diminished there, viz., between these
sayings–“Et quid superinde fecerit certificaret curie predicte etc.,”–
and these sayings–“virtute cuius”–it lacks these sayings: “Et idem
dies datus est predicto Willelmo Ballarde hic etc.” And as to the abovesaid third matter assigned by the abovesaid
Hugh above for error similarly, because whereas on the return of
the summons by the said serjeant at mace the abovesaid court
adjudicated the process to take the said defendant and not the
process to put by gage the abovesaid Hugh etc., the same Hugh
[sic] says that the abovesaid record similarly is diminished thereof,
viz.: “infra libertatem ville predicte per quod aut ubi summoneri
potuit nec fuit inventus in eadem.” And as to the abovesaid fourth matter assigned above by the
abovesaid Hugh for error similarly because where it is not
specified in the abovesaid record whether the abovesaid Hugh
appeared in his proper person or by some attorney at the said court
held there on the said February 11, the abovesaid William Ballard
says the record abovesaid is similarly diminished, viz., between
these words–“Et predictus Hugh Pryst”–and this saying–“venit”– it
lacks these sayings, viz.: “in propria persona sua.” And as to the abovesaid fifth matter above assigned for error
similarly by the abovesaid Hugh because the abovesaid serjeant at
mace on the said precept to put [by gage] returned that he attached
the abovesaid defendant by the abovesaid ship and not pledges by
the said defendant for his appearance, the same William says that
the abovesaid town of Bristol is an ancient borough of the lord
king of England and that in the same borough of Bristol is had and
from the whole time whereof the memory of men runs not to the
contrary was had such a custom used and approved, viz., that if
anyone should affirm against anyone any complaint of debt in any
court of the lord king within the abovesaid town and if it should be
attested by the minister of that court that the party named
defendant in the same complaint or action has nothing within the
liberty of the abovesaid town whereby he can be summoned nor is
he found within the liberty of the abovesaid town and afterwards it
should be testified to the abovesaid court that the party named
defendant in that complaint or action has goods and chattels within
the liberty of the abovesaid town in the hands or custody of any
other person being in the abovesaid town, that then the said
defendant should be attached by the said goods and chattels thus
being in the hands of any other person to answer to the
aforementioned plaintiff of and on his plea, complaint, or action
abovesaid, and after three defaults recorded at the next three courts
in the guildhall of the town abovesaid after the said attachment on
the said default made then he in whose hands thus, as it is set forth
before, the said goods and chattels were attached, should be
warned and made to know to be at the then next court of the lord
king then to be held in the guildhall of the abovesaid town to show
and demonstrate if he should have for himself or know to say
anything why the said plaintiff ought not to have execution of the
said goods and chattels, and further if the said person warned come
and appear and then by pleading any plea to the abovesaid precept
for making him to know that then the abovesaid goods and chattels
thus attached should be appreciated and delivered to the plaintiff
by pledges etc., to be restored etc., if the abovesaid defendant come
within the year and a day next to come and should prove the
abovesaid action of the plaintiff in his plea, complaint, or action
abovesaid, and also if the said person warned after warning given
to him by the minister of the abovesaid court not appear but makes
a default and the plaintiff should swear the abovesaid debt sought
by him according to the custom of the abovesaid town, then the
said plaintiff will have and has been accustomed to have from time
whereof the memory of men runs not to the contrary the said goods
and chattels thus attached in the hands or possession of another
person, and to the defendant according to the ancient and laudable
custom of the said town of Bristol by pledges etc., to be restored
etc., if the abovesaid defendant should come within the year and a
day next immediately following and prove the abovesaid action of
the plaintiff in his abovesaid plea or complaint of the plaintiff. And as to the abovesaid sixth matter assigned for error above by
the abovesaid Hugh because in the abovesaid record no
continuation was made between the abovesaid parties from the
abovesaid court held there on February 11 in the 29th year
abovesaid until the next court held there, scilt., Wednesday
February 13 then next following, the abovesaid William Balard
says that the abovesaid record thereof similarly is diminished, viz.,
immediately after these sayings–“usque finem placiti predicti
etc.”–these sayings are lacking, viz.: “Et idem dies datus est
partibus predictis etc., usque proximam curiam etc.” And as to the abovesaid seventh matter assigned similarly above
as error by the abovesaid Hugh because between the abovesaid
court at the abovesaid town of Bristol held on the said Friday
February 15 in the abovesaid year and the court held there on
Monday April 1 there were many and divers courts held in the
meantime of which courts thus held in the meantime there was
made no continuation, the abovesaid William Ballard says that the
abovesaid record sent before the lord king stands similarly
diminished thereof, [IMG 0059] viz., between these
sayings–“February 15"–and these sayings–“coram prefatis tam
vicecomitibus quam ballivis etc.”–these sayings are lacking, viz.:
“anno vicesimo nono predicto.” And as to the abovesaid eighth matter above assigned by the
abovesaid Hugh for errors because the said court in the said town
of Bristol after the allocation of the said writ to proceed
adjudicated the precept to attach the said defendant, the abovesaid
William says that in the said town of Bristol such a custom is had
and was had from time whereof the memory of men runs not to the
contrary and was used and approved within the same town for the
whole same time that if any writ out of any court of the lord king at
common law should have emanated directed to any officer or any
officers of the abovesaid town and the writ should be allocated by
any court held in the said town, then before the writ of the lord
king to proceed in the abovesaid plea be delivered out of the
abovesaid court of the lord king at common law to said officer of
that court to be held within the abovesaid town and allocated by
the same officers of that town, in the meantime no continuation
ought to be made between the parties abovesaid in that named plea,
and by the custom of the abovesaid town after such writ to proceed
is allocated by the court to be held within the abovesaid town it has
been used for the whole time abovesaid that the minister of that
court in which any such plea pends should attach the said
defendant to answer the plaintiff in the same complaint named etc., which certain words thus appear omitted and of record in the said town
of Bristol before the said mayor and sheriffs of the abovesaid town still
remain not yet certified to the lord king, and the same William seeks the
lord king’s writ to be directed to the aforementioned mayor and sheriffs
to certify to the lord king both the abovesaid customs and of the
abovesaid words and matters omitted in the abovesaid form. And it is
granted to him etc., whereby it is ordered to the said mayor and sheriffs
that they certify etc., the full truth thereof to the same lord king at a
month after Michaelmas wherever etc. Which certain mayor and sheriffs of the town of Bristol by virtue of the
writ of the lord king thereof directed to them certified and returned as
follows in these words: By virtue of this writ directed to us we certify to the lord king that
we scrutinized and made to be scrutinized the transcript of the
record and process of the plea specified in that writ annexed to this
schedule and in the same we found that the record sent before the
lord king was diminished, viz., in these words: “in propria persona sua venit” and between
these sayings–“quoquidem die quidam Willelmus Ballard”
and these sayings–“affirmavit querelam” As well as these sayings: “et idem dies datus est prefato
Willelmo Ballard hic etc.” between these sayings – “Et quid
superinde fecerit certificaret curie predicte etc.” and these
sayings: “virtute cuius.” And also of these words: “infra libertatem ville predicte per
quod aut ubi summoneri potuit nec fuit inventus in eodem”
between these sayings–“predictus Hugh Pryst nichil habet”–
and these sayings: “infra etc., per quod etc.” And particularly concerning these words, viz.: “in propria
persona sua” between these sayings–“Et predictus Hugo
Pryst”–and this saying: “venit” And moreover concerning these words: “Et idem dies datus
est partibus predictis etc., usque proximam curiam etc.,” viz.,
which sayings after these sayings: “usque finem placiti
predicti etc.” And concerning these words: “anno vicesimo nono predicto”
immediately after these sayings-- “decimo quinto die
Februarii”–and before these words: “coram prefatis tam
vicecomitibus quam ballivis etc.” Concerning which certain words omission was made by diminution
in the form abovesaid alleged before the said lord king in the
record abovesaid etc., of which certain words thus omitted and
remaining before the said lord king of record to the lord at the
place and day contained in the writ annexed to this schedule we
certify. And further we certify to the said lord king That the said town of Bristol is an ancient borough of the lord
king of England and that in the same borough of Bristol is
had and from the whole time wherever the memory of men
runs not to the contrary was had such a custom used and
approved, viz., that if anyone should affirm against anyone
any complaint of debt in any court of the lord king within the
abovesaid town and if it should be attested by the minister of
that court that the party named defendant in the same
complaint or action has nothing within the liberty of the
abovesaid town whereby or where he can be summoned nor
is found within the liberty of the abovesaid town, and
afterwards it should be attested to the abovesaid court that the
party named defendant in the same complaint or that action
has goods and chattels within the liberty of the abovesaid
town in the hands or custody of some other person being in
the abovesaid town, that then the said defendant should be
attached by the said goods and chattels thus being in the
hands of some other person to answer the aforementioned
plaintiff of and in his plea, complaint or action abovesaid.
And after three defaults recorded at the three abovesaid
courts in the guildhall of the abovesaid town after the said
attachment made on the said defendant then he in whose
hands thus as set out before the said goods and chattels were
attached should be warned and made to be known to be at the
next court of the said lord king then next to be held in the
guildhall of the abovesaid town to show and demonstrate if
he has for himself or knows to say anything why the said
plaintiff ought not have execution of the said goods and
chattels. And further if the said warned person should come
and appear and then plead any plea to the abovesaid precept
of scire facias that then the goods and chattels thus attached
should be appreciated and delivered to the party complaining
by pledges, to be restored etc., if the abovesaid defendant
should come within the year and a day then next following
and prove the abovesaid action of the plaintiff in his plea,
complaint, or action abovesaid, and also if the said warned
person after warning given to him by the minister of the
abovesaid court not appear but should make a default and the
party complaining swear the abovesaid debt sought by him
according to the custom of the abovesaid town to be true etc.,
then the said plaintiff will have and has been accustomed to
have from time whereof the memory of man runs not to the
contrary execution of the said goods and chattels thus
attached and defended in the hands or possession of another
according to the ancient and laudable custom of the said city
of Bristol by pledges etc., to be restored etc., if the abovesaid
defendant should come within the year and a day then next
following and prove the abovesaid action of the plaintiff in
his plea, complaint or action abovesaid. Also we certify to the lord king that in the said town of
Bristol such a custom is had and from time whereof the
memory of men runs not to the contrary was had and used
and approved within the same town for the whole same time,
that if any writ should emanate out of any court of the lord
king at common law directed to any officer or any officers of
the abovesaid town, and the same should be allocated by any
court held in the said town, then before the writ of the lord
king to proceed in the abovesaid complaint out of the
abovesaid court of the lord king at common law be delivered
to the said officer of that court to be held within the above
town of Bristol and be allocated by the same officers of that
town, in the meantime no continuation ought to be made
between the parties abovesaid in that named plea, and by the
custom of the abovesaid town after such a writ to proceed by
the court to be held within the abovesaid town is allocated, it
has been used for the whole abovesaid time that the minister
of that court in which any such plea pends should attach the
said party defending to answer the party complaining in the
same named plea. Of which certain words thus omitted and the abovesaid customs we
certify the said lord king fully and wholly as they are in the said
town of Bristol. Thereon the abovesaid William Ballard as the remaining matters above
assigned for error by the abovesaid Hugh says that in nothing is it erred.
And he seeks similarly that the court of the lord king here proceed to the
examination both of the record and process abovesaid and of the
abovesaid matters above assigned for errors. And because the court of
the lord king here concerning rendering judgment of and on the
premisses is not yet advised, day thereof is given to the abovesaid parties
before the lord king until on the Octaves of St. Hilary wherever etc., to
hear thereof their judgment, because the court of the lord king here
thereof not yet etc. At which day before the lord king at Westminster come the abovesaid
parties by their abovesaid attorneys, and because the court of the lord
king here is not yet advised to render its judgment of and on the
premisses, day thereof is given further to the abovesaid parties before the
lord king until 15 days after Easter wherever etc., to hear their judgment
thereof, because the court of the lord king here thereof not yet etc.
0055,
0056,
0243,
0244,
0057,
0058,
0245,
0246,
0059
