John Jones v. Elizabeth Sherman widow administrator of Walter
Sherman
(for another case of error in the Bristol court against Elizabeth Sherman, see
Bristol attorney: John Younge
(for another Bristol error case with Bristol attorneys John Younge and George Baldwin, see)
Error in king's bench (Michaelmas term, 1607) on an action in the court of Bristol
AALT images for Jones v. Sherman This action of error on a case of debt against an administrator in the
Tolsey court of Bristol is a good example of the process by which town
courts could handle cases against non-residents. The particular errors
assigned here have to do with the goods of the defendant attached to
procure her presence: whether her own goods could be attached in a
suit against her only as administrator and whether the record had to
specify an appreciation of the goods attached and the resulting value. The lord king sent to the mayor and aldermen of the city of Bristol and
mayor and constable of the Staple of Bristol as well as the sheriffs of the
same and the bailiffs of the mayor and community of his same Tolsey
court and the bailiffs of the mayor and community of his pie powder
court and each of them his writ close in these words: James by the grace of God king of England, Scotland, France, and
Ireland, defender of the faith etc., to the mayor and aldermen of the
city of Bristol and to the mayor and constable of the Staple of
Bristol as well as to the sheriffs of the same and to the bailiffs of
the mayor and community of his same Tolsey court and to the
bailiffs of the mayor and community of his pie powder court and
each of them, greetings. Because in the record and process and
also in the rendering of judgment of a plea that was before you in
our court of the abovesaid city without our writ according to the
custom of the same city between John Jones and Elizabeth
Sherman widow administrator of the goods and chattels that were
Walter Sherman’s who died intestate as it is said of this that the
same administratrix render to the aforementioned John £40 as it is
said manifest error intervened to the grave damage of the same
administratrix as we have received from her 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 you
should send distinctly and openly the record and process of the
abovesaid plea with everything touching them to us under your
seal, and this writ, so that we have them on Easter month wherever
then we shall be in England, so that, the abovesaid record and
process having been inspected, we may make to be done further
thereof for the correction of that error what of right and according
to the law and custom of our realm of England should be done.
Tested me myself at Westminster March 27 in the 5th year of our
reign of England, France, and Ireland and the 40th of Scotland
[March 27, 1607].Pennyman The execution of this writ appears in a certain schedule annexed to this
writ: The response of John Barker mayor of the city of Bristol and
alderman of the same city and of Thomas Packer and John
Doughtye sheriffs. City of Bristol. Pleas in the lord king’s Tolsey court of the
abovesaid city held in the guildhall of the same city according to
the law merchant and according to the use and custom of the
abovesaid city used and approved in the same city from time
whereof the memory of men runs not to the contrary before
Thomas Packer and John Doughtye both sheriffs of the abovesaid
city and bailiffs of the mayor and community of the same city on
Friday February 27 in the 4th year of the reign of the said our Lord
James by the grace of God king of England, France, and Ireland,
defender of the faith and the 40th of Scotland [February 27, 1607],
Thomas Younge armiger then and there seneschal. And now, scilt., at this court comes John Jones in his proper person
before the aforementioned both sheriffs and bailiffs of the
abovesaid city in the guildhall of the same city, and in the said
court according to the custom abovesaid he affirmed a certain
complaint of debt on a demand of £40 against Elizabeth Sherman
widow administratrix of all and singular the goods and chattels,
rights, and credits that were of Walter Sherman late her husband
who died intestate that she unjustly detains etc. And then and there
in the same court he finds pledges to prosecute his complaint
abovesaid against the abovesaid Elizabeth Sherman, scilt., John
Doe and Richard Roe. And then and there in the same court he
sought process to be made for him according to the custom of the
abovesaid city. Thereon at the petition of the abovesaid John Jones
made according to the custom of the abovesaid city it was ordered
then and there by the aforementioned then both sheriffs of the
abovesaid city and bailiffs of the mayor and community of the
same city to a certain John Eaton then serjeant at mace of the then
both sheriffs and bailiffs abovesaid and minister of the abovesaid
court that he summon by good summoners the abovesaid Elizabeth
Sherman according to the custom of the abovesaid city to be at the
next said lord king’s Tolsey court abovesaid to be held in the
guildhall of the same city, scilt., on Monday March 2 then next
following before the aforementioned then both sheriffs and bailiffs
to be held to answer the aforementioned John Jones in the plea or
complaint abovesaid. And the same day is given to the
aforementioned John Jones there etc. At which certain next court, scilt., Monday, March 2 [March 2,
1607] there, scilt., at the city of Bristol abovesaid in the abovesaid
guildhall before the aforementioned then both sheriffs and bailiffs
according to the custom of the abovesaid city came the abovesaid
John Jones in his proper person and offered himself against the
aforementioned Elizabeth in the abovesaid plea. And abovesaid
then serjeant at mace and minister of the abovesaid court then
returned his abovesaid precept directed to him in the form
following, viz., that the abovesaid Elizabeth Sherman had nothing
within the jurisdiction of the court or liberty of the abovesaid city
whereby she could be summoned or was she found in the same.
And the abovesaid Elizabeth Sherman then and there was solemnly
exacted and did not appear but made a default. Thereon in the
same court according to the custom of the abovesaid city it was
alleged to him in the same court then and there by the abovesaid
John Jones that the abovesaid Elizabeth Sherman within the liberty
of the city abovesaid had divers goods and chattels then, viz., 4
sails, in English, fowre sayles, of a certain ship there called “The
Angell.” Thereon at the petition of the abovesaid John Jones then
and there it was ordered by the abovesaid then both sheriffs and
bailiffs in the same court according to the custom of the abovesaid
city to the aforementioned serjeant at mace and minister of the
abovesaid court that he attach the abovesaid Elizabeth Sherman
named in the abovesaid complaint or plea by the abovesaid goods
and chattels as the proper goods and chattels of the abovesaid
Elizabeth Sherman to be at the next said lord king’s Tolsey court
abovesaid to be held in the guildhall of the abovesaid city, scilt., on
Wednesday March 4 then next following to answer the
aforementioned John Jones in the abovesaid plea or complaint, and
what the same then serjeant at mace and minister of the abovesaid
court should have done thereof then in the same next court before
the aforementioned then both sheriffs and bailiffs of the abovesaid
city he should certify. The same day then and there is given to the
aforementioned John Jones there etc. At which certain next court held there, scilt., at the city of Bristol
abovesaid in the abovesaid guildhall before the aforementioned
then both sheriffs and bailiffs of the abovesaid city according to
the custom of the abovesaid city on Wednesday March 4 abovesaid
[March 4, 1607] came John Jones abovesaid in his proper person
and offered himself against the aforementioned Elizabeth Sherman
in the abovesaid plea or complaint. And the abovesaid then
serjeant at mace and minister of the abovesaid court then and there
returned his abovesaid precept directed in the abovesaid form
executed in the form following, viz., that by pretext of the same
precept directed to him in the abovesaid form he attached the
abovesaid Elizabeth Sherman named in the abovesaid complaint by
the abovesaid goods and chattels specified according to the custom
of the abovesaid city as by his abovesaid precept it was ordered to
him. And the abovesaid Elizabeth then and there in the same court
according to the custom of the city and court abovesaid was
exacted and did not come, but made a default. Thereon then and there in the same court according to the
custom of the city and court abovesaid the abovesaid John Jones
put in his place John Younge his attorney against the
aforementioned Elizabeth Sherman named in the abovesaid plea or
complaint. And in that court according to the custom of the abovesaid
city then and there by the abovesaid attorney by narrating says in
the form following, viz., that the abovesaid intestate in his life,
scilt., on April 15 in the 4th year of the reign of our Lord James
now king of England etc., at the city of Bristol in the ward of All
Saints there within the jurisdiction of the abovesaid court by his
obligatory writing sealed with the seal of the same intestate and
proffered in court the date of which is the day and year abovesaid
granted that he was bound to the aforementioned plaintiff in the
abovesaid £40 of the lawful money of England to be paid to the
same plaintiff when he should be required thereof [IMG 1384],
and afterwards the abovesaid intestate at the city of Bristol
abovesaid in the ward of All Saints the abovesaid intestate died,
after whose certain death the administration of all and singular
goods, rights, credits and chattels that were of the abovesaid
intestate at the time of his death by the reverend lord father in
Christ the Lord Richard by divine providence the archbishop of
Canterbury and the primate and metropolitan of all England was
committed to the abovesaid Elizabeth, and divers goods and
chattels that were the abovesaid intestate’s at the time of his death
sufficient to pay the abovesaid debts and all the other debts of the
abovesaid intestate came into the hands and possession of the
abovesaid defendant and remain in her hands to be administered,
nevertheless the abovesaid intestate in his life or the abovesaid
defendant to whom the abovesaid administration was committed
after the death of the abovesaid intestate has not yet paid the
abovesaid £40 to the aforementioned plaintiff although often
asked, but the abovesaid intestate in his life wholly refused to pay
them to him and the abovesaid defendant after the death of the
abovesaid intestate still refuses to this time to pay them to the same
plaintiff and unjustly detains, wherefore the same plaintiff says that
he is worse off and has damages to the value of £10, and thereof he
produces suit etc. And afterwards thereon according to the custom
of the city and court abovesaid the process of the abovesaid plea
continued. And the abovesaid John Jones in the abovesaid court held before
the aforementioned then both sheriffs and bailiffs within the
abovesaid city in the abovesaid guildhall on Friday March 6
[March 6, 1607] by his attorney abovesaid offered himself in the
abovesaid plea or complaint then against the abovesaid Elizabeth
Sherman in the abovesaid plea. And the abovesaid Elizabeth
Sherman at the same court according to the custom of the
abovesaid city solemnly was exacted but did not appear but
thereon then and there made her first default. Thereon day then
and there was given by the same court to the aforementioned John
Jones in the abovesaid plea or complaint according to the custom
of the abovesaid city to be at the next said lord king’s Tolsey court
to be held in the guildhall of the abovesaid city on Monday March
9 abovesaid in the abovesaid year [March 9, 1607] then next
following before the aforementioned then both sheriffs and bailiffs
according to the custom of the abovesaid city. And the same day
then and there is given to the aforementioned Elizabeth Sherman to
be at the same court to answer the aforementioned John Jones in
the abovesaid plea or complaint. At which certain next court held at the city of Bristol abovesaid in
the abovesaid guildhall before the aforementioned both sheriffs
and bailiffs according to the custom of the abovesaid city on the
said Monday March 9 [March 9, 1607] the same John Jones by his
abovesaid attorney then and there appeared in the abovesaid plea
or complaint and he offered himself against the abovesaid
Elizabeth in the abovesaid plea. And the abovesaid Elizabeth
Sherman then and there solemnly exacted according to the custom
of the abovesaid city did not appear, but then and there made her
second default. Thereon day then and there was given by the same
court to the aforementioned John Jones in the abovesaid plea or
complaint according to the custom of the abovesaid city to be at the
next said lord king’s Tolsey court to be held in the abovesaid
guildhall on Wednesday March 11 then next following before the
aforementioned then both sheriffs and bailiffs according to the
custom of the abovesaid city. And the same day then and there is
given to the aforementioned Elizabeth Sherman to be at the same
court according to the custom abovesaid to answer the
aforementioned John Jones in the abovesaid plea or complaint. At which certain court held within the city of Bristol abovesaid in
the abovesaid guildhall before the aforementioned then both
sheriffs and bailiffs according to the custom of the abovesaid city
on Wednesday March 11 [March 11, 1607] the abovesaid John
Jones by his abovesaid attorney appeared in the abovesaid plea or
complaint and offered himself against the abovesaid Elizabeth in
the abovesaid plea. And the abovesaid Elizabeth Sherman at the
same court according to the custom of the abovesaid city then
solemnly exacted did not appear but then and there made her third
default. Thereon day was given then and there by the same court
to the aforementioned John Jones in the abovesaid plea or
complaint according to the custom of the abovesaid city to be at the
next said lord king’s Tolsey court to be held in the abovesaid
guildhall on Friday March 13 then next following before the
aforementioned then both sheriffs and bailiffs according to the
custom of the abovesaid city. [IMG 1385] And the same day then
and there was given to the aforementioned Elizabeth Sherman to be
at the same court according to the custom of the abovesaid city to
answer the aforementioned John Jones in the abovesaid plea or
complaint. At which certain next court held within the city of Bristol
abovesaid in the guildhall abovesaid before the aforementioned
then both sheriffs and bailiffs according to the custom of the
abovesaid city on the said Friday March 13 [March 13, 1607] the
abovesaid John Jones by his abovesaid attorney appeared in the
abovesaid plea or complaint then and there, and he offered himself
against the abovesaid Elizabeth in the abovesaid plea. And the
abovesaid Elizabeth Sherman at the same court according to the
custom of the abovesaid city then solemnly exacted did not appear
but then and there made her fourth default and did not permit
herself to be justiced by or on the foreign attachment abovesaid
according to the custom of the abovesaid city. And the abovesaid
John Jones then and there according to the custom of the abovesaid
city and court swore and proved that the abovesaid goods specified
before that were attached and defended are the goods of the
abovesaid Elizabeth Sherman in the abovesaid form and that the
abovesaid debt of £40 specified in the abovesaid complaint was
and is at this time a true and just debt. Thereon at the same court
according to the custom of the abovesaid city and court the
abovesaid John Jones by his abovesaid attorney sought judgment
and execution according to the custom of the city and court
abovesaid from the abovesaid goods thus as set out before attached
and defended by and on sufficient mainprise or pledge according to
the custom of the abovesaid city to be found by the abovesaid John
to answer the aforementioned Elizabeth Sherman if she according
to the custom of the city and court within a year and a day then
next following come and deraign herself against the same John
Jones concerning the abovesaid £40. And the abovesaid John
Jones then and there in the abovesaid court according to the custom
of the abovesaid city swore and legitimately proved his abovesaid
debt of £40 specified in the abovesaid complaint to be a true and
just debt. Thereon at the same court it was considered then and
there according to the custom of the abovesaid city that the
abovesaid John Jones recover his abovesaid debt and have
execution from her abovesaid goods and chattels attached as set
out before, scilt., from the four sails, in English, of fower sayles, of
the said ship called “The Angell” by the mainprise of William
Fleete and John Collyns citizens and merchants of the abovesaid
city to answer thereof to the aforementioned Elizabeth Sherman if
the same abovesaid Elizabeth Sherman according to the custom of
the city and court abovesaid within a year and a day come and
deraign herself against the abovesaid John Jones concerning the
abovesaid £40 according to the custom of the abovesaid city, and
the abovesaid Elizabeth in mercy 2d. Afterwards, scilt., on Monday next after the Octaves of St. Martin this
same term before the lord king at Westminster comes the abovesaid
Elizabeth by Nicholas Weare her attorney. And he says that in the
record and process abovesaid as well as in the rendering of the
abovesaid judgment manifestly it was erred in this, viz., that it appears by the abovesaid record that the abovesaid four sails
attached by the aforementioned serjeant at mace in the abovesaid
form at the abovesaid time of the attachment of the same made
thereof were the proper goods and chattels of the abovesaid
Elizabeth and not the goods and chattels of the abovesaid intestate
in the hands of the abovesaid Elizabeth to be administered, and for
that cause those sails by the law of the land could not be and ought
not have been attached for the debt of the abovesaid intestate but
only for a proper debt of the abovesaid Elizabeth, and therefore in
this it was erred. Likewise in this similarly it was erred that it does not appear by the
abovesaid record that the abovesaid four sails were appreciated by
prudent and lawful men of the abovesaid city of Bristol as
according to the custom of the same city they ought to have been
appreciated, so that it does not appear by that record of what value
the abovesaid sails were at the time of the attachment made thereof
nor at the time of the judgment thereof rendered. And the same Elizabeth seeks the lord king’s writ to warn the abovesaid
John Jones to be before the lord king to hear the record and process
abovesaid. And it is granted to her etc. Whereby it is ordered to the
sheriffs of the city of Bristol that by prudent etc., they should make
known to the aforementioned John that he be before the lord king on the
Octaves of St. Hilary wherever etc., to hear the record and process
abovesaid if etc., and further etc. The same day is given to the
aforementioned Elizabeth there etc. At which day before the lord king [IMG 0478] at Westminster comes
the abovesaid Elizabeth by his abovesaid attorney. And the sheriffs
return that they by virtue of the said lord king’s writ directed to them
thereof they made known by James Dyer and Anthony Walforde prudent
etc., of their bailiwick the aforementioned John to be before the lord
king at the day and place abovesaid as it was ordered to them by the
abovesaid writ. Which certain John although thus warned, solemnly
exacted on the fourth day of the plea, did not come but made a default.
Thereon the abovesaid Elizabeth as before says that in the record and
process abovesaid and also in the rendering of the abovesaid judgment it
was manifestly erred by alleging the abovesaid errors alleged by her in
the abovesaid form. And she seeks that the abovesaid judgment on
account of those errors and others being in the abovesaid record and
process be revoked, annulled, and wholly had for nothing, and that she
be restored to everything she lost by occasion of the abovesaid judgment
etc., and that the court of the said lord king here proceed to the
examination both of the abovesaid record and process and of the matters
abovesaid assigned for errors. And because the court of the lord king
here is not yet advised to render its judgment of and on the premisses,
day is given thereof to the aforementioned Elizabeth before the lord king
until the quindene of Easter wherever etc., to hear her judgment thereof
because the court of the lord king here thereof not yet etc.
0476,
0477,
1384,
1385,
0478