Canterbury attorneys: Giles Wynston, John Smythe

The lady queen sent to the mayor of her city of Canterbury her writ close in these words:

Elizabeth by the grace of God queen of England, France, and Ireland, defender of the faith etc., to the mayor of her city of Canterbury, greetings. Because in the record and process and also in the rendering of judgment of a plea that was before you in our pie powder court of the abovesaid city without our writ according to the custom of the same city between William Hunt and William Wytherden concerning a certain trespass on the case inflicted on the same William Hunt by the aforementioned William Wytherden as we have received 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 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 at one month after Michaelmas wherever we shall be in England so that, the abovesaid record and process having been inspected, we may make to be done further what of right and according to the law and custom of our realm of England, and if the abovesaid William Wytherden should deposit the damages in this part adjudicated before you to the same William Hunt to be delivered to the aforementioned William Hunt if it should happen that the abovesaid judgment be affirmed and moreover should find before you sufficient security that he will prosecute our present writ of error with effect, then make to be delivered without delay the same William Wytherden from the prison in which he is detained by that occasion abovesaid if he is detained in the same by that occasion and not by some other from the abovesaid causes. Tested me myself at Westminster August 27 in the 13^th year of our reign. [August 27, 1571].

The record and process of which mention is made in the abovesaid writ follow in these words:

The City of Canterbury. Pleas in the pie powder court of the lady queen of the abovesaid city held in the guildhall of the same city on Saturday July 28 in the 13^th year of the reign of our lady Elizabeth by the grace of God queen of England, France, and Ireland, defender of the faith etc., [July 28, 1571] at the 10^th hour before noon of the same day before James Drayton mayor of the city abovesaid according to the use and custom of the same city used and approved from time whereof there is no memory of men and according to the privileges, liberties, and franchises of the abovesaid city granted to the late bailiffs and citizens of the abovesaid city and their successors by divers charters of divers certain kings of England progenitors of the lady queen now, and afterwards granted, confirmed, and ratified to the mayor and community of the said city, their heirs and successors by the charters of the lord Henry VI late king of England progenitor of the now lady queen.

At this court comes William Hunt in his proper person and complains against William Wytherden concerning a plea of trespass on the case, and he finds pledges to prosecute his complaint abovesaid, viz., John Doo and Richard Roo. And according to the use and custom of the abovesaid city and according to the privileges, liberties and franchises abovesaid, the same William Hunt seeks process to be made for him against the same William Wytherden on the abovesaid plea etc. Therefore according to the use and custom of the abovesaid city and according to the privileges, liberties, and franchises abovesaid it is ordered to Sampson Prowde serjeant at mace within the liberty of the abovesaid city and minister of the abovesaid court that he take the abovesaid William Wytherden if etc., and him safely etc., so that he have his body before the aforementioned mayor at the next pie powder court of the said lady queen of the abovesaid city to be held in the abovesaid guildhall at the first hour after noon of the same day to answer the aforementioned William Hunt concerning the abovesaid plea [IMG 0842]; the same hour is given to the aforementioned William Hunt there etc.

And thereon the abovesaid William Hunt puts in his place Giles Wynston against the abovesaid William Wytherden concerning the abovesaid plea.

At which certain court before the aforementioned mayor at the abovesaid guildhall at the said first hour according to the use and custom and privileges, liberties, and franchise abovesaid, comes the abovesaid William Hunt by his abovesaid attorney. And the abovesaid serjeant at mace returned the abovesaid precept directed to him in the abovesaid form served and executed in all things, viz., that he by virtue of the abovesaid precept directed thereof to him previously took the abovesaid William Witherden, whose body he had at the aforementioned day and hour specified in the abovesaid precept as it was ordered to him.

At which certain day and hour the same William Witherden in his proper person appeared and put in his place John Smythe against the abovesaid William Hunt in the abovesaid plea.

And thereon according to the custom of the abovesaid city the abovesaid William Hunt by his abovesaid attorney complains against the abovesaid William Wytherden concerning the abovesaid plea of trespass on the case for this, viz., that whereas that William Hunt now plaintiff at the special request and instance of the abovesaid William Witherden now defendant and for the abovesaid defendant and for his debt by his certain obligatory writing bearing the date of January 18 in the 11^th year of the reign of the lady Elizabeth by the grace of God king of England, France, and Ireland, defender of the faith etc., [January 18, 1569] on the same day and year here at the city of Canterbury abovesaid in the parish of St. George the martyr and in the ward of Newingate of the same city and within the jurisdiction of this court by the name of William Hunt of Canterbury abovesaid yeoman acknowledged that he was bound and firmly obligated together with William Wytherden by the name of William Witherden of Canterbury yeoman jointly and severally to a certain John Austen of Ickham in the county of Kent yeoman in the sum of 100 marks of the lawful money of England to be paid to the same John Austen, his executors or assigns [IMG 0843] when he should be required thereof, and the abovesaid William Wytherden afterwards, scilt., on January 21 in the [IMG 1856] abovesaid 11^th year of our lady Elizabeth now queen of England etc., [January 21, 1569] here at the city of Canterbury abovesaid and in the parish and ward abovesaid undertook on himself and to the said plaintiff then and there faithfully promised to exonerate and hold harmless the aforementioned William Hunt both of the abovesaid obligatory writing and of all actions, suits, judgments, and executions concerning the abovesaid writing obligatory or of any impleading, occasion, or burdens by virtue of the said obligatory writing in any manner thenceforth bothered or burdened whenever he should be requested to this, and the abovesaid plaintiff in fact says that he the same plaintiff afterwards and before the affirmation of this complaint, viz., November 24 in the 13^th year of the reign of the now lady queen [November 24, 1570], here at the city abovesaid in the abovesaid parish and ward by Thomas Mercer then and there the serjeant at mace within the same city of Canterbury and at that time bailiff of John Nutt then the sheriff of the county of the city of Canterbury abovesaid by virtue of a certain precept by the same then sheriff of the county of that city by virtue of a writ of the lady queen of latitat previously directed to the same sheriff and at the suit of the said John Austen previously emanating from the court of the lady queen called the Queen’s Bench in the county of Middlesex was attached and arrested to answer the abovesaid John Austen in a plea of trespass before the lady queen at Westminster on Saturday next after the Octaves of St. Martin then next following, with this that the same William Hunt wants to verify that the same arrest, attachment, and taking was by reason and by virtue of the abovesaid obligatory writing, thereon the same William Hunt at that day before the same said queen at Westminster at the suit of the said John Austen according to the form and effect of the abovesaid writ appeared and found mainpernors, scilt., John Fen and Richard Denn; at which day John Austen put in his place Richard Gant against the aforementioned William Hunt concerning the same plea and then thereon by narrating he complained against the aforementioned William Hunt of this that, whereas the same William Hunt on January 18 in the abovesaid 11^th year of the reign of the lady queen [January 18, 1569] at the city of Canterbury in the parish of St. George the martyr in the ward of Newingate of the same city by his abovesaid writing obligatory sealed by the seal of the same William, the date of which is the day and year abovesaid, which the same John Austen here in court proffered, granted himself to be bound and firmly obliged to the aforementioned John Austen of Ickham in the county of Kent yeoman in the abovesaid 100 marks of the lawful money of England to be paid to the same John when he should be required thereof, nevertheless the abovesaid William Hunt although he was often required has not up to this time rendered the abovesaid 100 marks nor any penny thereof to the said John but refused to render them to the damage of the said John Austen of £10, and thereof he produced suit etc., by pretext of which the same William Hunt then and there confessed that the abovesaid obligatory writing was his deed, wherefore by the abovesaid court it was then granted that the abovesaid John Austen recover his debt abovesaid and 5s for his damages, outlays, and costs expended and had on his abovesaid suit; and afterwards day was given the aforementioned John Austen before the abovesaid lady queen on Saturday next after the quindene of Easter then next following; at which day the same John Austen by his abovesaid attorney appeared, and at that day he sought the process of capias ad satisfaciendum against the aforementioned William Hunt for his abovesaid debt, damages, outlays, and costs, and afterwards on July 4 in the abovesaid 13^th year of the reign of the abovesaid lady queen [July 4, 1571] now the lady queen’s writ of capias was directed by the abovesaid court [IMG 1857] to the aforementioned John Nutt then and now sheriff of the abovesaid county of that city to take the aforementioned William Hunt if etc., and him safely etc., so that he can have his body before the said lady queen at Westminster on Monday next after the quindene of Michaelmas to satisfy the aforementioned John Austen by the name of John Austen of Ickham in the abovesaid county of Kent yeoman of the abovesaid 100 marks of the debt as well as the abovesaid 5s for his damages that he sustained both by occasion of the detention of the abovesaid debt and for his outlays and costs put out by him on his suit in this part whereof he was convicted, whereby the same William Hunt afterwards, viz., July 26 in the 13^th year abovesaid [July 26, 1571] here at the abovesaid city in the parish of Blessed Mary Bredman and in the ward of Westgate of the same city by the aforementioned John Nutt then sheriff by virtue of the same writ was taken and led to the gaol of Westgate of the abovesaid lady queen of the abovesaid city and remained under the custody of the then sheriff and still remains, nevertheless the abovesaid William Wytherden little pondering his undertaking abovesaid but scheming deceitfully and falsely to deceive and defraud the aforementioned William Hunt, although he was often required to hold the aforementioned William Hunt harmless of all burdens by reason of the non-performance of the undertaking and promise abovesaid, he refused completely to do this and still refuses for this that the same William Hunt by reason of the abovesaid taking remains now in the custody of the aforementioned sheriff in the abovesaid gaol and is not permitted to go at large, wherefore he says that he is worse off and has damages to the value of £100, and thereof he produces suit etc.

And the abovesaid William Wytherden by John Smythe his abovesaid attorney comes and defends force and injury when etc., and seeks thereof day to emparl thereof, and it is granted to him etc. And thereon day is given to the abovesaid parties before the aforementioned mayor at the abovesaid guildhall until the next pie powder court there to be held, scilt., the 3^rd hour after noon of the same Saturday, viz., to the aforementioned William Wytherden to emparl and then to answer.

At which [IMG 844] certain court before the aforementioned mayor at the abovesaid guildhall on the said Saturday at the 3^rd hour abovesaid according to the use and custom of the abovesaid city and according to the privileges, liberties, and franchises abovesaid come the abovesaid parties by their abovesaid attorneys. And the abovesaid William Wytherden seeks further day thereof to emparl,, and it is granted to him etc. And thereon according to the customs and liberties and privileges abovesaid day is given further thereof to the abovesaid parties before the aforementioned mayor at the guildhall abovesaid until the next pie powder court there to be held, scilt., on the said Saturday on the 4^th hour after noon of the same day, viz., to the aforementioned William Wytherden to emparl and then to answer etc.

At which certain court according to the use and customs abovesaid and the liberties and privileges abovesaid before the aforementioned mayor at the abovesaid guildhall come the abovesaid parties by their abovesaid attorneys, and the abovesaid William Wytherden by his abovesaid attorney comes and defends force and injury when etc., and by protestation not acknowledging anything in the narration of the same plaintiff to be true, and protesting that the narration of the same defendant [sic] is less sufficient in law to which he has no need nor by the law of the land is bound to answer, but, all advantages being saved to himself when thereof thereafter he should want to speak, by plea nevertheless he says that he did not undertake on himself nor faithfully promise to the aforementioned William Hunt in the manner and form as William Hunte above complains against him, and of this he puts himself on the countryside. And the abovesaid William Wytherden similarly. Therefore according to the use and custom and the liberties and privileges abovesaid it is ordered to the aforementioned serjeant at mace within the city abovesaid and minister of the abovesaid court that he should make to come before the aforementioned mayor at the guildhall abovesaid at the next pie powder court of the said lady queen of the abovesaid city to be held, scilt., on the said Saturday at the fifth hour after noon of the same day 12 free and lawful men inhabiting within the abovesaid city by whom etc., and who neither etc., to make the abovesaid jury according to the use and customs abovesaid and according to the privileges, liberties, and franchises abovesaid between the abovesaid parties in the abovesaid plea etc. The same day and hour are given to the abovesaid parties there etc.

At which certain pie powder court of the said lady queen held before the aforementioned mayor at the abovesaid guildhall according to the use and custom abovesaid and according to the privileges, liberties and franchises abovesaid come the abovesaid parties by their abovesaid attorneys. And the abovesaid serjeant at mace of the abovesaid city and minister of the abovesaid court returned the abovesaid precept directed to him in the abovesaid form together with the panel of the names of the jurors annexed to that precept served and executed in all things, the names of which certain jurors, viz., William Clarke, William Berry, John Danyell, William Browne, William Brooke, Leonard Doggrell, Edmond Nicollson, Robert Keys, Thomas Long, William Newton, Gilbert Penny, John Collard, John Sommar, Thomas Lame, Oliver Symons, Edward Wickham, John Dale, and Stephen James, of whom none came etc. Therefore according to the use and customs and the liberties and privileges abovesaid it is ordered to the aforementioned serjeant at mace of the city abovesaid and minister of the abovesaid court that he have the bodies of the abovesaid jurors before the aforementioned mayor at the guildhall abovesaid at the next pie powder court of the said lady queen to be held on the said Saturday at the 6^th hour after noon of the same day to make the abovesaid jury etc. The same day and hour are given to the abovesaid parties there etc. [IMG 0845]

At which certain pie powder court of the said lady queen held before the aforementioned mayor at the abovesaid guildhall on the said Saturday at the abovesaid 6^th hour according to the use and customs abovesaid and according to the privileges, liberties, and franchises abovesaid come the abovesaid parties by their abovesaid attorneys. And the abovesaid serjeant at mace of the abovesaid city and minister of the abovesaid court returns the abovesaid precept directed to him in the abovesaid form served and executed in all things etc. Thereon the jurors of the abovesaid jury, similarly exacted, came, who chosen, tried, and sworn to tell the truth concerning the premisses, say on their oath that the abovesaid William Wytherden understood on himself and faithfully promised to the aforementioned William Hunte in the manner and form as the abovesaid William Hunt above alleged, and they assess the damages of the same William by occasion of the premisses beyond his outlays and costs put out by that William Hunt on his suit in this part at £80 and for those outlays and costs at 2d. Therefore it is considered that the abovesaid William Hunt recover against the abovesaid William Wytherden his abovesaid damages, viz., the abovesaid £80 2d assessed by the abovesaid jury in the abovesaid form as well as 36s8d adjudicated to the same William Hunt at his request for his outlays and costs put out on his suit by the court here by way of increment, which certain damages in all amount to £81 16s 10d, and the abovesaid William Witherden in mercy etc.

Afterwards, scilt., on Monday after the morrow of All Souls this same term before the lady queen at Westminster comes the abovesaid William Witherden in his proper person, and he says that in the abovesaid record and process and also in the rendering of the abovesaid judgment manifestly it was erred for this, viz.,

that each pie powder court to be held in any city, borough, or town should be held in the same city, borough or town by reason of a market or fair being then in the same town, in this that it is not alleged that the abovesaid pie powder court held in the guildhall of the city abovesaid on the said July 28 in the abovesaid 13^th year [July 28, 1571] before the aforementioned James Drayton mayor of the city abovesaid was held by reason of the market or fair being in the same town then but it is only alleged that the abovesaid court was held according to the customs of the abovesaid city and according to the privileges, liberties, and franchises of the abovesaid city granted to the late bailiffs and citizens of the abovesaid city and their successors by divers [IMG 1858] charters of divers late kings of England progenitors of the lord king now successor, and afterwards granted, confirmed and ratified to the mayor and community of the said city and this manner their successors by charters of the lord Henry VI late king of England progenitor of the lord king now without special demonstration that the same court was held by reason of a market or fair, it was manifestly erred as above it appears of record.

Moreover in the record and process abovesaid and also in the rendering of the abovesaid judgment manifestly it was erred in this that the abovesaid William Huntt in his abovesaid narration did not allege that the abovesaid premisses whereof the same William Hunt narrated against the abovesaid William Witherden in the abovesaid plea of trespass on the case was done in a fair or in a market then being in the abovesaid town as of right it is and ought it was manifestly erred as above appears of record

And particularly in the record and process abovesaid and also in the rendering of the abovesaid judgment manifestly it was erred for this, viz., that according to the law and custom of the realm of the said queen of England in whatever action of trespass on the case in which a defendant in this manner action should plead to issue and put himself on the countryside, the plaintiff in this manner action should put himself on the countryside similarly before any writ or precept of venire facias should be adjudicated to try this manner issue, in this that on the plea of the same William Witherden abovesaid whereon the same William put himself on the countryside to be tried the abovesaid William Hunt did not put himself on the countryside, scilt., before the writ of venire facias was adjudicated, but the writ of venire facias was adjudicated without this manner replication of the abovesaid William Hunt, as above similarly it appears of record etc.

And finally in the abovesaid record and process and also in the rendering of the abovesaid judgment it appears that the abovesaid serjeant at mace and minister of the court abovesaid on the abovesaid precept adjudicated by the aforementioned mayor to the same serjeant at mace out of the court of the city abovesaid returned the names of 18 jurors to try the issue abovesaid joined between the same William Wytherden and William Hunt above, and that the same 18 jurors summoned by the abovesaid serjeant at mace of the abovesaid city by virtue of the abovesaid precept to have the bodies of the same jurors before the aforementioned mayor to make the abovesaid jury appeared before he aforementioned mayor and there chosen, tried, and sworn to tell the truth concerning the issue abovesaid said on their oath that the abovesaid William Witherden undertook on himself as specified above in the abovesaid record, in this that it is understood and intended by the abovesaid record that all those 18 named in the abovesaid jury were sworn to try the issue abovesaid joined between the same William Huntt and the aforementioned William Wytherden above, because according to the law and custom of the realm of the lady queen only 12 of the abovesaid 18 jurors ought to have been sworn in that jury it was manifestly erred, as above similarly it appears of record.

And the same William Witherden seeks the lady queen’s writ to warn the abovesaid William Hunt to be before the lady queen to hear the record and process abovesaid, and it is granted to him etc. Whereby it is ordered to the sheriff that he by prudent etc., make it to be known to the aforementioned William Hunt that he be before the lady queen on the morrow of the Purification of the Blessed Mary to hear the record and process abovesaid if etc., and further etc. The same day is given to the aforementioned William Wytherden etc.

At which day before the lady queen at Westminster comes the abovesaid William Wytherden in his proper person, and the sheriff returns that the abovesaid William Hunt has nothing in his bailiwick whereby he can make it to be known nor is he found in the same. Therefore as formerly it is ordered to the sheriff that he make it to be known to the aforementioned William Huntt that he be before the lady queen on the month after Easter to hear the record and process abovesaid if etc., and further etc. The same day is given to the aforementioned William Wytherden etc.

And the abovesaid William Hunt on the 4^th day of the plea solemnly exacted did not come but defaulted. Thereon the abovesaid William Wytherden as before says that in the abovesaid record and process and also in the rendering of the abovesaid judgment manifestly it was erred by alleging the abovesaid errors by him alleged above in the abovesaid form, and he seeks that the abovesaid judgment on account of the abovesaid errors and others being in the abovesaid record and process be revoked, annulled, and wholly had for nothing and that the court of the lady queen here proceed to the examination both of the record and process abovesaid and of the abovesaid errors and that the abovesaid William Wytherden be restored to everything that he lost by occasion of the abovesaid judgment etc. And because the court of the lady queen here is not yet advised to render its judgment of and on the premisses, day thereof is given to the aforementioned William Wytherden before the lady queen at Westminster until the morrow of Holy Trinity wherever etc., to hear their judgment thereof, because the court of the lady queen here thereof not yet etc.

At which day before the queen at Westminster comes the abovesaid William Wytherden in his proper person, and, because the court of the lady queen here is not yet advised to render its judgment of and on the premisses, day is given thereof to the aforementioned William Wytherden before the lady queen at Westminster until the Octaves of Michaelmas wherever etc., to hear their judgment thereof, because the court of the lady queen here thereof not yet etc.

[Margination:]

Let the judgment be revoked.