William Marler executor of Richard Marler v. Thomas Wylmer

     Coventry attorneys: Thomas Gregori, John Heywood

[IMG 0092] The lord king sent to the mayor, bailiffs, and sheriffs of the county of his city of Coventry his writ close 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, bailiffs, and sheriffs of the county of his city of Coventry, 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 city abovesaid without our writ according to the custom of the same city between William Marler executor of the testament of Richard Marler and Thomas Wylmer concerning a certain plea of deceit on the case, as it is said, manifest error intervened to the grave damage of the same Thomas as we have received from his complaint, we, wishing the error if any there was to be corrected in due manner [and] open and speedy justice to be done to the abovesaid parties in this part, order you as formerly that, if judgment was rendered thereof, then send distinctly and clearly the record and process abovesaid with all things touching them to us under your seals and this writ so that we have them on the morrow of the Purification of the Blessed Mary wherever then we shall be in England so that, the record and process abovesaid having been inspected, we may make to be done further for the correction of that error as of right and according to the law and custom of our realm of England should be done, or signify to us the cause why you have not wanted or not been able to execute our mandate formerly directed to you thereof. Tested me myself at Westminster January 16 in the 30^th year of our reign [January 30, 1539].

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

The City of Coventry. Pleas in the court of the lord king of the city of Coventry held at Coventry abovesaid before Christofer Waid mayor of the abovesaid city and Henry Over and Christofer Waren bailiffs of the same city on Monday, viz., December 24 in the 29^th year of the reign of King Henry VIII [December 24, 1537] according to the liberties, privileges, use, and custom of the abovesaid city from time whereof memory does not run to this time used and approved etc.

The City of Coventry. At this court comes William Marler executor of the testament of Richard Marler his father in his proper person and complains against Thomas Wilmer of Coventry in the county of the city of Coventry mercer concerning a plea of deceit on the case, and he finds pledges to prosecute his complaint abovesaid, scilt., Baldwin Grisold and John Hammond. And thereon the same William sought process to be made for him thereof against the abovesaid Thomas Willmer according to the law, use, and custom of the abovesaid city etc. And it is granted to him etc., thereon according to the law, use and custom of the abovesaid city etc., to this time used. It is ordered to the sub-bailiff of the abovesaid city and minister of the court abovesaid, viz., Baldwin Grisold, that he put by gage and safe pledges the abovesaid Thomas Willmer such that he be at the same court on the same Monday before the aforementioned mayor and bailiffs of the abovesaid city according to the use and custom of the same city used and approved from time whereof memory does not run. The abovesaid Baldwin Grisold sub-bailiff comes and according to the law, use, and custom abovesaid ore tenus certifies that the abovesaid Thomas Willmer has nothing within the liberties of the abovesaid city whereby he can be attached. Therefore according to the law, use, and custom abovesaid it is ordered to the sub-bailiff abovesaid etc., that he should take the abovesaid Thomas Willmer if etc., and safely etc., such that he have his body before the mayor and bailiffs of the abovesaid city at the next court of the lord king to be held in the abovesaid city, scilt., Monday January 7 next following [January 7, 1538] according to the use and custom abovesaid to answer the aforementioned William concerning the abovesaid plea. The same day is given to the same William there etc. And thereon the same William puts in his place Thomas Gregori against the abovesaid Thomas Wilmer concerning the abovesaid plea etc.

At which certain court held on the said Monday January 7 [January 7, 1538] before the mayor and bailiffs abovesaid according to the use and custom abovesaid comes the abovesaid William Marler by his abovesaid attorney. And the aforementioned sub-bailiff and minister of the court etc., returned and certified to the abovesaid court then there that he took the abovesaid Thomas Wilmer, whose body he has ready before the aforementioned mayor and bailiffs then there etc.

The City of Coventry. Pleas in the court of the lord king of the abovesaid city held there before Christofer Waid mayor of the city of Coventry, Henry Over, and Christofer Waren bailiffs of the same city on Monday January 7 in the 29^th year of the reign of King Henry VIII [January 7, 1538] according to the liberties, privileges, use and custom of the abovesaid city used and approved from time whereof memory does not run until now etc.

The City of Coventry. Thomas Wilmer of Coventry in the county of the city of Coventry mercer was attached to answer William Marler executor of the testament of Richard Marler his father now deceased concerning a plea of deceit on the case etc. And wherefore the same William Marler by Thomas Gregorie his attorney complains that, whereas the same Thomas at Coventry in the county of the city of Coventry on September 4 in the year of the lord 1523 bought from the abovesaid Richard Marler [IMG 0093] a half ell of tawny chamlet, a half ounce of saffron, a yard and a half and half of one quarter of an ell of black velvet, half of one ell of satin from “siprers,” half of one yard and half of one quarter ell of sarcenet, 1 and three-quarters of a yard of black silk ribbon, and three pairs of German rivets for £4 13s8d of lawful English money to be paid to the same Richard when he should be asked thereof, which certain £4 13s8d the abovesaid Thomas did not pay to the aforementioned Richard in his life nor to the abovesaid William Marler after his death, whereby the same Thomas after the death of the aforementioned Richard, viz., July 2 in the 18^th year of the now lord king [July 2, 1526] at the said city of Coventry promised and undertook on himself to pay well and faithfully and without further delay there to the aforementioned William Marler the said £4 13s8d on August 2 then next following [August 2, 1526], on which certain promise and undertaking of the payment of the said £4 13s8d to be made in the abovesaid form the same William after the undertaking and promise abovesaid and before the abovesaid August 2, scilt., on July 12 in the abovesaid year [July 12, 1526] bought divers merchandise for £4 13s8d from a certain Thomas White at Coventry abovesaid by promising to the same Thomas payment of the same £4 13s8d at the said August 2 [August 2, 1526], nevertheless Thomas Wilmer scheming wholly to defraud and toll the same William Merler of the abovesaid £4 13s8d although often required by the aforementioned William to do this at the abovesaid August 2 did not at all take care to pay but completely refused to do this and still refuses, on account of which certain default of the payment of the said £4 13s8d at the abovesaid day of payment of the same to the same William as set out before in the form abovesaid to be made, the abovesaid William was unable to pay the said £4 13s8d to the aforementioned Thomas White at the abovesaid day of payment of the same, whereby the same William completely lost divers bargains that he was supposed to make with the aforementioned Thomas White whereby he was supposed to take for his sustenance, wherefore he says that he is worse off and has damages to the value of £10, and thereof he produces suit etc.

And the abovesaid Thomas Willmer in his proper person comes and defends force and injury when etc., and says that the matter alleged in the narration abovesaid against him is not sufficient in law to maintain the abovesaid action, wherefore he seeks judgment that the abovesaid William be precluded from having his abovesaid action etc.

And the abovesaid William Merler by his abovesaid attorney, since he above declared and alleged sufficient matter in law to maintain his abovesaid action [IMG 0247] and the abovesaid Thomas Willmer does not deny them or answer anything to them, seeks judgment and his damages to be adjudicated to him etc. 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 to the abovesaid parties in the state as now before the mayor and bailiffs of the abovesaid city until the next court of the lord king to be held here on Monday January 21 next to come [January 21, 1538] to hear concerning the premisses because the court of the lord king here is not yet etc. And thereon the same Thomas puts in his place John Heywood against the abovesaid William Merler in the abovesaid plea etc.

At which certain court held here before the aforementioned mayor and bailiffs on the abovesaid Monday January 21 [January 21, 1538] come the parties abovesaid by their abovesaid attorneys etc. And, this abovesaid plea having been seen and understood by the court of the lord king here and diligently inspected and examined, it seems to the same court that the abovesaid plea by the abovesaid William Marler pleaded above is sufficient in law, whereby the abovesaid William ought to recover his damages against the abovesaid Thomas etc., but because the court here does not know what damages the abovesaid William sustained both by occasion of the deceit on the case abovesaid and by his outlays and costs put out by him on his suit in this part, it is ordered to the aforementioned sub-bailiff and minister of the abovesaid court that according to the law and custom of the city abovesaid he should make to come here at the next court to be held before the aforementioned mayor and bailiffs of the abovesaid city, viz., Monday February 4 next to come [February 4, 1538] 12 etc., to inquire what damages the abovesaid William sustained both by occasion of the deceit on the case abovesaid and by his outlays and costs put out in this part on his suit etc. The same day is given to the abovesaid parties here etc.

At which certain court held before the aforementioned mayor and bailiffs on the said Monday February 4 [February 4, 1538] comes the abovesaid William Merler by his attorney abovesaid. And the abovesaid sub-bailiff and minister of the court abovesaid returned the precept directed to him concerning the names of the 12 jurors thereof in this part served and executed in all things; thereon the jurors empaneled, viz., Henry Hind, Thomas Napton, John Foxall, Thomas Ryley, Thomas Philips, Christofer Bromley, Thomas Saunders, Humfrey Walker, George Mathewe, Thomas Busted, John Clerke, Hugh Prowdelove, exacted, similarly come, who are sworn to tell the truth on the premisses; and they say on their oath that the abovesaid William Marler sustained damages by occasion of the deceit on the case abovesaid beyond his outlays and costs sustained by him on his suit in this part at £5 13s4d, and for those outlays and costs at 6s8d. Therefore it is considered that the abovesaid William recover against the abovesaid Thomas Wilmer his damages abovesaid assessed by the abovesaid jurors in the abovesaid form, and that the same Thomas Wilmer be in mercy etc.

Afterwards, scilt., on May 9 in that same term before the lord king at Westminster comes the abovesaid Thomas Wylmer by Richard Heywode his attorney, and immediately he says that in the record and process abovesaid and also in the rendering of the abovesaid judgment manifestly it was erred, viz.,

In the first place it was erred that, whereas the abovesaid Richard Marler prosecuted his complaint abovesaid concerning a plea of deceit on the case, in this that no complaint, action, or suit is maintainable against any defendant by this manner of words “concerning a plea of deceit on the case,” but rather on these words “concerning a plea of trespass on the case,” as above appears of record.

Likewise it was erred that, whereas the abovesaid William Marler as executor of the testament or last will of Richard Marler his father deceased prosecuted his abovesaid action against the abovesaid Thomas Wylmer concerning and for divers parcels of goods bought by the aforementioned Thomas Wylmer from the abovesaid testator in his life and in the first part of the narration abovesaid it appears that the abovesaid Thomas Wylmer would pay and content the aforementioned testator for the abovesaid parcels of the goods £4 13s8d, in this, viz., that on such a contract the abovesaid executor would prosecute such an action for the recovery thereof as the testator would have prosecuted if he were alive, viz., by complaint of debt and not of deceit on the case as above similarly appears of record. [IMG 0248]

Likewise it was erred that, whereas the abovesaid William Marler narrated against the abovesaid Thomas Wylmer that the same Thomas Wylmer on the day and year abovesaid specified in the narration abovesaid had undertaken and faithfully promised to pay and content to the aforementioned William the abovesaid £4 13s8d etc., in this that in that narration it does not appear on what cause the abovesaid Thomas made the abovesaid undertaking, viz., neither by money paid to him in advance nor by receipt of parcel of the abovesaid goods, and thus “ex nudo pacto non oritur actio” [from a bare agreement arises no action].

And further it was erred that, whereas the abovesaid William prosecuted his abovesaid complaint as executor of the testament or last will of Richard Marler his father, in this that in all that narration no sufficient authority appears that the abovesaid William was executor of the testament or last will of the abovesaid testator nor were any letters testamentary of any ordinary proffered in the abovesaid court whereby it could appear that the abovesaid William was executor of the abovesaid testament, so that the abovesaid William had no authority or power to maintain any suit of this kind against the aforementioned Thomas etc.

And further it was erred that at the abovesaid court held at the city of Coventry abovesaid on the abovesaid Monday February 4 in the abovesaid year no appearance and no default was recorded of the abovesaid Thomas, so that the abovesaid plea was totally discontinued, as above appears of record.

And he seeks a writ of the lord king to warn the abovesaid William Marler to be before the lord king to hear the record and process abovesaid. And it is granted to him etc., whereby it is ordered to the sheriff that by prudent etc., he should make to be known to the aforementioned William Marler that he be before the lord king on the Octaves of Holy Trinity wherever etc., to hear the record and process abovesaid if etc., and further etc. The same day is given to the aforementioned Thomas Wylmer etc.