William Heryng and Elizabeth his wife lately wife of Simon Torold deceased v. Edward Torold
Eye attorney: Thomas Smith
King's Bench error plaintiff's attorney: George Symcott
Error in king's bench (Easter term, 1536) on an action in the court of Eye, Suffolk
AALT images for Heryng v. Torold This action of error on an action of trespass on the case in the court of
Eye concerned a simple promise to pay an annuity to fulfil the terms of
a will (thus, substantively, indebitatus assumpsit) and fraudulent non-payment. The record sent forward to the king’s bench was very spare.
The error allegations would indicate what the plaintiff in error
thought the record had to contain: the basis of the local court’s
jurisdiction, the judge before whom the case was held, the details of
each continuation. More substantively, he alleged that the defendant
should always get one continuation after the issuance of the venire
facias, an idea that almost certainly derived out of king’s court
practice. He also objected that the jury had found a debt instead of
only the damages for non-payment of the debt: the precise issue on
which king’s bench and common pleas were coming to disagree and
which would be the central issue of Slade’s Case. The lord king sent to the bailiffs of his town or borough of Eye his writ
close in these words: Henry VIII by the grace of God king of England and France,
defender of the faith and lord of Ireland and on earth the head of
the English church to the bailiffs of his town or borough of Eye,
greetings. Because in the record and process and also in the
rendering of judgment of the plea that was before you in our court
there without our writ according to the custom of the same town or
borough between William Heryng and Elizabeth his wife lately the
wife of Simon Torold deceased and Edward Torold concerning a
certain trespass inflicted on the same William and Elizabeth by the
aforementioned Edward as it is said manifest error intervened to
the grave damage of the same Edward as from his complaint we
have received, we, wanting the error if any there was to be
corrected in due manner and full and speedy justice to be done to
the same Edward in this part, order you that [if] judgment has been
rendered thereof, then you should send the abovesaid record and
process with all things touching them openly and distinctly to us
under your seals, and this writ, so that we have them at one month
after Easter wherever we shall be then in England, so that, the
record and process abovesaid 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 should be done. Tested me myself
at Westminster February 4 in the 27th year of our reign [February 4,
1536]. The record and process of which mention is made in the abovesaid writ
follow in these words: Eye; Complaints. The court held on Saturday next after the feast
of St. Martin the bishop in the 26th year of the reign of King Henry
VIII [November 11, 1534]. William Heryng and Elizabeth his wife lately the wife of Simon
Torold deceased complain against Edward Torold in a plea of
trespass on the case. William Heryng and Elizabeth his wife lately the wife of Simon
Torold deceased by Thomas Smith his attorney complain against
Edward Torold concerning a plea of trespass on the case etc., for
this that, whereas the abovesaid Edward after the death of the
abovesaid Simon, scilt., June 10 in the 23rd year of the reign of the
now lord king [June 10, 1531] at Eye within the jurisdiction of this
court undertook on himself and faithfully promised to the
aforementioned Elizabeth while she was single that he from the
feast of St. Michael the Archangel in the 23rd year of the reign of
the now lord king [September 29, 1531] well and faithfully would
pay or cause to be paid to the same Elizabeth annually a certain
annuity of £4 sterling each year during the natural life of the same
Elizabeth at two annual terms, scilt., at the feasts of Easter and of
St. Michael the Archangel, by equal portions according to the
tenor, effect, and true intention of the last will of the abovesaid
Simon father of the same Edward as by the same will it manifestly
appears, nevertheless the abovesaid Edward, scheming craftily and
deceitfully to defraud the abovesaid Elizabeth of the payment of
the abovesaid annuity of the abovesaid £4 and totally to deceive
the same Elizabeth thereof, although often asked for the payment
of the abovesaid annuity of the same £4 to be made to the same
Elizabeth while she was single and to the same William and
Elizabeth after espousals celebrated between the same William and
Elizabeth, viz., at each year twice for three years elapsed and ended
at the feast of St. Michael the Archangel in the 26th year of the
reign of the now lord king [September 29, 1534], to this time has
not made or caused to be made any payment thereof to the
aforementioned Elizabeth while she was single nor to the same
William and Elizabeth after espousals celebrated and had between
them according to the abovesaid promise and undertaking [but] to
this time has refused and still refuses to the damage of the same
William and Elizabeth of £40, and thereof he produces suit etc. Eye. The court held on Saturday next before the feast of St.
George the martyr in the 26th year of the reign of King Henry VIII
[April 23, 1535: the text would indicate 1534, but it must be 1535] And the abovesaid Edward in his proper person comes and defends
force and injury when etc., and says that the abovesaid William
and Elizabeth ought not have his abovesaid action against him,
because he says that he did not undertake or promise the
aforementioned Elizabeth while she was single to pay the
aforementioned Elizabeth a certain annuity of £4 in the manner and
form as the abovesaid William and Elizabeth above complain
against him, and this etc. Eye. The court held on Saturday next after the feast of the
Ascension of the Lord in the 27th year of the reign of King Henry
VIII [May 8, 1535]. [IMG 0116] And the abovesaid William and Elizabeth as before say that the
abovesaid Edward undertook to the same Elizabeth while she was
single to pay the aforementioned Elizabeth the abovesaid annuity
of £4 in manner and form as the abovesaid William and Elizabeth
by their writ and narration abovesaid suppose above, and he (sic)
seeks that this be inquired by the countryside. And the abovesaid
Edward similarly. Therefore 12 etc. Eye. The court held on Saturday on the feast of the name of Jesus
in the 27th year of the reign of King Henry VIII [August 7, 1535]. Inquest between William Heryng and Elizabeth his wife plaintiffs
and Edward Torold defendant by the oath of Richard Vale,
William Fanner, Robert Breche, Anthony Gyssyng, Simon Wace,
John Peper, John Manystye, John Beker, Richard Praty, John Rede,
Peter Boteley, and Richard Dexter, who say that the abovesaid
Edward undertook on himself and promised to pay Elizabeth the
wife of William Heryng while she was single an annuity of £4, and
thus he owes £12 for the three years as declared, and for damages
20d. Expenses, 20d. Eye. The court held on Saturday next before the feast of the
Purification of the Blessed Mary in the 27th year of the reign of
King Henry VIII [January 29, 1536]. Whereas at the court held on Saturday on the feast of the name of
Jesus in the 27th year of the reign of King Henry VIII [August 7,
1535] it was adjudicated by the inquest on which William Heryng
and Elizabeth his wife plaintiffs and Edward Torold defendant put
themselves in a plea of trespass on the case that the same Edward
had undertaken and promised to pay Elizabeth the wife of William
Heryng while she was single annually £4 and thus to owe for three
years £12 as in the declaration etc. and for expenses 40d, therefore
it is considered by the court that they recover both the abovesaid
£12 for their damages and 40d for the expenses of the court, and
for the increment of the court by judgment of the bailiff and the
court, 10s to the plaintiffs by levari facias. And the defendant in
mercy etc. Afterwards, scilt., on [blank] day of May this same term before the lord
king at Westminster comes the abovesaid Edward Torold by George
Symcott his attorney and says that in the record and process abovesaid
and also in the rendering of the abovesaid judment it was manifestly
erred, viz., in the first place it was erred that it does not appear in the record
abovesaid by what authority the abovesaid court was held, whether
by prescription or by virtue of some letters patent of the now lord
king or his progenitors etc. Likewise it was erred that whereas the abovesaid William Heryng
and Elizabeth his wife lately the wife of Simon Torold at the
abovesaid court held there on Saturday next after the feast of St.
Martin the bishop in the 26th year of the reign of the said now lord
king they affirmed their complaint against the abovesaid Edward
Torold concerning a plea of trespass on the case, in this that it does
not appear in that record before which judge that court was then
held etc. Likewise it was erred that after anyone put himself on any jury
there should be allocated to him one essoin or one default, in this
that the abovesaid jury between the abovesaid parties was taken on
the first precept of venire facias, on which day the same Edward
Torold was not exactable nor bound to appear etc. Likewise it was erred that in the abovesaid record it does not
appear on which day, which place, and before which judge the
same writ of venire facias 12 etc., between the abovesaid parties
was returnable. Likewise it was erred that, whereas at the abovesaid court held on
the Saturday next before the feast of St. George the martyr in the
26th year of the reign of the now lord king until the next court held
there, scilt., on the Saturday next after the feast of the Ascension of
the Lord in the 27th year of the reign of the said lord king no
continuation was had or made, whereby that plea was totally
discontinued etc. Likewise, it was erred in the abovesaid record that, whereas the
abovesaid William Heryng and Elizabeth his wife prosecuted their
complaint of a plea of trespass on the case against the abovesaid
Edward Torold, at which certain narration the abovesaid Edward
appearing at the said court held on the said Saturday immediately
before the feast of St. George the martyr in the 26th year abovesaid
at Eye abovesaid pleaded that he did not undertake in the manner
and form etc., and, issue thereof having been joined between the
same parties, after various continuations the jury thereof being
empaneled and sworn said on their oath and gave their verdict that
the said Edward owed to the aforementioned William and
Elizabeth £12 etc., in this that the same jurors gave their verdict
that the said Edward owed the said £12, whereas the same jurors
were burdened to inquire concerning the damages of the said
plaintiffs and not of any debt, so that the same jurors did not find
the said issue joined between the abovesaid parties as above it
appears from the record etc. And the same Edward seeks that the abovesaid judgment on account of
the abovesaid errors and others found in the record and process
abovesaid be revoked and annulled and had completely as null. And he
seeks a writ to warn the aforementioned William Heryng and Elizabeth
to be before the lord king to hear the abovesaid record and process, and
it is granted to him etc., whereby it is ordered to the sheriff of Suffolk
that by prudent [etc.] he should make it known to the aforementioned
William and Elizabeth that they be before the lord king at the quindenes
after St. Michael wherever etc., to hear the record and process abovesaid
if etc., and further etc. The same day is given to the aforementioned
Edward.
a,
b
