Thomas Papworth of Alconbury-Weston, husbandman v. Thomas Varnam of Little Stukeley, husbandman
Huntingdon attorneys: Michael Laxton, John Lukyn
for another Huntingdon error case with attorneys William Walden, Anthony Smythe, see
Error plaintiff's king's bench attorney: John Grene
Error in king's bench (Hilary term, 1608) on an action in the court of Huntingdon, Huntingdonshire
AALT images for Papworth v. Varnam This action of error on a suit of trespass on the case for the purchase
of wool in the court of Hungtington contains the full text of the town
court precept of venire facias and an assignment of error challenging
the appropriate first process to be issued. The lord king sent to the bailiffs and burgesses of his town of
Huntingdon 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 bailiffs and burgesses of
his town of Huntingdon, 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 town without our writ
according to the custom of the same town between Thomas
Papworth and Thomas Varnam concerning a certain trespass on the
case inflicted on the same Thomas Papworth by the
aforementioned Thomas Varnam as it is said manifest error
intervened to the grave damage of the same Thomas Varnam 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 thereof has been rendered thereof then send distinctly
and openly the abovesaid record and process with everything
touching them to us under your seals, and this writ, so that we have
them on the Octaves of the Purification of Blessed Mary wherever
then we shall be in England so that, the record and process thereof
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 should be done. Tested me myself at
Westminster January 18 in the 5th year of our reign of England,
France, and Ireland and the 41st of Scotland. Morley. The record and process of which mention is made in the abovesaid writ
follow in these words: The Borough of Huntingdon. Pleas at the common hall of the
abovesaid borough before George Lambe and William Wytlsey
bailiffs of the same town and borough according to the custom of
that borough used and approved from a time whereof there is no
memory of men in the same lord king’s court held there on October
13 in the 5th year of the reign of our lord James by the grace of God
king of England, Scotland, France, and Ireland and the 41st of
Scotland [October 13, 1607]. At this court came Thomas Papworth of Alconbury-Weston in the
county of Huntingdonshire husbandman in his proper person and
complains against Thomas Varnam of Little Stukeley in the
abovesaid county husbandman concerning a plea of trespass on the
case etc. And there are pledges to prosecute: John Doo and
Richard Roo. And he seeks that the abovesaid Thomas Varnam
according to the custom of the abovesaid borough be attached by
his body to answer to the same Thomas Papworth concerning the
abovesaid plea. And it is granted to him etc. Therefore according
to the custom of the abovesaid borough it was ordered by the
abovesaid bailiffs of that borough to William Jaye serjeant at mace
and minister of this court that he take the abovesaid Thomas
Varnam if he should be found within the jurisdiction of this court
and guard him safely so that he have his body here at the next lord
king’s court to be held here, scilt., October 29 next to come to
answer the aforementioned Thomas Papworth concerning the
abovesaid plea. At which certain next court held here, scilt., at the common hall of
the abovesaid borough on the abovesaid October 29 before the
aforementioned bailiffs of that borough according to the custom
abovesaid came both the abovesaid Thomas Papworthe and the
abovesaid Thomas Varnam in their proper persons. And the
abovesaid William Jaye serjeant at mace and minister of this court
now sends that he according to the custom of the abovesaid
borough took the body of the abovesaid Thomas Varnam, whose
body now he has here ready as it was ordered to him in the
abovesaid form. And thereon according to the custom of that borough came
here in court a certain Cuthbert Peacocke in his proper person and
according to the custom of the abovesaid borough became pledge
for the aforementioned Thomas Varnam in the abovesaid plea, viz.,
he mainperned and undertook on himself that if it happen that the
judgment is rendered in court here for the aforementioned Thomas
Papworth against the aforementioned Thomas Varnam in the
abovesaid plea that then the same Thomas Varnam will render his
body in execution of this manner judgment in the court here or
satisfy the aforementioned Thomas Papworthe of his damages and
costs to be adjudicated to him here in same plea, otherwise the
same Cuthbert Peacocke wants and grants those damages and costs
to be made from the same Cuthbert Peacock’s land and chattels
according to the custom of the abovesaid borough and to be levied
to the work and use of the abovesaid Thomas Papworth etc. Thereon the abovesaid Thomas Papworthe puts in his place
Michael Laxton against the aforementioned Thomas Varnam
concerning the abovesaid plea. And thereon the abovesaid Thomas Papworthe by his
abovesaid attorney seeks a day for narrating until the next court,
and he has etc. [IMG 1388] At which certain next court held here, scilt., November 25 at the
common hall of the abovesaid borough before the aforementioned
bailiffs of that borough according to the abovesaid custom the
abovesaid Thomas Papworthe by his abovesaid attorney says that,
whereas in consideration that the abovesaid Thomas Papworthe at
the special instance and request of the same Thomas Varnam
would sell and deliver to a certain Ralph Claye 7 tods of wool, in
English, todds of Wolle, the same Thomas Varnam on July 1 in the
5th year of the reign of the Lord James now king of England etc., at
Huntingdon here within the jurisdiction of this court in
consideration thereof undertook on himself and then and there
faithfully promised to the same Thomas Papworthe to pay the same
Thomas Papworth £7 2d at or before August 1 then next following,
and the same Thomas Papworthe in fact says that he sold and
delivered to the aforementioned Ralph Claye the abovesaid 7 tods
of wool, nevertheless the abovesaid Thomas Varnam not at all
caring for his promise and undertaking but scheming and intending
hotly and deceitfully to deceive and defraud the same Thomas
Papworthe in this part, although often asked has not yet paid the
abovesaid £7 2s to the same Thomas Papworth but to this time has
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 £10. And
thereof he produces suit etc. And the abovesaid Thomas Varnam by John Lukyn his
attorney came and sought license to emplead until the next court
and had etc. At which certain next court held, scilt., on December 9 [December
9, 1607] at the common hall of the borough abovesaid before the
aforementioned bailiffs according to the custom abovesaid came
the abovesaid Thomas Varnam by his abovesaid attorney and
defends force and injury when etc. And by protesting says that the
abovesaid Thomas Papworthe did not sell or deliver to the
aforementioned Ralph Claye the abovesaid 7 tods of wool at the
request and instance of the aforementioned Thomas Varnam,
nevertheless for a plea the aforementioned Thomas Varnam says
that he did not undertake in the manner and form as the abovesaid
Thomas Papworth narrated against him. And of this he puts
himself on the countryside. And the abovesaid Thomas Papworthe
similarly. And at that court came the abovesaid Thomas Papworthe by
his abovesaid attorney and sought process to make to come 12
prudent and lawful men of his bailiwick that they be at the next
court to make a certain jury of the countryside between the
abovesaid parties to be held, scilt., on December 22 at the common
hall of the abovesaid borough before the aforementioned bailiffs of
that borough according to the custom abovesaid and that he have
their names and that precept, the tenor of which follows in these
words: James by the grace of God king of England, Scotland,
France, and Ireland, defender of the faith etc., to William
Jaye serjeant at mace and minister of the court there. We
order you that you make to come 12 prudent and lawful men
of your bailiwick that they be at the next court to be held at
the common hall before our bailiffs of the borough at
Huntingdon abovesaid, scilt., on December 22 next to come
by whom the truth of the matter can better be known and who
touch neither Thomas Papworthe plaintiff nor Thomas
Varnam defendant by any affinity to make a certain jury of
the countryside between the abovesaid parties concerning a
plea of trespass on the case, because both the same Thomas
Papworthe and the abovesaid Thomas Varnam between
whom thereof is [IMG 2746] a contention have put
themselves on that jury, and have there this writ and the
names of the jurors. Tested George Lambe and William
Witlesey our bailiffs of our borough of Huntingdon
December 9 in the 5th year of our reign of England, France,
and Ireland and the 41st of Scotland [December 9, 1607]. At which certain court the serjeant returned that the execution of
that writ appears in a certain panel annexed to this writ, viz., that
he summoned George Midlam, Lawrence Rigges, Oliver Hurland,
George Watson, Thomas Phillipps, Phillip Pilkington, John
Abbott, Richard Wemington, Richard Loddon, Richard Bolton,
John Laxton, John Peacocke, John Guide, Thomas Jaye, Charles
Rigg, James Bolton, Thomas Smythe, Robert Feilde, Edward
Thorpe, Edward Stockwell, Henry Handishe, William Watson,
Richard Daye, William Morris. And because the abovesaid jurors
made a default and did not appear at the same court abovesaid
Thomas Papworthe by his abovesaid attorney came and sought
process for having the bodies of all and singular the jurors before
named. Therefore according to the custom of that borough it is
ordered to the said serjeant at mace that he attach each of the
abovesaid jurors by pledge that they be at the next court held at the
common hall before our aforementioned bailiffs of the borough of
Huntingdon, scilt., January 7 [January 7, 1608]. At which certain court the serjeant returned that each of the jurors
were attached by pledge, and at the same court held, scilt., January
7 [January 7, 1608] before our aforementioned bailiffs of the
borough of Huntingdon at the common hall, 12 of the abovesaid
jurors, viz., George Midlam, George Watson, Thomas Phillipps,
Richard Wemington, John Laxton, John Peacocke, Thomas Jaye,
Thomas Smythe, Edward Thorpe, Edward Stockwell, William
Watson, Robert Feilde, appeared, who, sworn and impaneled, say
for the plaintiff and assess the damages at £7 2s and for the outlays
and costs at 2d. Therefore judgment is entered, but stay execution
until the next court to be held, viz., January 19 [January 19, 1608]
before our aforementioned bailiffs of our borough of Huntingdon. At which certain court came the abovesaid Thomas Papworthe by
his abovesaid attorney and sought execution against the abovesaid
Thomas Varnam of the abovesaid damages and costs according to
the form of the recovery abovesaid to be adjudicated to him.
Therefore it is considered by the court that the abovesaid Thomas
Papworthe have execution against the aforementioned Thomas
Varnam concerning the damages and costs abovesaid. Thereon the
abovesaid Thomas Papworthe by his abovesaid attorney seeks the
process of capias ad satisfaciendum against the aforementioned
Thomas Varnam to be directed to the serjeant at mace of the
abovesaid borough and minister of this court for the execution of
the abovesaid judgment. And it is granted to him, returnable at the
next court to be held before the aforementioned George Lambe and
William Witlesey bailiffs of the abovesaid borough of Huntingdon
at the common hall, scilt., February 19 next to come, in testimony
of which matter we the aforementioned George Lambe and
William Witlesey bailiffs of the abovesaid borough have affixed
our seals, given February 6 in the 5th year of the reign of our Lord
James by the grace of God king of England, France, and Ireland,
defender of the faith etc.,[IMG 2747] and the 41st of Scotland. Afterwards, scilt., on the Wednesday next after the quindene of Easter
then next following before the lord king at Westminster comes the
abovesaid Thomas Varnam by John Grene his attorney. And he says
that in the record and process abovesaid as well as in the rendering of the
abovesaid judgment it was manifestly erred, firstly, viz., in this that by the abovesaid record it appears that on
the levying of the complaint of the aforementioned Thomas
Papworth against the same Thomas Varnam in the plea of trespass
on the case and on the petition of the same Thomas Papworth of
process against the same Thomas Varnam thereon to be made by
consideration of the abovesaid court a precept of capias was first
adjudicated against the same Thomas Varnam, whereas by the law
of the land a precept of attachment (in the nature of a pone at
common law) in this case ought to have been adjudicated, and
thereon the serjeant at mace ought to have returned that the same
Thomas Varnam had nothing within the liberty of the abovesaid
town before any precept of capias was adjudicated against him.
Therefore for default of sufficient original process in this part it
was manifestly erred. It was erred also in this that in the abovesaid record (after the
adjudication of the abovesaid precept of capias) at each court
following (the abovesaid plea pending) it is not shown that the
same court was the court of the lord king as it ought to have been
shown, and therefore in this it was manifestly erred. Likewise it was erred in this, whereas by the abovesaid record it
appears that the abovesaid Thomas Papworth had a day for
narrating from the abovesaid court held on October 29 until the
next court, nevertheless in this that at the next court the same
Thomas Papworth did not narrate in any form of right nor
pretending to narrate did not show by that pretended narration in
certain at which time or place the abovesaid Thomas Varnam made
the instance and request to the aforementioned Thomas Papworth
that he sell and deliver to the aforementioned Ralph Clay named in
the abovesaid narration 7 tods of wool nor at which day or place
the same Thomas Papworth sold and delivered the same 7 tods of
wool to the aforementioned Ralph, nor narrated in certain any day
or place of his own request made to the aforementioned Thomas
Varnam for the payment abovesaid of £7 2s specified in the
pretended narration abovesaid above as by law he ought to show
and narrate, and therefore in this it was erred. Moreover, it was erred in this that neither the precept of venire
facias and the execution and return thereof nor the precept of
habeas corpus juratorum and the execution and return there is
sufficient in law, but completely void and erroneous, nor did the
jurors impaneled thereof ever give any verdict at all sufficient in
law to warrant the abovesaid judgment rendered in the abovesaid
form, and therefore that judgment thus rendered is void and
erroneous in law. And finally it was erred in this that in the rendering of the
abovesaid judgment it is not adjudicated whether the abovesaid
Thomas Varnam was in mercy or not as by the law of the land it
ought to have been adjudicated, and therefore in this it was
manifestly erred and the abovesaid judgment was wholly vicious
and void in law. And the same Thomas Varnam seeks the lord king’s writ to warn the
aforementioned Thomas Papworth to be before the lord king to hear the
record and process abovesaid. And it is granted to him.
1387,
1388,
2746,
2747
[See also case beginning 0051 (debt); ]