Error in king's bench (Trinity term, 1536) on an action in the court of Leominster, Herefordshire

AALT images for Cox v. Russell
0137, 0138

This action of error on a case in court of Leominster elicited the record of two cases between the same parties, both actions of debt that resulted in wager of law. The record is very spare and seems to have been derived from court records that were themselves only notes. The errors alleged do not touch the spare nature of the record, except that the record did not retail the authority of the court or the names of the judges.

The lord king sent to the seneschal and bailiffs of the abbot of Reading’s liberty of Leominster 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 seneschal and bailiffs of the liberty of the abbot of Reading of Leominster, greetings. Because in the record and process and also in the rendering of judgment of a plea that was in the abovesaid abbot of Reading’s court of Leominster before you without our writ according to the custom of the same city between John Cox and Henry Russell concerning certain trespasses inflicted on the same John by the aforementioned Henry as it is said manifest error intervened to the grave damage of the same Henry 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 distinctly and openly send the record and process abovesaid with everything touching them to us under your seals and this writ so that we have them at 15 days after Easter wherever we then are in England so that, the abovesaid record and process having been inspected we may make to be done further thereof what of right and according to the law and custom of our realm of England should be done. Tested me myself at Westminster February 10 in the 27^th year of our reign [February 10, 1536].

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

The Borough of Leominster. At the court held there on September 6 in the 26^th year of the reign of King Henry VIII [September 6, 1534] among other things it is contained thus:

John Cox complains against Henry Russell in a plea of trespass to the damage of 6s8d, and the said plaintiff by Richard Hall his attorney declared against the defendant how and when etc., and at the next court following the aforementioned defendant came in his proper person and defends force and injury etc. And he says that he did him no trespass. And thereon he put himself on the judgment of the court. And thus he was exacted at the next court then following with 2 hands to wage law. At which day the abovesaid defendant defaulted of his law. Therefore he was condemned in the sum abovesaid together with 11d for damages, outlays and expenses adjudicated to the aforementioned plaintiff, which it is ordered to the bailiffs to levy from the goods and chattels of the same defendant to the work and use of the aforementioned plaintiff before the court next following etc., according to the custom of the court abovesaid. And then the abovesaid defendant proffered the lord king’s writ of error as here afterwards it more fully appears.

John Cockes complains against Henry Russell in a plea of trespass to the damages of 15s. And the said plaintiff by Richard Hall his attorney declared against the defendant how and when etc., and at the next court then following the aforementioned defendant came in proper person and defends force and injury etc., and he says that he did him no trespass. And thereon he puts himself on the judgment of the court. And thus he was exacted at the court then next following with 2 hands to wage law. At which day the abovesaid defendant defaulted of his law. Therefore he was condemned in the sum abovesaid together with 20d for damages, outlays, and expenses adjudicated to the aforementioned plaintiff, which it is ordered to the bailiff to levy from the goods and chattels of the same defendant to the work and use [IMG 0138] of the aforementioned plaintiff before the court then next following etc., according to the custom of the court abovesaid. And then the abovesaid defendant proffered the lord king’s writ of error, viz., at the court held there on May 8 in the 28^th year of the reign of the king abovesaid [May 8, 1536] as it appears in the said writ annexed to this and included on May 10 in the abovesaid year.

Afterwards, scilt., on July 11 this same term before the lord king at Westminster comes the abovesaid Henry Russell by Richard Heywood his attorney. And he says that in the record and process and also in the rendering of the abovesaid judgment it is manifestly erred, viz., for this that in the abovesaid record no mention is made nor in any other way is it specified by what authority the court was held in the abovesaid borough, viz., whether that court there was accustomed to be held by prescription or by charter of the now lord king or of other his progenitors kings of England, nor in the record abovesaid does it appear before which judge the abovesaid court was held as above it appears of record. And the same Henry Russell seeks the lord king’s writ to warn the abovesaid John Cox that he be before the lord king on the morrow of All Souls wherever etc., to hear the record and process abovesaid if etc., and further etc. The same day is given to the aforementioned Henry Russell etc.

         At which day before the lord king at Westminster comes the abovesaid Henry Russell by his attorney abovesaid, and the sheriff returns that by virtue of the writ of the lord king directed to him thereof to make to be known to the aforementioned John Cockes to be before the lord king at the day and place contained in that writ by John Hart and Richard Smart prudent etc. Which certain John Cockes although thus warned and on the 4^th day of the plea solemnly exacted did not come, thereon the abovesaid Henry Russell says that in the record and process abovesaid and also in the rendering of the abovesaid judgment manifestly it was erred by alleging the abovesaid error by him above alleged in the abovesaid form. And he seeks that the abovesaid judgment on account of that error and others being in the abovesaid record and process be revoked, annulled, and completely had for nothing, and that the court of the lord king here proceed to the examination both of the record and process abovesaid and of the errors abovesaid etc. Thereon both the record and process and the error abovesaid above assigned having been seen and by the court of the lord king fully understood, it is considered that the abovesaid judgment on account of that error and others found in the record and process abovesaid be revoked, annulled, and completely had for nothing, and that the abovesaid Henry Russell be restored to everything that he lost by occasion of the abovesaid judgment.