Stephen Whyttington v. Thomas Simpson

     Lincoln attorneys: Edmund Shuttleworth, Richard Smythe

     [for other Lincoln attorneys, Stephen Mason, Henry Bayes: see]

AALT images for Whyttington v. Simpson
2531, 2532, 3904

This action of error on a case in the city court of Lincoln only retails the city court record; there is no subsequent process thereon by the king’s court recorded in this enrollment. The case is still of considerable interest, even without any assignment of errors. The court of Lincoln asserted a custom whereby the capias issued as the first process without any attachment, an abbreviated but, in the context of time, a more realistic pattern for civil procedure. The case of defamation elicited a defense that the words spoken had been a response to perjured sworn evidence given by the plaintiff in defamation in the proceedings of a different course in the court of Lincoln between other people about the taking of a colt. The jury vindicated the defamation defendant.

The lord king sent to the sheriffs of his city of Lincoln 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 sheriffs of his city of Lincoln, 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 Stephen Whyttington and Thomas Simpson concerning a certain trespass on the case inflicted on the same Stephen by the aforementioned Thomas as it is said manifest error intervened to the grave damage of the same Stephen as we have received from his complaint, we, wanting the error if there was any to be corrected in due manner and full and speedy justice to be done to the abovesaid parties in this part, we order that, if judgment has been rendered thereof, then you send the record and process of the abovesaid plea with all things touching them to us under your seals distinctly and openly and this writ, such that we have them on the Octaves of Holy Trinity wherever then we shall be in England so that, the abovesaid record and process having been inspected, we may make to be done further 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 May 2 in the 5^th year of our reign of England, France, and Ireland and of Scotland the 40^th [May 2, 1607].

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

The City of Lincoln. The foreign court of the now lord king held at the guildhall of the abovesaid city in the county of the same city on December 31 in the 4^th year of the reign of the lord James now king of England etc., and of Scotland the 40^th [December 31, 1605] before Robert Hartley and Thomas Sawer sheriffs of the abovesaid county according to the custom of that city used and approved in the same from time whereof memory does not run.

The City of Lincoln. At this court comes Stephen Whyttington in his proper person and complains against Thomas Sympson concerning a plea of trespass on the case and found pledges to prosecute that complaint, scilt., John Ro and Richard Do, and he seeks process to be made thereof for him against the aforementioned Thomas according to the custom of the abovesaid city; therefore according to the custom of the abovesaid city used and approved in the same from time whereof memory does not run which is thus and for the whole time whereof the memory of men does not run to the contrary was that immediately after whatsoever complaint in a plea of trespass on the case levied or affirmed by any person in the court of the abovesaid lord king within the abovesaid city a precept for taking was immediately adjudicated and has been accustomed to be adjudicated by the court at the petition of the same plaintiff against the defendant in this manner complaint without any attachment first adjudicated, it is ordered to Emory Waterhowse one of the serjeants at mace within the same city and minister of this court that he take the aforementioned Thomas if etc., and him safely etc., such that he have his body before the aforementioned sheriff at the next foreign court of the said lord king at the guildhall of the abovesaid city to be held on January 8 next to come [January 8, 1607] to answer the aforementioned Stephen concerning the abovesaid plea. The same day is given to the aforementioned Stephen here etc. And thereon the same Stephen puts in his place Edmund Shuttleworth against the aforementioned Thomas concerning the abovesaid plea etc.

At which certain next foreign court of the said lord king held here, scilt., at the guildhall of the abovesaid city on the abovesaid January 8 in the abovesaid 4^th and 40^th year [January 8, 1607] before the aforementioned Robert Hartley and Thomas Sawer sheriffs of the abovesaid city according to the custom of that city used and approved in the same from time whereof memory does not run come both the abovesaid Stephen by the aforementioned Edmund Shuttleworth his attorney and the abovesaid Thomas Simpson by Richard Smythe his attorney. And the aforementioned Emory Waterhowse serjeant at mace and minister of this court now sends that he by virtue of the abovesaid precept directed to him took the body of the abovesaid Thomas and has it ready now here as it was ordered to him.

And thereon the abovesaid Stephen by narrating against the abovesaid Thomas on his abovesaid complaint by the abovesaid Edmund Shuttleworth his attorney complains that, whereas the same Stephen is a good, true, and faithful liege of the now lord king and has been of good name, fame, conversation and condition and thus both among his neighbors and external persons has been had, called, and reputed, and the same Stephen has lived, remained, and continued always up to this time intact, immaculate, and unsuspected without notoriety of any kind of theft, falsity, perjury or any kind of crime, by pretext of which the same Stephen was clearly and well accepted and reputable not only to his neighbors but to all other subjects of the now lord king with whom he had commerce and he gained many sums of money from this manner commerce, nevertheless the abovesaid Thomas, not ignorant of the premisses but scheming from his most wicked malice and intending maliciously to oppress the same Stephen and to injure, take away and demean his good name and fame, openly and publicly said, asserted, and in a loud voice propounded certain false and scandalous words concerning the aforementioned Stephen on the last day of December in the 4^th year of the reign of the now lord king at the city of Lincoln in the northern ward there and within the jurisdiction of this court in the presence and hearing of very many of the lieges of the said now lord king in these English words following, viz., “Thowe [meaning the said plaintiff] art a periured and forsworne fellowe and I [meaning the said defendant] wille prove it.” By pretext of the saying, propounding, and publication of which certain false and scandalous words the same Stephen not only was gravely injured in his good name and fame but also stands worse off in many ways in his divers lawful negotiations and honest doings, to the damage of the same Stephen of 100 marks, and thereof he produces suit etc.

And the abovesaid Thomas by the aforementioned Richard Smythe his attorney defends force and injury when etc. And he seeks license to emparl here until the next foreign court of the said lord king to be held here, scilt., at the guildhall of the city abovesaid on Monday January 12 next to come [January 12, 1607] before the aforementioned sheriffs, and he has it etc. The same day is given to the aforementioned Stephen here etc. And thereon the same Thomas puts in his place the aforementioned Richard Smythe against the aforementioned Stephen concerning the abovesaid plea.

At which certain next foreign court of the said lord king held here, scilt., at the guildhall of the abovesaid city on the abovesaid January 12 in the 4^th and 40^th year abovesaid [January 12, 1607] before the aforementioned Robert Hartley and Thomas Sawer sheriffs of the abovesaid city according to the custom abovesaid come both the abovesaid Stephen Whittington and the abovesaid Thomas Simpson by their abovesaid attorneys.

And thereon the same Stephen seeks that the abovesaid Thomas respond to him to his abovesaid narration etc.

And the abovesaid Thomas as before defends force and injury when etc. And he says that the abovesaid Stephen ought not to have his abovesaid action against him, because he says that [IMG 2532] the same Stephen long before the last day of December in the 4^th year of the reign of the now lord king had healed for a certain John Pigeon gentleman a certain colt of the same John of a certain ulcer on or over the hoof of the same colt, and the same John afterwards and before the abovesaid last day of December claimed for the same colt thus healed a certain colt in the possession of William Simpson father of the abovesaid Thomas and for this that the same William declined to deliver that colt to the same John claiming that colt to be the colt of the same William the father, the same John prosecuted against the same William a certain suit in the foreign court of the lord king here, scilt., at the guildhall abovesaid of the city of Lincoln in a plea of trespass before Robert Hartley and Thomas Sawer sheriffs of that city according to the custom of that city from time whereof memory of men runs not to the contrary for the taking and abduction of that colt lately in the possession of the same William; the same Stephen on the abovesaid last day of December in the abovesaid 4^th year of the reign of the now lord king at the guildhall abovesaid in the county of the same city then and there falsely gave in evidence on his oath to the certain jurors empaneled before the aforementioned sheriffs then and there appearing and burdened and sworn to tell the truth on the issue joined in the abovesaid suit concerning the illegitimate taking and abduction of the abovesaid colt that the colt then in controversy between the abovesaid parties was the colt that he before had healed for the abovesaid John, whereas indeed the same Stephen never healed that colt, whereby afterwards, scilt., on the same last day of December the same Thomas said concerning the aforementioned Stephen the abovesaid English words, viz, “Thou art a periured & forsworne fellowe & I will prove it,” as well he might. And this he is ready to verify, wherefore he seeks judgment if the abovesaid Stephen ought to have or maintain his abovesaid action against him

And thereon the abovesaid Stephen by the aforementioned Edmund Shuttleworth his attorney seeks thereof a further day to replicate to the abovesaid plea here until the next foreign court of the said lord king to be held here, scilt., at the guildhall of the abovesaid city on Monday January 19 next to come [January 19, 1607] before the aforementioned sheriffs. And he has it. The same day is given to the aforementioned Thomas here etc.

At which certain next foreign court of the said lord king held here, scilt., at the guildhall of the abovesaid city on the abovesaid January 19 in the abovesaid 4^th and 40^th year before the aforementioned Robert Hartley and Thomas Sawer sheriffs of the abovesaid city according to the custom abovesaid come both the abovesaid Stephen and the abovesaid Thomas Simpson by their abovesaid attorneys, and the abovesaid Stephen by replication to the abovesaid plea of the abovesaid Thomas says that he by anything alleged before ought not to be precluded from having his abovesaid action, because he says that the abovesaid Thomas on the same day and year in the abovesaid narration above specified at the abovesaid city of Lincoln in the abovesaid ward and within the jurisdiction of this court of his own injury and without any such cause above alleged before by him said, asserted, and propounded in a loud voice concerning the aforementioned Stephen the abovesaid English words specified above in his abovesaid narration, viz., “Thou [meaning the said plaintiff] art a periured & forsworne fellowe & I [meaning the said defendant] will prove it,” as he by his abovesaid narration above supposed. [IMG 3904] And he seeks that this be inquired by the countryside. And the abovesaid Thomas similarly.

Therefore it is ordered to the aforementioned Emory Waterhowse serjeant at mace and minister of the abovesaid court that he should make to come before the aforementioned sheriffs at the next foreign court of the said lord king to be held here, scilt., at the guildhall of the abovesaid city on Thursday March 12 in the abovesaid 4^th and 40^th year next to come [March 12, 1607] 12 etc. from the vicinity of the abovesaid ward by whom etc., and who neither etc., to recognize etc., because both etc. The same day is given to the abovesaid parties here etc.

At which certain next foreign court of the said lord king held here, scilt., at the guildhall of the abovesaid city on the abovesaid March 12 [March 12, 1607], before the aforementioned Robert Hartley and Thomas Sawer sheriffs of the abovesaid city according to the custom of the abovesaid city come both the abovesaid Stephen and the aforementioned Thomas by their abovesaid attorneys. And the abovesaid Emory Waterhowse serjeant at mace and minister of the abovesaid court now here sends the precept directed to him of venire facias hic 12, etc., to try the abovesaid issue together with the panel concerning the names of the jurors annexed to the same precept served and executed in all things, of whom 12, viz., Thomas Dawson, Tristram Estborne, Roger Jaques, Thomas Colson, George Browne, Thomas Howton, William Woodhowse, James Diurance, John Smythe, John Birkes, Richard Hare, and Henry Porter exacted, came, who chosen, tried, and sworn to tell the truth concerning the premisses say on their oath that the abovesaid Thomas said, propounded, and published the English words abovewritten specified in the above narration concerning the aforementioned Stephen from the cause abovewritten alleged by the same Thomas abovesaid as well he might in the manner and form as the abovesaid Thomas above by pleading alleged. And because the sheriffs wanted to advise himself of and on the premisses before they render judgment thereof, day is given to the abovesaid parties here until the next foreign court of the said lord king to be held here, scilt., at the guildhall of the abovesaid city until Monday May 11 next to come [May 11, 1607] before the aforementioned sheriffs to hear their judgment, because the same sheriffs thereof not yet etc.

At which certain next foreign court of the said lord king held here, scilt., at the guildhall of the abovesaid city on the abovesaid May 11 before the aforementioned Robert Hartley and Thomas Sawer sheriffs of the abovesaid city according to the abovesaid custom of the abovesaid city come both the abovesaid Stephen Whittington and the aforementioned Thomas Simpson by their attorneys abovesaid. And thereon, the premisses having been seen and fully understood by the abovesaid sheriffs, it is considered by the same sheriffs that the abovesaid Stephen Whittington take nothing by his complaint abovesaid but be in mercy for his false claim, and that the abovesaid Thomas go thereof without day etc. And further it is granted that the abovesaid Thomas recover against the aforementioned Stephen his damages at 32s 2d adjudicated to the same Thomas at his request for his outlays and costs put out by him in this part etc.

[No process is recorded after the retailing of the record.]