Stephen Whyttington v. Thomas Simpson
Lincoln attorneys: Edmund Shuttleworth, Richard Smythe [for other Lincoln attorneys, Stephen Mason, Henry Bayes: see] Error in king's bench (Trinity term, 1607) on an action in the court of Lincoln, Lincolnshire
AALT images for Whyttington v. Simpson 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 5th year of our reign of England, France, and Ireland and of
Scotland the 40th [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 4th year of the reign of the lord James now
king of England etc., and of Scotland the 40th [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 4th and 40th 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 4th 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 4th and 40th 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 4th 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 4th 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 4th and 40th 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 4th and 40th 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.]
2531,
2532,
3904