Totness attorneys: Robert Badger, John Williams, Richard Drewe

     King's Bench error plaintiff's attorney: Richard Best

The lady queen sent to the mayor and burgesses of the borough of Totness her writ close in these words:

Elizabeth by the grace of God queen of England, France, and Ireland, defender of the faith etc., to the mayor and burgesses of the borough of Totness, greetings. Because in the record and process and also in the rendering of the judgment of a plea that was before you in our court of the borough abovesaid without our writ according to the custom of the same borough between William Adams and Barnard Smyth concerning a debt of £40 that the same William exacted from the aforementioned Barnard as it is said manifest error intervened to the grave damage of the same Barnard 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 you should send distinctly and openly the record and process of the abovesaid plea with everything touching them to us under your seals, and this writ, so that we them on the Octaves of St. Michael wherever then we shall be in England so that, the abovesaid record and process 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 the realm of England should be done. Tested me myself at Westminster July 10 in the 13^th year of our reign. Lutley; Farren.

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

The Borough of Totness. The court of the borough there held before Leonard Yeo mayor of the abovesaid borough and before Richard Sanery, John Blackhall, William Bogans, and Richard Enery burgesses of the same borough on Monday, viz., May 28 in the 13^th year of the reign of our lady Elizabeth by the grace of God queen of England, France, and Ireland, defender of the faith etc.

Barnard Smythe of Great Totness in the county of Devon merchant was summoned to answer William Adams of Great Totness in the abovesaid county merchant concerning a plea that he render to him £40 of lawful English money that he owed him and unjustly detains etc. Pledges to prosecute: John Doo, Richard Roo.

And wherefore the same William Adams in his proper person says that, whereas the abovesaid Barnard Smyth on January 12 in the 5^th year of the reign of Elizabeth by the grace of God queen of England, France, and Ireland, defender of the faith etc., [January 12, 1563] at Totness within the jurisdiction of this court by his certain obligatory bill sealed by the seal of the same Barnard Smyth that the abovesaid William Adams proffers here in court, the date of which is the abovesaid day and year, acknowledged that he owed the aforementioned William Adams £40 of lawful English money to be paid to the same William Adams, his executors, administrators, or assigns on March 1 then next following [March 1, 1563], nevertheless Barnard Smyth although often asked has not yet rendered the abovesaid £40 to the aforementioned William Adams but has wholly refused to this time to render them to him and still refuses, wherefore he says that he is worse off and has damages to the value of £5. And thereof he produces his suit etc.

And thereon comes the abovesaid defendant by Richard Drewe his attorney and defends force and injury, damages when etc. And he seeks oyer of the abovesaid obligatory bill and it is read to him in these words [in English:]

Thys byll made the xij [IMG 0648] day of January in the fyfte yere of the reigne of Elizabeth by the grace of god quene of Englond Fraunce & Irelande defender of the fayth wytnesseth that I Barnard Smythe of Great Totnes in the county of Devon merchaunt doo awe unto William Adams of Greate Totnes merchaunt in the said countye the fulle somme of £40 of lawfulle monye of Englonde to be payd unto the saide William Adams hys executors assignes or administrators the fyrste day of Marche nexte ensuyng the date hereof, I saye for the which payment of £40 of lawful mony of Englond welle & truly to be payd at the daye aforesaide I the saide Barnarde Smythe doo bynd me my heires executores assignes & administrators by these presentes, in wytnes hereof I the said Barnard Smythe have caused this bylle to be made signed & seled with myne owne hande yeoven the day & yere above written.

The which having been read and heard, the same defendant seeks a day to emparl here at the next court to be held on Monday, viz., June 11 next to come, and he has it etc. Therefore day is given to the aforementioned plaintiff here etc.

William Adams puts in his place John Williams against Barnard Smyth concerning a plea of debt.

Barnard Smyth puts in his place Richard Drewe against the aforementioned William Adams concerning the abovesaid plea.

At which day here comes the abovesaid Barnard Smyth by Richard Drewe his attorney and says that the abovesaid William Adams ought not to have or maintain his abovesaid action against him, because he says that the abovesaid narration of the plaintiff as well as the material contained in the same are less sufficient in law and to which the same defendant is not bound nor has need by the law of the land to answer, wherefore for default of a sufficient narration, the same defendant seeks judgment that the abovesaid narration be quashed.

The excepcion of Barnard Smyth defendant agaynst Adams in a ple of dett. [IMG 1717]

The cause of the demurrer ys for the declaracion beinge upon a byll obligatory doth not make any inducion of the forme of a bylle obligatorye wheras the declaracion shulde have bynne accordinge to the wordes of the bylle, videlicet, “pro solutione cuius idem defendens obligavit se heredes executores et administratores suos”; for these causes & other the declaracion ys insufficient.

And the abovesaid William Adams by his abovesaid attorney comes and says that since he declared sufficient matter in his narration, which certain matter the same defendant does not deny nor does he answer to it in any way, he seeks judgment concerning the abovesaid debt together with his damages sustained in this part to be adjudicated to him. And because the mayor and burgesses abovesaid here want to advise themselves before they proceed to judgment thereof. And thereon day is given to the parties abovesaid here to the next court to be held on Monday, viz., June 18 next to come before the aforementioned mayor and burgesses here.

At which certain court here came the abovesaid parties by their abovesaid attorneys etc. And the abovesaid Barnard Smyth by Richard Drewe his abovesaid attorney proffered the lady queen’s writ of certiorari as follows in these words:

Elizabeth by the grace of God king of England, France, and Ireland, defender of the faith etc., to the mayor and burgesses of the borough of the Totness, greetings. Wanting for certain causes to be certified on the tenors of records and processes of all and singular the pleas, complaints, or actions that are before you in the your court of the abovesaid borough without our writ according to the custom of the same borough against Barnard Smythe at whosoever suit from whatsoever cause or whatsoever causes made, had, moved, or pending, we order you that distinctly and openly you send to us in our chancery the abovesaid tenors abovesaid with everything touching them by whatsoever name the same Barnard in those pleas, complaints, or actions is known at the third week after Trinity wherever it will be under the seal of you or one of you, and this writ. Tested me myself at Westminster May 23 in the 13^th year of our reign.

By virtue of which we the abovesaid mayor and burgesses send the records and processes of all and singular pleas, complaints, or actions specified in the said writ with everything touching them to the lady queen at the day contained in the said writ wherever then it will be in England under our seals.

Thereon the pleas, suits, and processes abovesaid are placed in respite until etc.

The Borough of Totness. [IMG 1718]The court of the borough held there before Leonard Yeo mayor of the abovesaid borough on Monday, viz., July 2 in the 13^th year of the reign of our lady Elizabeth by the grace of God queen of England, France, and Ireland, defender of the faith etc.

At this court comes William Adams by John Williams his attorney and proffers the lady queen’s writ de procedendo as follows in these words:

Elizabeth by the grace of God queen of England, France, and Ireland, defender of the faith etc., to the mayor and burgesses of the borough of Totness, greetings. Although lately wanting for certain causes to be certified on the tenors of records and processes of all and singular the pleas, complaints or actions that were before you in our court of the abovesaid borough without our writ according to the custom of the same court against Barnard Smythe at whosoever’s suits made, had, moved, or pending as in our said writ is more fully contained, we order you that in those pleas, complaints, or actions you proceed with that swiftness with which it should be done from right and according to the law of the abovesaid borough, our said writ before directed to you thereof notwithstanding. Tested me at Westminster June 26 in the 13^th year of our reign.

And thereon the abovesaid William Adams by his abovesaid attorney seeks judgment to be rendered of and on the premisses for him. Thereon the plea and process abovesaid having been seen and by the abovesaid mayor and burgesses here understood, it is considered that the narration and plea of the abovesaid William Adams and the matter contained in the same are sufficient in law, which certain matter the abovesaid Barnard does not deny nor answer in any way. Therefore it is considered by the abovesaid mayor and burgesses that the abovesaid William Adams recover against the aforementioned Barnard Smyth his abovesaid debt and his damages and costs by occasion of the detention of that debt at £4 15s 2d taxed and adjudicated to the same William Adams by his assent by the abovesaid mayor and burgesses here, and let him be taken etc.

Afterwards, scilt., on Monday next after Michaelmas month in this same term before the lady queen at Westminster comes the abovesaid Barnard by Richard Best his attorney. And immediately he says that in the record and process abovesaid and also in the rendering of the abovesaid judgment manifestly it is erred,

In the first place, viz., in this that it does not appear by the abovesaid record by what right or by what authority the abovesaid court of the abovesaid borough was held before the aforementioned mayor and burgesses or by what warrant the same mayor and burgesses held the abovesaid plea, whether by royal letters patent or by pretext of some custom or legitimate prescription.

Likewise it is erred in this that it does not appear by the abovesaid record that any process was adjudicated or returned against the aforementioned Barnard at his appearance (?) made in the abovesaid court of the abovesaid borough.

Likewise it is erred in this that the abovesaid William Adams in his abovesaid plea narrated against the same Barnard before the same Barnard appeared in his proper person or by some attorney.

[The following two assigned errors are not completely recoverable from the digitized image, but they seem to concern the lack of specification of the presiding officers of the court at which the defendant was granted leave to emparl and the improper award of capias procedure.]