Nicholas James v. Thomas Byston gentleman
Tregoney attorney: Ezechiel Grosse
for another case of error, in debt, see
Error in king's bench (Michaelmas term, 1607) on an action in the court of Tregoney Pomery, Cornwall
AALT images for James v. Byston This action of error on a suit of trespass on the case (defamation) in
the court Tregoney Pomery is one of the more obvious examples of
paper pleading, here done largely in English. Tregoney also used a
six-person jury. The lord king sent to the seneschal and bailiffs of the court of Hugh
Pomery armiger of his manor of Tregoney Pomery 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 seneschal and bailiffs of
the court of Hugh Pomery armiger of his manor of Tregoney
Pomery, greetings. Because in the record and process and also in
the rendering of the judgment of a plea that was before you in the
court of the abovesaid manor without our writ according to the
custom of the same court between Nicholas James and Thomas
Byston gentleman of a certain trespass on the case inflicted on the
same Nicholas by the aforementioned Thomas as it is said manifest
error intervened to the grave damage of the same Thomas 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 abovesaid together
with everything touching them to us under your seals, and this writ,
so that we have them at Michaelmas month wherever we shall then
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 our realm of England should be done. Tested me myself
at Westminster June 17 in the 5th year of our reign of England,
France, and Ireland and the 40th of Scotland. [June 17, 1607]Fitz The record and process of which mention is made in the abovesaid writ
follow in these words: The Manor of Tregoney Pomery. At the court of the manor
abovesaid held there before Gilbert Michell armiger chief
seneschal of the abovesaid manor and John Mathewe bailiff of the
same court on October 14 in the 4th year of the reign of our Lord
James by the grace of God king of England, France, and Ireland,
defender of the faith etc., and the 40th of Scotland [October 14,
1606] comes Nicholas James and levied a certain complaint of
trespass on his case against Thomas Byston gentleman as follows,
scilt., Nicholas James complains against Thomas Byston gentleman
in a plea of trespass on his case. And thereon the abovesaid
Nicholas finds pledges to prosecute: John Doe and Richard
Roe. Thereon according to the custom of the said manor
used from time whereof the memory of men runs not to the
contrary it is ordered to the bailiff abovesaid that he have the
body of the abovesaid Thomas here in the next court, scilt.,
November 4 then next following [November 4, 1606] to
answer the abovesaid Nicholas James concerning his
abovesaid plea. On which day, scilt., at the court held there November 4 in the
abovesaid year [November 4, 1606] before the abovesaid seneschal
and bailiff the said bailiff returned his abovesaid precept that he
has the body of the abovesaid Thomas ready in court as it was
ordered to him. And thereon the abovesaid Nicholas, exacted,
appeared in his proper person, and, scilt., the abovesaid Thomas,
exacted, appeared. And thereon the said Nicholas narrated against
the abovesaid Thomas as follows, scilt., Nicholas James complains against Thomas Bysten gentleman
in a plea of trespass on his case. Pledges to prosecute; John
Doe and Richard Roe. [in English:] Whaereas the saide playntiffe is and hathe
bynne a true and lawfull lege man and as a true and lawfull
subiecte aswell of ouor soveraygne lorde the kinges maiesty
that nowe is as of our late soveraigne Queene Elizabethe
from the tyme of his birthe hetherunto hathe alwayes behaved
hym selfe and so hathe byn alwayes reputed and taken
amongste alle his maiesties subiectes without any suspicion
of false forswearynge ande takeinge of any false oathe the
saide defendaunt not ignorante of the premises but havinge a
malicious meanynge againste the saide playntiffe and
intendinge the ruyne decay and overthrowe of hym the saide
playntiffe and to bringe hym into ynfamy and slaunder
amongstes his neightebours [and then continuing in Latin:]
here at Tregony within the jurisdiction of this court on
August 6 in the 4th year of the reign of our Lord James by the
grace of God king of England, France, and Ireland, defender
of the faith etc., and the 40th of Scotland [and then continuing
in English:] did speake and utter those false and slaunderous
wordes of the said playntiffe in the hyringe and presence of
many of the kynges maiesties subiectes, videlicet he
meanynge the saide playntiffe hathe taken a false othe
againste me in Tregony Pomery courte for this matter that
Popham hathe this execucion againste me by reason of the
speakeinge of whiche false and slaunderous wordes the saide
playntiffe saithe that he is dampnyfied and damages hathe
susteyned to the valewe of twoe hundred markes and there
uppon bringethe his suyte. [IMG 0397] And at the same court comes the abovesaid Thomas Byston in his
proper person and defends force and injury etc. And he seeks a
copy of the narration and a day to emparl in the next court, and it is
granted to him etc. The same day is given to the abovesaid
plaintiff here to be etc., scilt., November 25 in the abovesaid years.
And thereon the abovesaid Thomas is handed over in bail by
pledge of John Brente. At which day, scilt., at the court held there before the abovesaid
seneschal and bailiff abovesaid November 25 in the abovesaid
years [November 25, 1606] comes the abovesaid Thomas Byston
by Ezechiel Grosse [and then in English:] his attorney and
defendethe the wronges & iniuries where & when etc., and by
protestacion sayethe that aswell the declaracion of the saide
playntiffe as the matters therin conteyned are altogether
insufficient in lawe for many apparante faultes and ymperfectiones
extante in the same the advantage & benefitt thereof alwayes
hereafter unto the saide defendaunte saved by protestacion alsoe
the saide defendaunte sayethe that the forsaide playntiffe is not of
good name and fame foras he in his declaracion hathe untruely
alleaged for plea nevertheless the saide defendaunte saythe that
true it is he the saide defendant did speake of the saide playntiffe
that he had taken a false othe in Tregony Pomery courte befor this
tyme againste Mathewe Joseppe and Thomas Gamidge and that
iustly for that he the saide playntiffe did depose before this tyme in
this courte betwene the saide Mathewe Joseppe and one John
Popham in an action of trespass uppon his case most falsely and
untruely in his saide evidence and alsoe lykewyse before this tyme
the saide playntiffe did in this courte in a matter here dependinge
betwene James playntiffe and the saide Thomas Gamidge
defendaunte in an action of dett depose and give evidence in the
same action most falsely and untruly without that that the saide
defendaunte did speake of the saide playntiffe he meanynge the
saide playntiffe hath taken a false oathe againste me in Tregony
Pomery courte for this matter that Popham hathe this execucion
againste me in such manner & forme as he the saide playntiffe in
his declaracion aforesaide againste hym the saide defendaunte
hathe alleadged and of this puttethe hym selfe uppon the triall of
the country etc. [and then in Latin:] And the abovesaid plaintiff
similarly etc. Thereon it was ordered to the abovesaid bailiffs
according to the custom of the abovesaid manor used from time
whereof the memory of men runs not to the contrary that they
return here in the next court, scilt., December 16 in the abovesaid
year [December 16, 1606] before the aforementioned seneschal
etc., 12 prudent and lawful men of the vicinity etc., by whom etc.,
and who neither etc., to recognize etc., because both etc. At which certain day, scilt., December 16 in the abovesaid year
[December 16, 1606] the abovesaid bailiff returns his precept and
the names of the jurors between the abovesaid parties as etc.: Hugh
Mundy, Richard Cock, Richard Jagowe, John Bartlett, Hugh
Collyns, Nicholas Hancoke, John Newman, William Bowrynge,
John Flamacke, Henry Wolcocke, Lawrence [IMG 1320] Lucas,
and German Rouse who were exacted and did not appear but made
a default. Therefore it was ordered to the abovesaid bailiffs that
they distrain the abovesaid jurors so that they be here at the next
court, scilt., January 6 then next following [January 6, 1607] before
the aforementioned seneschal etc. At which day, scilt., January 6 then next following [January 6,
1607] before the aforementioned seneschal etc., came the
abovesaid bailiff and returned his abovesaid precept directed to
him in the abovesaid form. And thereon came both the abovesaid
Nicholas in his proper person and the abovesaid Thomas by his
abovesaid attorney. And thereon the jurors abovesaid exacted,
Richard Cock, Lawrence Lukas, Hugh Berryman, John Truscott,
Henry Tyller, and John Bennett appeared. And according to the
custom of the manor abovesaid used from time whereof the
memory of men runs not to the contrary the abovesaid jurors
impaneled came, chosen, tried, and sworn to tell the truth
concerning the withincontained, say on their oath that the
abovesaid defendant is guilty of the speaking of the abovesaid
words in the manner and form as is specified in the narration of the
abovesaid plaintiff, and they gave damages by occasion of the
speaking of the abovesaid words at £8, and for expenses at 2s. And thereon at the court held there January 27 in the abovesaid
years [January 27, 1607] before the aforementioned seneschal and
bailiff both the abovesaid Nicholas and the abovesaid Thomas in
their proper persons came and by the assent of the same the
abovesaid matter is continued until February 17 in the abovesaid
years. At which day at the court held there before the aforementioned
seneschal and bailiff judgment was granted that the abovesaid
Nicholas recover against the abovesaid Thomas Byston his
damages abovesaid assessed by the abovesaid jurors in the
abovesaid form as well as 57s4d adjudicated for the same Nicholas
James at his request for his outlays and costs by the court here by
way of increment etc. Afterwards, scilt., Thursday next after the Octaves of St. Martin this
same term before the lord king at Westminster comes the abovesaid
Thomas Byston in his proper person and immediately he says that in the
record and process abovesaid as well as in the rendering of the
abovesaid judgment manifestly it was erred in this, viz., that the abovesaid judgment was rendered for the abovesaid
Nicholas James against the same Thomas Biston, whereas by the
law of the land of this realm of England the abovesaid judgment
ought to have been rendered that the abovesaid Nicholas James
take nothing by his complaint abovesaid but be thereof in mercy
for his false claim etc., because the narration abovesaid and the
matter contained in the same is less sufficient in law. Therefore in
this it was manifestly erred. Likewise, it was erred in this that, whereas by the abovesaid record
it appears that it was ordered to the bailiff abovesaid according to
the custom of the manor abovesaid that he return in the next court
there, scilt., December 16 in the abovesaid year before the
aforementioned seneschal etc., 12 prudent and lawful men etc., of
the vicinity etc., and for this that it does not appear from which
place or vicinity the writ of venire facias abovesaid was founded,
and for this that he returned 12 prudent and lawful men and not
free and lawful men as by the form of the statute he ought to have
returned, therefore for the same causes manifestly it was erred. Moreover, it was erred in this that by the abovesaid record it
appears that the abovesaid Nicholas recover against the
aforementioned Thomas his abovesaid damages assessed by the
abovesaid jurors in the abovesaid form as well as 57s4d
adjudicated for the same Nicholas James at his request for his
outlays and costs by the court there by way of increment, and it
does not appear at which sum the abovesaid damages amount to in
all, nor by the record does it appear that the abovesaid Thomas be
thereof in mercy as it ought, therefore the abovesaid judgment is
void in law and for the same causes it was manifestly erred. [IMG
1321] And finally it was erred in this that the abovesaid issue was tried
between the abovesaid parties by 6 jurors only and not more,
therefore in this it was manifestly erred. And he seeks a writ of the said lord king to warn the abovesaid Nicholas
to be before the lord king to hear the abovesaid record and process, and
it is granted to him etc., whereby it is ordered to the sheriff of Cornwall
that by prudent etc., he should make known to the aforementioned
Nicholas that he be before the lord king on the octaves of St. Hilary
wherever etc., to hear the record and process abovesaid if etc., and
further etc. The same day is given to the aforementioned Thomas etc. At which day before the said lord king at Westminster comes the
abovesaid Thomas in his proper person. And the sheriff, viz., John
Arundell of Trerise armiger returned that the abovesaid Nicholas James
has nothing in his bailiwick whereby he could make known to him nor
was he found in the same. And the abovesaid Nicholas did not come.
Thereon it is ordered to the sheriff as formerly that by prudent etc., he
make known to the aforementioned Nicholas that he be before the said
lord king on the Octaves of the Purification of Blessed Mary wherever
etc., to hear the record and process abovesaid if etc., and further etc. The
same day is given to the aforementioned Thomas etc. At which day before the said lord king at Westminster abovesaid comes
the abovesaid Thomas in his proper person. And the sheriff, viz., John
Arundell armiger returns that the abovesaid Nicholas James has nothing
in his bailiwick whereby he could make known to him, nor was he found
in the same. And the abovesaid Nicholas James although solemnly
exacted did not come but made a default. Thereon the abovesaid
Thomas as before says that in the record and process abovesaid as well
as in the rendering of the abovesaid judgment it was manifestly erred by
alleging the abovesaid errors alleged above by him in the form
abovesaid. And he seeks that the abovesaid judgment on account of the
abovesaid errors and others found in the abovesaid record and process be
revoked, annulled, and completely had for nothing, and that he be
restored to everything he lost by the occasion of the abovesaid judgment,
and that the court of the said lord king here proceed to the examination
both of the abovesaid record and process and of the abovesaid errors.
And because the court of the said lord king here is not yet advised to
render its judgment of and on the premisses, day thereof is given to the
aforementioned Thomas before the said lord king until the quindene of
Easter wherever etc., to hear his judgment thereof etc., because the court
of the lord king here thereof not yet etc. At which day before the lord king at Westminster comes the abovesaid
Thomas in his proper person. Thereon, both the record and process
abovesaid and the judgment abovesaid thereon rendered and the causes
and matters abovesaid assigned for errors by the same Thomas having
been seen, more fully understood, and diligently examined by the court
of the said now lord king, because it seems to the court of the said now
lord here that the abovesaid record and process is vicious and defective
in law, therefore it is considered that the abovesaid judgment on account
of the abovesaid errors and others found in the abovesaid record and
process be revoked, annulled, and completely had for nothing, and that
the abovesaid Thomas be restored to everything he lost by occasion of
the abovesaid judgment etc., and that the abovesaid Thomas go thereof
without day etc. [Margination:] Let the judgment be revoked.
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0397,
1320,
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