Edmund Peshall v. Edward Kynaston & Judith his wife, court of king’s bench, 1607
Writ of error (dated May 6, 1607) to Edward Coke concerning the case Edmund Peshall v. Edward Kynaston late of Otley, Shropshire, and Judith his wife, a plea of trespass on the case in the court of common pleas and the damage award in that case of £217. Pursuant to that writ, Coke sent to the court of king’s bench the record of the case:
[HEADING OF RECORD]
Record and process concerning which mention is made in the abovesaid writ with all things touching them follows in these words:
Pleas at Westminster before Edward Coke knight and his companions the king’s justices of the Bench from Michaelmas in the fourth year of the reign of James by the grace of God king of England, France, and Ireland, defender of the faith etc., and of Scotland the fortieth (year). On membrane 604.
[COMPLAINT]
[Lancelot Batherst, citizen of London, executed his will that left £300 to his daughter Mary]
Middlesex. Edward Kynaston late of Otley in the county of Shropshire knight and Judith his wife were attached to answer Edmund Peshall concerning a plea, why, whereas a certain Lancelot Batherst being in his life a citizen and free man of the city of London on August 9 in the 38th year of the reign of the Lady Elizabeth queen late queen of England [1596] at Westminster executed his testament in writings and by his same testament among other things he gave and devised from a third part of his goods, chattels and debts pertaining to him to dispose by the custom of the city of London abovesaid to a certain Mary Batherst his daughter £300 to be paid to the same Mary at her age of 18 years or at the day of her marriage, whichever should happen first and constituted and ordained the abovesaid Judith then his wife executrix of his testament abovesaid, and afterwards, scilt., September 29, 1596, the same Lancelot then being a citizen and free man of the city of London abovesaid at Westminster abovesaid died possessed of his proper divers goods and chattels and debts owed to him to the value of £7,900 and more beyond the goods and chattels sufficient to pay all debts owed by him at the time of his death and the necessary expenses to be expended surrounding his funeral and burial, the same Mary then being 17 years old and not more and not promoted (in English, advaunced) by the said Lancelot in his life and then being an orphan of the same Lancelot by reason of her minority abovesaid;
[custom of London about minor children’s share of their father’s estate]
and whereas also within the city of London abovesaid there is had and from time immemorial has been had a custom that if any person being a citizen and free man of the city of London abovesaid should die possessed of goods and chattels and debts owing to him to a greater sum than the debts then owing by him and the necessary to be expended surrounding his funeral and burial then having a child or children then being under the age of 21 years and a wife who survived him, ///IMG 0044/// that then the child or children of such citizen and free man of the city of London abovesaid being underage surviving him and during his life before not at all being promoted by him (in English, not advaunced) have and from the time abovesaid have been accustomed to have a third part of all such manner goods, debts, and chattels whereof this kind of citizen and free man should die so possessed beyond the goods, chattels, and debts sufficient to pay the debts owing by him at the time of his death and the necessary expenses surrounding his burial and funeral, as the same goods and chattels and debts whereof he died possessed should happen or appear to be of greater or lesser value by the inventory of the same goods, debts, and chattels in court before the mayor and aldermen of the city of London abovesaid for the time being held in the Guildhall Chamber of the city of London abovesaid according to the custom of the same city commonly called the Orphantes Court to be exhibited by the executor or executors of the testament and last will of this manner citizen and free man of the city of London abovesaid,
[Mary’s customary portion was larger than her father’s devise]
by force of which custom it pertained to the abovesaid Mary as being one of the orphans of the said Lancelot after the death of the abovesaid Lancelot her father according to the abovesaid custom to have a greater portion of the goods, debts, and chattels that were the abovesaid Lancelot’s at the time of his death than the said £300 thus devised to the same Mary by the testament abovesaid as set out above, as the same appears in total to be or to be worth by the inventory of the same to be exhibited thence in the court before the then mayor and aldermen of the city of London abovesaid to be held in the Guildhall Chamber of that city commonly called the Orphans Court according to the custom of the same city of London,
[Lancelot’s widow Judith was executor]
and whereas also after the death of the abovesaid Lancelot the said Judith accepted on herself at Westminster the burden of the execution of the abovesaid testament of the said Lancelot,
[marriage negotiation to marry Mary to Edmund Peshall]
and whereas afterwards, scilt., on June 1, 1597, and for the space of 6 months then last past at Westminster abovesaid a certain colloquium was had and moved between the same Edmund and the abovesaid Judith while she was single of and concerning a certain marriage between the same Edmund and the abovesaid Mary Batherst, daughter of the abovesaid Judith and of the same Lancelot Batherst then deceased late husband of the same Judith and father of the abovesaid Mary to be had and solemnized, the same Mary being then one of the children and orphans of the said Lancelot and under the age of 21 years and being then and never before married or promoted by the said Lancelot in his life in any way,
[Judith, to hurry the marriage, agreed to make up whatever difference there was between Mary’s share of the inheritance and £1,000]
the abovesaid Judith while she was single, afterwards on the same June 1 in the year of the Lord 1597 abovesaid at Westminster abovesaid in consideration that the said Edmund at the instance of the said Judith would take the said Mary as his wife and would hurry (in English, would hasten) the marriage between the same Edmund and the abovesaid Mary to be had and solemnized undertook on herself and faithfully promised then and there to the same Edmund that if it should appear by the testament of the abovesaid Lancelot before that time executed and by the inventory of the goods, debts, and chattels that were the abovesaid Lancelot’s at the time of his death exhibited by that Judith in the court abovesaid held before the mayor and aldermen of the city of London in the Guildhall Chamber of the city of London abovesaid and commonly called the Orphans Court that the portion of the abovesaid Mary that should pertain to the same Mary to have at the time of the exhibition of the indentures abovesaid by reason of the abovesaid testament and custom of the city of London abovesaid from the goods, debts, and chattels abovesaid from the good estate (in English, of the good estate) of the said Lancelot should not attain (in English, should not amount) to £1,000, then the same Judith would pay to the same Edmund to the use of that Edmund soon after the abovesaid marriage had such sums of money as would make the said portion of the abovesaid Mary ///IMG 1078/// to attain to £1,000,
[Edmund relied on the promise and married Mary]
and the same Edmund in fact says that he, faithfully relying on the promise and undertaking abovesaid of the abovesaid Judith after that promise and undertaking made at the instance of the said Judith hurried the abovesaid marriage between that Edmund and the abovesaid Mary to be had and solemnized, and by occasion of the same afterwards, scilt., on June 9 in the year of the Lord 1597 abovesaid, at Westminster abovesaid he took the abovesaid Mary as his wife and then the abovesaid marriage between the same Edmund and the abovesaid Mary after the abovesaid promise and undertaking was hurried and solemnized,
[the inventory of Lancelot’s estate indicated that Mary’s share was only £640, and Judith made up a further £185]
and the same Edmund further in fact says that before the promise and undertaking abovesaid made on the day as set out before, scilt., on April 21 in the year of Lord 1597 abovesaid, at London abovesaid a certain indenture concerning the goods, debts, and chattels that were the abovesaid Lancelot’s at the time of his death was exhibited by the said Judith as executrix of the abovesaid testament of the said Lancelot in the abovesaid court then held before Henry Billingsley then mayor and the then aldermen of the city of London abovesaid in the Guildhall Chamber of the abovesaid city according to the custom of the city of London abovesaid and that then it appeared by that testament and the inventory abovesaid thus exhibited that the portion of the abovesaid Mary from the goods, debts, and chattels abovesaid that then pertained to the same Mary to have by reason of the abovesaid testament and custom abovesaid from the good estate of the said Lancelot attained to £640 and not more, and the abovesaid Judith afterwards while she was single paid the said Edmund £185 of the legal money of England in part fulfillment of her promise and undertaking abovesaid,
[Judith then married Edward Kynaston, but then did not pay the remaining £175]
and afterwards the said Judith at Westminster abovesaid took as husband the said Edward, but nevertheless the abovesaid Judith while she was single and the abovesaid Edward and Judith after the espousals celebrated between the said Edward and Judith, not caring at all for the promise and undertaking abovesaid of the abovesaid Judith, but scheming and fraudulently intending hotly to deceive and defraud the same Edmund in this part after the abovesaid marriage had in the abovesaid form have still not paid nor has either of them paid the £175 being the residue of such sums of money that made the abovesaid portion that pertained to the abovesaid Mary to be had from the goods, debts, and chattels that were the said Lancelot’s at the time of his death from the good estate of the said Lancelot appearing by the testament and inventory abovesaid as set out before amount to £1,000 according to the promise and undertaking abovesaid of the abovesaid Judith, although the abovesaid Judith after the abovesaid marriage had between the same Edmund and Mary while the same Judith was single , scilt., on June 15 in the year of the Lord 1597 abovesaid, was required to this at Westminster abovesaid by the same Edmund but she and they wholly refused and still refuse to pay the £175 to the same Edmund, to the damage of that Edmund of 500 marks etc.
[COUNT]
[Lancelot Batherst, citizen of London, executed his will that left £300 to his daughter Mary]
And wherefore the same Edmund by Thomas Nelson his attorney complains, why, whereas a certain Lancelot Batherst being in his life a citizen and free man of the city of London on August 9 in the 38th year of the reign of the Lady Elizabeth late queen of England [1596] at Westminster executed his testament in writings and by the same his testament among other things gave and devised from the third part of his goods, chattels, and debts that pertained to him to dispose by the custom of the city of London abovesaid to a certain Mary Batherst his daughter £300 to be paid to the same Mary at her age of 18 years or at the day of her marriage, whichever should happen first and constituted and ordained the abovesaid Judith then his wife executrix of his testament abovesaid, and afterwards, scilt., on September 29 in the 38th year abovesaid [1596], the same Lancelot then being a citizen and free man of the city of London abovesaid at Westminster abovesaid died possessed of divers his own proper goods and chattels and debts owing to him to the value of £7,900 and more beyond the goods and chattels to be expended surrounding his funeral and burial, the same Mary then being 17 years old and not more and not promoted (in English, not advaunced) by the same Launcelot in his life and then being one of the orphans of the same Lancelot by reason of her minority abovesaid,
[custom of London about minor children’s share of their father’s estate]
and whereas also within the city of London abovesaid there is had and from time immemorial was had the custom that, if any person being a citizen and free man of the city of London abovesaid should die possessed of goods and chattels and debts owing to him attaining to a greater sum than the debts then owed by him and the necessary expenses to be expended surrounding his funeral and burial then having a child or children being under the age of 21 years and a wife who survives him, ///IMG 1079/// that then the child or children of such citizen and free man of the city of London abovesaid being minors surviving him and in his life before being not at all promoted (in English, not advaunced) had and from time immemorial have been accustomed to have a third part of all this manner goods, debts, and chattels whereof this manner citizen and free man so died possessed beyond the goods and chattels and debts sufficient to pay the debts owing by him at the time of his death and the necessary expenses surrounding his burial and funeral as the goods and chattels and debts whereof he died possessed should happen [or] appear to be of greater or lesser value by the inventory of the same goods, debts, and chattels to be exhibited by the executor or executors of the testament and last will of this manner citizen and free man of the city of London abovesaid in the court held before the mayor and aldermen of the city of London abovesaid for the time being in the Guildhall Chamber of the abovesaid city according to the custom of the city of London abovesaid commonly called the Orphans Court,
[Mary’s customary portion was larger than her father’s devise]
by force of which custom it pertained to the abovesaid Mary as being one of the orphans of the said Lancelot after the death of the abovesaid Lancelot her father according to the custom abovesaid to have a greater portion of the goods, debts, and chattels that were the abovesaid Lancelot’s at the time of his death than the said £300 devised to the same Mary by the abovesaid testament thus as set out before as the same would appear in total to be or to be worth by the inventory of the same to be exhibited thence in the court held before the then mayor and aldermen of the city of London abovesaid in the Guildhall Chamber,
[Lancelot’s widow Judith was executor]
and whereas also after the death of the abovesaid Lancelot the said Judith accepted on herself the burden of the execution of the abovesaid testament of the said Lancelot at Westminster abovesaid,
[marriage negotiation to marry Mary to Edmund Peshall]
and whereas afterwards, scilt., on June 1 in the year of our Lord 1597 and for the space of the 6 months then last past at Westminster abovesaid, a certain colloquium was had and moved between the same Edmund and the abovesaid Judith while she was single of and concerning a certain marriage between the same Edmund and the abovesaid Mary ///0045/// Batherst daughter of the abovesaid Judith and the same Lancelot Batherst then deceased late husband of that Judith and father of the abovesaid Mary to be had and solemnized, the same Mary then being one of the children and orphans of the said Lancelot and under the age of 21 years old and being then or ever before not all married or by the said Lancelot in his life in any way promoted,
[Judith, to hurry the marriage, agreed to make up whatever difference there was between Mary’s share of the inheritance and £1,000]
the abovesaid Judith while she was single afterwards, scilt., on the same June 1 in the year of the Lord 1597 abovesaid at Westminster abovesaid in consideration that the said Edmund at the instance of the said Judith would take as his wife Mary and hurry (in English, would hasten) the marriage between the said Edmund and the said Mary to be had and solemnized, undertook on herself and faithfully promised to the same Edmund then and there that, if it should appear by the testament of the abovesaid Lancelot before then executed and by the inventory of the goods, debts, and chattels that were the abovesaid Lancelot’s at the time of his death exhibited by that Judith in the court abovesaid held before the mayor and aldermen of the city of London in the Guildhall Chamber of the city of London abovesaid and commonly called the Orphans Court that the portion of the abovesaid Mary that should pertain to that Mary at the time of the exhibition of the abovesaid inventory by reason of the abovesaid testament and the custom of the city of London abovesaid from the goods, debts, and chattels abovesaid from the good estate (in English, of the good estate) of the said Lancelot should not attain (in English, should not amount) to £1,000, then the same Judith would pay to the same Edmund to the proper use of that Edmund after the abovesaid marriage had such sums of money as would make the said portion of the abovesaid Mary attain to £1,000,
[Edmund relied on the promise and married Mary]
and the same Edmund in fact says that he faithfully relying on the abovesaid promise and undertaking of the abovesaid Judith after that promise and undertaking made in the form abovesaid at the instance of the said Judith hurried the abovesaid marriage between that Edmund and the abovesaid Mary to be had and solemnized and by occasion of the same afterwards, scilt., on June 9 of the year of the Lord 1597 abovesaid at Westminster abovesaid he took as his wife the abovesaid Mary, and the abovesaid marriage between the same Edmund and the abovesaid Mary after the abovesaid promise and undertaking was then hurried and solemnized,
[the inventory of Lancelot’s estate indicated that Mary’s share was only £640, and Judith made up a further £185]
and the same Edmund further in fact says that before the promise and undertaking abovesaid made thus as set out before, scilt., on April 21 in the year of the Lord 1597 abovesaid, at London abovesaid, viz., in the parish of St. Michael Bassishaw in the ward of Bassishaw a certain inventory of the goods, debts, and chattels that were the abovesaid Lancelot’s at the time of his death was exhibited by the said Judith as executrix of the abovesaid testament of the said Lancelot in the abovesaid court then held before Henry Billingsley then mayor and the then aldermen of the city of London abovesaid in the Guildhall Chamber of the city of London abovesaid according to the custom of the city of London abovesaid and that then it appeared by that testament and the abovesaid inventory thus exhibited that the portion of the abovesaid Mary from the goods, debts, and chattels abovesaid that pertained to that Mary then to be had by reason of the abovesaid testament and the abovesaid custom from the good estate of the said Lancelot attained to £640 and not more, and the abovesaid Judith afterwards while she was single paid to the said Edmund £185 of the legal money of England in part fulfillment of her promise and undertaking abovesaid, and afterwards the said Judith at Westminster abovesaid took as husband the said Edward,
[Judith then married Edward Kynaston, but then did not pay the remaining £175]
nevertheless the abovesaid Judith while she was single and the abovesaid Edward and Judith after the espousals celebrated between the said Edward and Judith, not caring at all for the promise and undertaking abovesaid of the abovesaid Judith but scheming and fraudulently intending hotly to deceive and defraud the same Edmund in this part still did not pay nor did either of them pay to the same Edmund after the abovesaid marriage had in the abovesaid form the £175 being the residue of such sums of money that made the abovesaid portion that pertained to the abovesaid Mary to be had from the goods, debts, and chattels that were the said Lancelot’s at the time of his death from the good estate of the said Lancelot appearing by the testament and inventory abovesaid as set out before to attain to £1,000 according to the promise and undertaking of the abovesaid Judith abovesaid, although the abovesaid Judith after the abovesaid marriage between the said Edmund and Mary had while the same Judith was single, scilt., on June 15 in the year of the Lord 1597 abovesaid, was required to this at Westminster abovesaid by the same Edmund, but they wholly refused and still refuse to pay the said £175 to the same Edmund, to the damage of that Edmund of 500 marks. And thereof he produces suit etc.
[DEFENDANTS’ NOT GUILTY PLEA AND JOINDER OF ISSUE]
And the abovesaid Edward and Judith by John Lutwich his attorney come and defend force and injury when etc. And they say that the abovesaid Judith did not undertake on herself in the manner and form as the abovesaid Edmund above complains against them, and of this they put themselves on the countryside. And the abovesaid Edmund similarly.
[PROCESS FOR JURY BEFORE COKE]
Therefore it is ordered to the sheriff that he should make to come here on the octaves of St. Hilary 12 etc., by whom etc., and who neither etc., to recognize etc., because both etc. At which day the jury between the parties abovesaid concerning the abovesaid plea was put into respite thereof between them here until this day, scilt., the quindene of Easter then next following unless Edward Coke knight assigned the lord king’s chief justice of the Bench here by form of the statute etc., on Friday February 13 last past at Westminster within the hall there commonly called Westminster Hall in the county abovesaid before then should come. And now here at this day comes the abovesaid Edmund Peshall by his abovesaid attorney; and the aforementioned chief justice before whom etc., sent here his record in these words:
[RECORD OF JURY VERDICT FOR PLAINTIFF FOR £217]
Afterwards on the day and place contained within before Edward Coke knight the lord king’s chief justice of the Bench associating to himself Nicholas Raby by form of the statute etc., come both the within-named Edmund Peshall and the within-written Edward Kynaston and Judith by their within-contained attorneys. And the jurors of the jury whereof mention is made within, exacted, certain of them, viz., Thomas Tickeridge, Daniel Pate, Henry Grey, Phillip Demaryne, Christofer Smyth, John Yorke, Thomas Wytty, Nicholas Startupp, Edward Assiter, Thomas Wyndsor, and Phillip Tallis, come and are sworn into the abovesaid jury. And because the rest of the jurors of the same jury did not appear, therefore others from those standing around chosen to this by the within-written sheriff of the county at the request of the abovesaid Edmund Peshall and by the mandate of the abovesaid chief justice anew are appointed now appearing, viz., Benjamin Boone, comes, who, empanelled and sworn to tell the truth concerning the within-contained together with the other abovesaid jurors before empanelled; chosen tried and sworn, they say on their oath that the abovesaid Judith undertook on herself in the manner and form as the abovesaid Edmund Peshall within complains against her and the abovesaid Edward Kynaston. And they assess the damages of that Edmund Peshall by occasion of the non-performance of the undertaking and promise within-contained, beyond his outlays and costs put out by him on his suit in this part at £200; and for those outlays and costs at 10 shillings. Therefore it is considered that the abovesaid Edward Peshall recover against the aforementioned Edward Kynaston and Judith his damages abovesaid at £200 and 10 shillings assessed by the abovesaid jury in the form abovesaid, as well as £16 and 10 shillings awarded by the court here by the increment to the same Edmund at his request for his outlays and costs abovesaid, which certain damages in total amount to £217. And the abovesaid Edward Kynaston and Judith in mercy etc.
[ALLEGATION OF ERROR BY KYNASTON]
Afterwards, scilt., on the Monday next after the octaves of St. Martin in this same term before the lord king at Westminster comes the abovesaid Edward Kynaston knight and Judith his wife by John Lloyd their attorney, and they say that in the record and process abovesaid and also /// IMG 1080/// in the rendering of the abovesaid judgment there it is manifestly erred, viz., in this that the narration abovesaid of the abovesaid Edmund Peshall is less sufficient in law, viz., in this that the complainant by that narration did not allege or demonstrate that the abovesaid Edward Kynaston and Judith his wife broke or either of them broke the promise to the said Edmund supposed in the abovesaid record to have been made by that Judith while she was single, whereon the narration abovesaid of the said Edmund is founded, nor did he allege any matter in the abovesaid record by which it can appear that the said supposed promise was broken by the abovesaid Edward Kynaston knight and Judith or either of them and that the abovesaid judgment by that reason by the law of the land ought to have been rendered for the aforementioned Edward Kynaston knight and Judith his wife against the aforementioned Edmund Peshall and not for the same Edmund against the said Edward Kynaston and Judith, and in this the same Edward Kynaston knight and Judith say that manifestly it was erred, and the same Edward and Judith seek a writ of the lord king to be directed to the sheriff of the county of Middlesex to warn the aforementioned Edmund Peshall to be before the said lord king wherever etc., to hear the record and process abovesaid, and it is granted to them etc. Whereby it is ordered to the same sheriff of Middlesex that he should make to be known to the aforementioned Edmund Peshall to be before the said lord king on the octaves of Hilary wherever he then be in England to hear the record and process if etc., and further etc. That day is given to the aforementioned Edward Kynaston and Judith his wife etc.
[PLEADING IN ERROR]
At which day before the lord king at Westminster come the abovesaid Edward Kynaston and Judith his wife by their attorney abovesaid, and the sheriff returns that he by virtue of the lord king’s writ directed to him thereof made to be known by John David and Richard Fenn prudent etc., the aforementioned Edmund to be before the lord king at the day and place abovesaid as by the writ abovesaid it was ordered to him; which certain Edmund according to the warning made to him in this part similarly comes by Reginald Hughes his attorney, whereon the abovesaid Edward and Judith as before say that in the record and process and also in the rendering of the abovesaid judgment it was manifestly erred by alleging the abovesaid error alleged by them in the abovesaid form, and they ask that the abovesaid judgment on account of the errors and other things being in the record and process abovesaid be revoked, annulled, and be had completely for nothing, and that they be restored to everything that they lost by occasion of the abovesaid judgment etc., and that the abovesaid Edmund rejoin to the abovesaid error etc., and that the court of the lord king here proceed to examination both of the record and process abovesaid and of the abovesaid matter assigned above for error. And the abovesaid Edmund says that neither in the record and process nor in the rendering of the judgment abovesaid has it erred in anything, and he seeks similarly that the court of the lord king proceed to examination both of the record and process abovesaid and of the matter abovesaid assigned for error, and that the abovesaid judgment in all things be affirmed.
[RECOGNITION BY PESHALL THAT HE HAS BEEN SATISFIED]
Afterwards, scilt., on Monday next after the morrow of the Ascension of the Lord then next following before the lord king at Westminster comes the abovesaid Edmund Peshall by Reginald Hughes his attorney specially constituted for this and acknowledges that he has been satisfied by the abovesaid Edward Kynaston knight and Judith his wife concerning the damages, outlays, and costs abovesaid. Therefore the same Edward and Judith concerning those damages, outlays, and costs go quit etc.