Edward Phippes and Anna his wife executrix v. John Kempe, court of king’s bench, 1607

This action of covenant arises between one party to a covenant and the executrix of the other party. In the indenture the groom’s father had covenanted to provide lodging and necessaries for the couple until he provided a separate home, and then he was to pay 10 shillings each year to the couple. The defendant demurs, probably because toward the end the bride’s mother and the mother’s executrix are asserted as the recipients of the money without including any assertion that they have become assigns.

[the case Edward Phippes and Anna his wife executrix v. Edward Griffyn now continues]

Warwickshire. Memorandum that formerly, scilt., in the term of St. Hilary last past before the lord king at Westminster came Edward Phippes and Anna his wife lately called Anna Pallmer executrix of the testament and last will of Agnes Griffyn widow deceased lately called Agnes Griffine widow late wife of Edward Griffine of Long Itchington in the county of Warwickshire yeoman lately deceased by Simon Harborne their attorney, and offered her in the court of the lord king then there their certain bill against John Kempe otherwise called John Kempe of Southam in the county of Warwickshire shoemaker in the custody of the marshal etc., concerning a plea of covenant broken, and there are pledges for prosecution, scilt., John Doo and Richard Roo, which certain bill follows in these words:

[there was an indenture made between John Kempe and Agnes Griffine in which, in consideration of a marriage to be between Thomas Kempe (son and heir) and Alice Palmer (one of Agnes’s daughters), they both covenanted and promised]

Warwickshire. Edward Phippes and Anna his wife lately called Anna Pallmer executrix of the testament and last will of Agnes Griffyn widow deceased lately called Agnes Griffine widowe late wife of Edward Griffine of Long Itchington in the county of Warwickshire yeoman lately deceased complain of John Kempe otherwise called John Kempe of Southam in the county of Warwickshire shoemaker in the custody of the marshal of the marshalsea of the lord king, being before the king himself concerning a plea of covenant broken, for this, viz., that, whereas by a certain indenture made at Southam abovesaid in the county abovesaid on August 10 in the thirty-fourth year of the reign of the Lady Elizabeth late queen of England between the abovesaid John Kempe by name of John Kempe of Southam in Warwickshire shoemaker on one side and the abovesaid Agnes Griffine in her life by the name of Agnes Griffine widow late wife of Edward Griffine of Long Itchington in the said county of Warwickshire yeoman lately deceased on the other side, the other part of which certain indenture sealed with the seal of the same John Kempe bearing the date on the same day and year the same Edward Phippes and Anna proffer here in court, in consideration of a marriage then thenceforth to be had and solemnized between Thomas Kempe then the son and heir of the said John Kempe and Alice Palmer one of the daughters of the said Agnes Griffine, and each of them covenanted, promised and granted with the other for themselves, their executors, administrators, and assigns and each of them by the abovesaid indenture in the mode and form following viz.,

[for John Kempe, that Thomas Kempe would marry Alice and for Agnes Griffine that Alice would marry Thomas Kempe]

first, the said John Kempe for himself, his executors, administrators, and assigns and each of them covenanted, promised, and granted to and with the said Agnes Griffine, her executors, administrators, and assigns and to and with each of them by the abovesaid indenture that the said Thomas Kempe his son before the feast of St. Michael the Archangel then next following the day of the date of the abovesaid indenture would bring and take as his wife the abovesaid Alice Palmer if the laws of this realm of England should permit and tolerate the same, and similarly the said Agnes Griffine for herself, her executors, administrators, and assigns and each of them covenanted, promised, and granted to and with the said John Kempe, his executors, administrators, and assigns and each of them by the abovesaid indenture that the said Alice Pallmer her daughter before the abovesaid feast of St. Michael the Archangel next following the day of the date of the abovesaid indenture would bring and take as her husband the said Thomas Kempe, if the laws of this realm should want to permit and tolerate this,

[and John Kempe covenanted that the couple would live with him and be provided for by him until John Kempe provided a tenement in a market town for which the couple would pay the usual rent and John Kempe would pay the couple 10 shillings each year]

and that the said John Kempe, his executors, administrators, or assigns at his or their proper costs and burdens would find and allocate or cause to be found or allocated within the then mancional house of the said John Kempe at Southam abovesaid from the day of the solemnization of the marriage between the same Thomas and Alice to and for the said Thomas and Alice and the children of their bodies legitimately procreated the convenient necessities: a decent, and salubrious dwelling chamber (in English, lodginge), food and drink, and firewood or coal for a fire, with free ingress, egress, and regress, in and out of the said home and chamber at all convenient time and times, without any obstacle, disturbance, or impediment either by the said John Kempe, Margery then his wife, his executors, administrators, or assigns, or by any other person or persons by the act, consent, or procurement of him, them, or any of them through and during such term and time and until the said John Kempe, his executors, administrators, or assigns at the burdens and costs of him or of them have taken a good and sufficient demise or a sufficient copy and decent house with appurtenances within some market town (in English, some markett towne) within the county of Warwickshire either for the term of the natural lives of the said Thomas and Alice and the longer liver of them or for and during the term of 21 years, and by sealing and delivery of the said demise or copy in the name of the said Thomas Kempe and Alice his wife to their proper work and uses the said Thomas and Alice (would pay?) the usual rent in good faith without fraud or deception, and that the said John Kempe or his assigns for and during the natural life of that John well and faithfully will pay or cause to be paid annually to the said Thomas and Alice or either of them or to their assigns or the assigns of either of them the sum of 10 shillings of the lawful money of England at two terms or feasts in the year, viz., at, in, or on the festival day of St. Michael the archangel and the Annunciation of the Blessed Virgin Mary by even and equal portions as by the same indentures more fully is clear and appears,

[whereon Thomas Kempe and Alice Pallmer married]

and the same Edward Phippes and Anna in fact say that after the making, sealing, and delivery of the abovesaid indenture and before the abovesaid feast of St. Michael the Archangel next following the date of that indenture, scilt., on September 28 in the thirty-fourth year of the reign of the said late queen abovesaid, at Southam abovesaid in Warwickshire the abovesaid marriage was solemnized and consummated according to the laws of this realm of England between the abovesaid Thomas Kempe and the abovesaid Alice Pallmer,

[thereafter Agnes Griffine died and by her will made Anna her executrix, after which Anna married Edward Phippes]

and the same Edward and Anna further say that afterwards, scilt., on December 6 in the thirty-ninth year of the reign of the said late queen, the abovesaid Agnes Griffine at Southam abovesaid established her testament and last will, and by that she established and ordained the abovesaid Anna by name of Anna Palmer her executrix of that testament and died, after whose death the same Anna proved the said testament by due form of law and accepted the burden of the execution of the abovesaid testament on herself, and afterwards, scilt., on January 1 in the forty-first year of the reign of the said late queen, the same Anna at Southam abovesaid took as her husband the abovesaid Edward Phippes.

[thereafter, Thomas Kempe (the groom) died, and Alice (the bride) survived him; Alice thereafter married Anthony Stallworthe, but John Kempe had never paid the 10 shillings he was supposed to pay each year to the couple and then to Alice, but then Agnes and then Anna as executrix are inserted as recipients without explanation]

And the same Edward and Anna further say that afterwards, scilt., on August 1 in the first year of the reign of the Lord James now king of England the abovesaid Thomas Kempe at Southam abovesaid died, and the abovesaid Alice survived him. And afterwards, scilt., on May 1 in the fourth year of the reign of the said now lord king of England, the same Alice at Southam abovesaid took as her husband a certain Anthony Stallworthe; and the same Edward Phippes and Anna further say that from the abovesaid time of the marriage between the abovesaid Thomas Kempe and the abovesaid Alice Pallmer in the abovesaid form solemnized until the feast of St. Michael the Archangel last past before the day of the purchase of this bill, viz., in the fourth year of the reign of the said now lord king of England abovesaid were fourteen years fully completed and expired, and the same Edward Phippes and Anna in fact say that abovesaid John Kempe in any year from the abovesaid time of the abovesaid marriage between the abovesaid Thomas and Alice in the abovesaid solemnized before the day of the purchase of this bill did not pay or cause to be paid to the aforementioned Thomas Kempe and Alice or either of them in the life of the same Thomas or of the aforementioned Alice after the death of that Thomas while she was single or of the aforementioned Anthony Stallworthe and Alice after the espousals celebrated between them the 10 shillings of the lawful money of England at the abovesaid feasts of St. Michael the Archangel and the Annunciation of the Blessed Virgin Mary limited and appointed by the abovesaid indented writing according to the form and effect of the abovesaid indenture, but the same sums are still unpaid. And thus the same Edward and Anna says that, although the abovesaid Agnes in her life and the abovesaid Anna after the death of that Agnes while she was single and the abovesaid Edward and Anna after the espousals between them celebrated guarded and fulfilled all and singular the covenants, grants, and agreements specified in the abovesaid indenture on the part of that Agnes and her executors to be performed and fulfilled well and faithfully according to the force, form and effect of the abovesaid indenture,

          [thus John Kempe broke his covenant] 

nevertheless the abovesaid John Kempe did not hold to but rather broke the covenant abovesaid between that John and the abovesaid Agnes made in her life because the said John or his assigns for and during his natural life well and faithfully should pay or cause to be paid annually to the said Thomas and Alice or either of them or to the assign or assigns of them or of either of them the sum of 10 shillings of the lawful money of England at two terms or feasts in the year, viz., in or on the festival day of St. Michael the Archangel and the Annunciation of the Blessed Virgin Mary by even and equal portions to the aforementioned Agnes in her life and to the aforementioned Anna after the death of that Agnes while she was single or to the aforementioned Edward and Anna after the espousals celebrated between them although he was often asked etc., and he completely refused to hold it to the aforementioned Agnes in her life and to the aforementioned Anna after the death of that Agnes while she was single and still refuses to hold to it to the same Edward and Anna, to the damages of the same Edward and Anna of 20 pounds and in the retardation of the faithful execution of the abovesaid testament, and thereof they produce suit etc., and the same Edward and Anna proffer in court testamentary letters of the abovesaid Anna by which it is sufficiently clear to the court of the said lord king here that that Anna is the executrix of the abovesaid testament of the abovesaid Agnes, and thereof to have the execution etc., and with this the same Edward and Anna want to verify that the abovesaid Anna still survives and is in full life, viz., at Southam abovesaid.

[John Kempe maintains that the plaintiffs have not laid out a case sufficient at law to require an answer (ie., they demur)]

And now, at this day, scilt., on Friday next after the morrow of Holy Trinity this same term, until which day the abovesaid John had licence to emparl to this bill and then to respond etc., before the lord king at Westminster come both the abovesaid Edward Phippes and Anna by their attorney abovesaid and the abovesaid John Kempe by George Brome his attorney, and the same John defends force and injury when etc., and seeks judgment of the count abovesaid, because he says that that count and the material contained in the same are less sufficient in law to maintained the action of the same Edward and Anna abovesaid against that John, to which the same John has no need nor is held by the law of the land to respond in any way. And this he is prepared to verify, wherefore the same John Kempe seeks judgment for default of the sufficiency of the account in this part and that that count be quashed etc.

[the plaintiffs likewise demur, and the court takes time to deliberate]

And the abovesaid Edward Phippes and Anna say that by anything alleged by the abovesaid John Kempe above the abovesaid count of the same Edward and Anna ought not at all to be quashed, because they say that that count and that matter contained in it are good and sufficient in law to maintain the action of the same Edward and Anna abovesaid against that John Kempe, which certain count and the matter contained in it the same Edward and Anna are ready to verify and prove as the court etc. And because the abovesaid John Kempe to that count does not respond nor denies that in any way to this time, the same Edward and Anna (ask for) their judgment and damages by the occasion of the premises to be adjudicated etc. And because the court of the lord king here is not yet advised to render their judgment in and on the premises, day thereof is given to the parties abovesaid before the lord king at Westminster until the Friday next after the octaves of St. Michael to hear their judgment of and on the premises, because the court of the lord king here thereof at this time etc.