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The Relationship between Chancery and the Common Law: Penal Bonds


The case of Edward Roane retails the course of enforcement of a penal bond. The debtor, Turnor, defaulted; so that the creditor, Roane, sued at common law to enforce the penalty. Roane petitioned chancery to intervene. Chancery intervention required the appearance of both debtor and and creditor, and the matter was submitted to a master for the master's opinion. The master reduced the creditor's estimate of his actual damages and so reported back. Chancery ordered the debtor to pay, and that order was delivered to Turnor by the creditor's agent. Turnor staved off paying, then, by promising to pay on a later date if the Roane stopped the execution out of chancery. When Turnor again defaulted, Roane then sued in indebitatus assumpsit, now for a larger sum than the chancery award.

This case is good evidence that by this date the reduction of a penal bond to actual damages was certainly available but required a full hearing and the testimony of the parties: it was not simply an automatic process. The case also indicates the degree of difference between the penalty and actual damages. The penalty amount here was 200 pounds, whereas the master in chancery estimated actual damages were only 16 pounds.


The case of Edward Roane v. Thomas Turnor, court of king's bench, Trinity 1607


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London. Memorandum that formerly to wit in Easter term last past before the lord king at Westminster came Edward Roane gentleman by James Caston his attorney and proffered here in the court of the said lord king then there his certain bill against Thomas Turnor gentleman in the custody of the marshal etc., concerning a plea of trespass on the case, and there are pledges to prosecute, scilt., John Doo and Richard Roo, which certain bill follows in these words:

 

[Turnor, in response to a common law suit to enforce a penal bond for 200 pounds, petitioned in chancery against such enforcement and Roane answered the petition]

London. Edward Roane gentleman complains of Thomas Turnor gentleman in the custody of the marshal of the marshalsea of the lord king being before the same king for this, viz., that, whereas the abovesaid Thomas Turnor lately exhibited a certain petition or his bill of complaint in the court of the chancery of the now lord king, the same court of chancery then being at Westminster in Middlesex, against that Edward Roane for the relief (in English, releefe) in the same court against the same Edward among other things on a certain obligatory writing of 200 pounds that the same Thomas and a certain William Wiseman had made to the aforementioned Edward recently before the abovesaid bill exhibited and on which certain obligatory writing the abovesaid Edward before the abovesaid bill exhibited prosecuted his suit at common law against that Thomas Turner and the abovesaid William Wiseman for recovery of the abovesaid 200 pounds, to which certain bill thus exhibited by the aforementioned Thomas Turner in the abovesaid court of chancery the abovesaid Edward in the same court answered,

 

[both petition and response in chancery were sent to a master for his opinion]

and whereas, the abovesaid suit in the abovesaid court of chancery pending, afterwards, scilt., on Wednesday July 2 in the fourth year of the reign of the said now lord James by the same court of chancery, the same court of chancery then being at Westminster abovesaid in Middlesex, it was ordained that both the abovesaid petition or bill of complaint of the abovesaid Thomas Turnor and the response of the abovesaid Edward made to the same bill should be referred to a certain John Hunt doctor of laws a master of the abovesaid court of Chancery to inquire and certify to that court (in English, to consider and report to that court) what money in his opinion the abovesaid Edward ought to have from the aforementioned Thomas Turnor for or on any cause mentioned in the abovesaid bill and response, as by the same order remaining of record in the said court of chancery it more fully clear and appears,

 

[master’s opinion and chancery order for Turnor to pay 16 pounds]

and whereas also the abovesaid John Hunt one of the masters of the abovesaid court of chancery afterwards, scilt., on November 25 in the year of the lord 1606 at Westminster abovesaid by virtue of the abovesaid order of the abovesaid court of chancery certified to that same court then being at Westminster abovesaid that he in the presence of the learned counsel of both parties abovesaid had considered the abovesaid bill and response and had found that the abovesaid Edward Roane estimated on his oath and conscience (in English, tooke ytt upon his oathe & conscyence) that by the delays of the abovesaid Thomas Turnor and by his costs and burdens otherwise he was damaged to the value of 25 pounds or thereabouts, which certain sum thus demanded by the abovesaid Edward, the abovesaid John Hunt by the same certification (in English, reporte) estimated by compromise (in English, thought meete) by way of mitigation to reduce to 16 pounds and that the abovesaid Thomas Turnor be ordained to pay the same sum of 16 pounds within some convenient time, as by that certification (in English, reporte) remaining in the said court of chancery at Westminster abovesaid it more fully appears, on which certain certification (in English, reporte) afterwards, scilt., on Friday January 30 in the abovesaid fourth year, by the abovesaid court of chancery, the same court then being at Westminster abovesaid in Middlesex, it was ordained that if the abovesaid Thomas Turnor on the Friday then next following after the date of the order (he having sufficient notice of that order) not show to the court of chancery abovesaid good cause to the contrary then the abovesaid Thomas Turnor without delay should pay to the aforementioned Edward or his assign the abovesaid 16 pounds according to the abovesaid certification (in English, report) of the abovesaid John Hunt, as by the same order remaining similarly in the said court of chancery at Westminster abovesaid it more fully is clear and appears,

 

[when Turnor did not pay, Roane sued out a writ of execution that was then duly delivered on Turnor]

and, whereas also the abovesaid Thomas Turnor afterwards and before the Friday immediately after the date of the abovesaid order last mentioned at Westminster abovesaid had sufficient notice of the same order and nevertheless that Thomas Turnor did not pay the abovesaid 16 pounds to the aforementioned Edward according to the ordinance and did not show any cause to the contrary of the same order to the aforementioned court of chancery at the abovesaid day given by the same order, whereon the abovesaid Edward afterwards, scilt., on February 9 in the abovesaid fourth year, purchased and prosecuted out of the abovesaid court of chancery of the said lord king, the same court of chancery then being at Westminster abovesaid in Middlesex, a certain writ of the said now lord king under the great seal of England de executione ordinis on the order abovesaid last recited directed to the aforementioned Thomas Turnor, by which certain writ the same now lord king (reciting the abovesaid order last mentioned in these words following, scilt.: on Friday January 30 in the fourth year of the reign of the lord James now King between Thomas Turnor plaintiff and Edward Roane defendant, [in English:] forasmoche as maister doctor Hunt one of the maisters of this courte (to whose consideration the playntiffes byll & defendantes answer was referred by an order of the second of July last past to reporte to this courte whatt mony the defendant ought in his opinion to have of the playntiffe for or uppon any cause in the said bill or answer mencioned) hath upon hearing of the said partyes & of their councell made reporte to this courte under his hande thattt he thinckes ytt fytt for the reasons in the said reporte mencioned that the playntiffe be ordered to paye the somme of sixtene poundes unto the defendant, it is therefore this present day ordered att the mocion of Maister Mildmaye being of the defendantes councell thatt yf the said playntiffe shall nott on this day sevenighte (he having sufficient notyce of this order) shewe unto this courte good cawse to the contrary then the playntyf shall forthwith pay unto the defendant or his assignes the said sixtene poundes according to the said reporte, their hath bene no cause shewed to the contrary hereof being nowe the seventh of February 1606, by Richard Edwardes deputy registrar) ordered that he do and fulfil all and singular contained and specified in that order that touched or concerned however much or as to that Thomas Turner in anything without delay according to the force, form, and effect of the same order, as by that writ it more fully appears, which certain writ de executione ordinis abovesaid under the abovesaid seal afterwards, scilt., on February 10 in the abovesaid fourth year was shown to the aforementioned Thomas Turner at London abovesaid, to wit in the parish of Blessed Mary of the Arches in the ward of Cheap, London, by a certain Robert Hamby gentleman on the part of the abovesaid Edward and a true copy of that writ was delivered to the same Thomas Turner by the same Robert Hamby then and there on the part of the abovesaid Edward, and then and there the abovesaid 16 pounds was required by the aforementioned Robert Hamby to be paid from the abovesaid Thomas to him to the use of that Edward,

 

[Turnor promised to pay in two weeks, whereon Roane stopped suing his execution]

whereon the abovesaid Thomas Turnor afterwards, scilt., on February 14 in the abovesaid fourth year at London abovesaid in the parish and ward abovesaid in consideration that the abovesaid Edward to the special instance and request of the abovesaid Thomas would desist in prosecuting further in the said court of chancery against that Thomas on the abovesaid writ de executione ordinis for non-payment of the abovesaid 16 pounds from that Thomas in the abovesaid form, assumed on himself and promised to the same Edward then and there faithfully that he the same Thomas Turnor wanted to pay and content the abovesaid 16 pounds to the same Edward at the mancional house of the abovesaid Robert Hambye in Hadleigh in the county of Suffolk on the Monday immediately after the end of the two weeks then next following (in English, upon the munday fortnight after) well and faithfully, and the same Edward in fact says that he the same Edward relying on the abovesaid promise and undertaking of the abovesaid Thomas from the whole time of the promise and undertaking abovesaid made until the present desisted and still desists in prosecuting further in the said court of chancery against the abovesaid Thomas on the abovesaid writ de executione ordinis for non-payment of the abovesaid 16 pounds,

 

[Turnor defaulted again, so Roane here sues for damages of 40 pounds]

nevertheless the abovesaid Thomas, not at all caring about his promise and undertaking abovesaid but scheming and fraudulently intending slyly and craftily to deceive and defraud the same Edward in this part, has still not paid the abovesaid 16 pounds to the same Edward according to his abovesaid promise and undertaking nor contented the same Edward in any way for the same up until the present although the same Thomas often requested that Edward after the abovesaid Monday after the end of the abovesaid two weeks after the promise and undertaking abovesaid to wit on the last day of April in the fifth year of the reign of the said now lord king at London abovesaid in the abovesaid parish and ward, whereby the same Edward has completely lost the whole gain, benefit, and profit which he could have had and taken with the abovesaid 16 pounds by lawfully buying, selling, and bargaining if the abovesaid Thomas had performed and fulfilled his abovesaid promise and undertaking in the abovesaid form, to the damage of the same Edward of 40 pounds, and thereof he produced suit etc.

 

[joinder of issue and jury summons on whether Turnor undertook to pay the 16 pounds]

And now at this day, scilt., on the Friday immediately after the morrow of Holy Trinity this term to when the abovesaid Thomas Turnor had license to emparl at that bill and then to respond etc., before the lord king at Westminster comes both the abovesaid Edward Roane by his abovesaid attorney and the abovesaid Thomas Turnor by Thomas Farrer his attorney. And the same Thomas Turnor defends force and injury when etc., and says that he did not undertake on himself in the mode and form abovesaid as the abovesaid Edward above complains against him, and of this he puts himself on the countryside. And the abovesaid Edward similarly etc. Therefore let come therefore a jury before the lord king at Westminster on the day (blank) immediately after (blank) and who neither etc., to recognize etc., because both etc. The same day is given to the abovesaid parties there etc.