John Constable, armiger & John Swale gentleman v. Edward, Archbishop of York : Michaelmas term, 1539

John Constable, armiger & John Swale gentleman v. Edward, Archbishop of York: Michaelmas term, 1539: Court of Common Pleas

These four cases of quare impedit are in two pairs and must be taken together, since the real issue was not between the plaintiffs and the defendants but rather between the plaintiffs. Most of the pleadings in the four actions is identical, including the pleading of a common recovery by a group of feoffees to sues to hold to the use of William Ingylby in fee. All the cases likewise agree that Ingylby then made his will with directions to the feoffees and died before the Statute of Uses. Constable and Swale, plaintiffs in one pair of actions, maintained that the will directed the feoffees to hold to Ingylby’s use for his life, then to the use of three people (two of whom were among the feoffees) until they levied £1,000 from the profits of the land. William Ingylby the son was the plaintiff in the other two actions and omitted the money levy provision of the will, but asserted a provision that the feoffees were to hold to the use of the William Ingylby the testator in fee tail. Both sets of cases apply the Statute of Uses; for the plaintiffs Constable and Swale, the Statute of Uses purportedly put them into possession of the lands and thus into possession of the right of advowson until they collected the specified money. If one puts the two accounts of the will provision together, the will might have directed the feoffees to hold to the settlor/testator in fee tail, but after his death to hold to the use of Constable, Swale, and Wylkys until they levied the money, so that the descent of the fee tail would be interrupted for the specified accumulation of assets. Such an arrangement should have been possible before the chancellor’s court of conscience, but would have been impossible at common law. The disagreement between those supposed to accumulate the money and the heir to the fee tail centered on the right of advowson. Both sides to the dispute thus brought their own quare impedit action against the Archbishop of York and George Williamson. The suits were somewhat collusive, not only because the Archbishop and Williamson were not actually impeding the presentment, but also because the same attorney was functioning for the plaintiffs in all four cases: the litigation was arranged to put the problem before the court even though not in a single case between the actually relevant parties. Both the cases against the Archbishop resulted in a writ to him to accept the presentation, but the presentation of both different plaintiffs, the contradictory executions of which were stayed until the cases against Williamson were determined. The cases against Williamson were in fact discontinued, so it seems that as soon as the proper legal resolution of the real issue between the actual parties became clear, everything was dropped. It is likely that the resolution was in favor of the heir to the fee tail.

[IMG 0763] York City. Edward, Archbishop of York was summoned to answer John Constable, armiger, and John Swale, gentleman, concerning a plea that he together with George Williamson, cleric, permit them to present a suitable parson to the church of Hooton Wandesley otherwise Merston that is vacant and looks to their donation etc. And wherefore the same John and John by James Foxe their attorney say that a certain William Ingylbye armiger was seised of the manor of Hooton Wandesley with appurtenances in the abovesaid county to which the advowson of the abovesaid church pertains in his demesne as of fee; and thus being seised thereof he presented to the abovesaid vacant church a certain Leonard Constable his cleric, who at the presentation of the same William Ingelbye was admitted and instituted in the same in time of peace in the time of the now lord king; and afterwards the abovesaid William Ingylbye being seised thus of the abovesaid manor with appurtenances to which etc., he enfeoffed of the same manor with appurtenances to which etc., a certain John Nevyll knight to have to him and his heirs in perpetuity to fulfill thereof the last will of the same William Ingylbye; by virtue of which feoffment the same John Nevyll was thereof seised in his demesne as of fee to the same use; and that John Nevyll thus being seised a certain Thomas Thomas Barkeley armiger son and heir apparent of Thomas Barkeley of Barkeley knight, John Constable armiger, Robert Constable armiger, William Babthorp armiger, Nicholas Rudston armiger, Thomas Maleberye armiger, Thomas Sclyngesbye armiger, and John Swale gentleman on October 3 in the 18^th year of the reign of the now lord king out of the court of Chancery of the said now lord king then being at Westminster in the county of Middlesex purchased the same lord king’s certain writ of entry sur disseisin in the post concerning the abovesaid manor with appurtenances to which etc., among other things directed against the aforementioned John Nevyll then sheriff of the abovesaid county of the city of York, by which writ it was ordered to the same then sheriff that he should order the aforementioned John Nevyll that justly and without delay he should render to the aforementioned Thomas Barkeley, John Constable, Robert Constable, William, Nicholas, Thomas Malynerey, Thomas Slyngesby, and John Swale [the names vary slightly] the abovesaid manor with appurtenances to which etc., among other things etc., that they claim is their right and inheritance and in which the same John Nevyll did not have entry unless after a disseisin that Henry Hunt thereof unjustly and without judgment did to the aforementioned Thomas Barkeley, John Constable, Robert Constable, William, Nicholas, Thomas Malynerey, Thomas Slyngesby, and John Swale after the first crossing of the lord King Henry son of King John into Gascony as they said, and wherefore they complained that the abovesaid John Nevyll deforces them; and unless he does it and the abovesaid Thomas Barkeley, John Constable, Robert Constable, William, Nicholas, Thomas Malynerey, Thomas Slyngesby, and John Swale make the same then sheriff secure of prosecuting his claim, then the same sheriff should summon by good summoners the abovesaid John Nevyll that he be before the justices of the said lord king at Westminster [blank] then next following to show why he does not, and that the same then sheriff should have here the summoners and that writ. At which day before Robert Brudenell knight and his companions then justices of the same lord king of the Bench here, scilt., at Westminster abovesaid, came both the abovesaid Thomas Barkeley by William Nevell who was then admitted by the court of the said lord king here to prosecute for him as next friend of the same Thomas, and the abovesaid John Constable, Robert Constable, William Babthorp, Nicholas Rudston, Thomas Malyverey, Thomas Slyngesby, and John Swale by James Fox their attorney as well as the abovesaid John Nevell in his proper person, and the sheriff of the abovesaid city of York, viz., [IMG 0764] [erased blank] then sent that writ to them in the abovesaid form served and executed in all matters, viz., that the abovesaid Thomas, John Constable, Robert Constable, William Nicholas, Thomas Malyverey, Thomas Slyngesby, and John Swale had found for the same sheriff pledges to prosecute that writ, viz., [blank] and that the abovesaid John Nevell was summoned by [blank]; whereon the abovesaid Thomas Barkeley, John Constable, Robert Constable, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby and John Swale sought against the aforementioned John Nevell the abovesaid manor of Hooton Wandesley with appurtenances among other things as their right and inheritance and in which the same John Nevell did not have entry unless after a disseisin that Henry Hunt thereof unjustly and without judgment made to the aforementioned Thomas Barkeley, John Constable, Robert, William, Nicholas, Thomas, Thomas, and John Swale after the first etc. And wherefore they said that they themselves were seised of the abovesaid manor with appurtenances among other things in their demesne as of fee and right in time of peace in the time of the now lord king by taking thereof esplees to the value etc., and in which etc., and thereof they produced suit etc. And the abovesaid John Nevell defended their right when etc., and vouched thereof to warranty the aforementioned William Ingylbye armiger who then was present here in court in his proper person and freely warranted the abovesaid manor with appurtenances among other things to him etc. And thereon the abovesaid Thomas, John Constable, Robert, William Babthorp, Nicholas, Thomas, Thomas, and John Swale sought against the same William Ingylbye tenant by his warranty the abovesaid manor with appurtenances among other things in the abovesaid form etc. And wherefore they said that they were seised of the abovesaid manor with appurtenances among other things in their demesne as of fee and right in time of peace in the time of the now lord king by taking thereof esplees to the value etc., and in which etc. And thereof they produced suit etc. And the abovesaid William Ingylbye tenant by his warranty defended their right when etc., and further vouched to warranty thereof Thomas Fysher, who was then present here in court in his proper person and freely warranted the abovesaid manor with appurtenances among other things to him etc. And thereon the abovesaid Thomas Barkeley son of John Constable, Robert, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby and John Swale sought against that Thomas Fysher tenant by his warranty the abovesaid manor with appurtenances in the abovesaid form etc., and whereof they said that they themselves were seised of the abovesaid manor with appurtenances among other things in their demesne as of fee and right in time of peace in time of the now lord king by taking thereof esplees to the value etc., and in which etc., and thereof they produced suit etc. And the abovesaid Thomas Fysher tenant by his warranty defended their right when etc., and said that the abovesaid Henry Hunt did not disseise the aforementioned Thomas Barkeley, John Constable, Robert, William [IMG 1405] Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby, and John Swale of the abovesaid manor with appurtenances among other things as they by their writ and narration abovesaid supposed, and of this he put himself on the countryside etc. And the abovesaid Thomas Barkeley, John Constable, Robert, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby, and John Swale sought license thereof to emparl, and they had it. And afterwards the same Thomas, John, Robert, William, Nicholas, Thomas, Thomas, and John came back here in court in that same term, viz., the abovesaid Thomas Barkeley son by the aforementioned William Nevell who etc., and the abovesaid John Constable, Robert, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby, and John Swale by their abovesaid attorney, and the abovesaid Thomas Fysher although solemnly exacted did not come back but withdrew in contempt of court and defaulted; whereby it was considered that the abovesaid Thomas Barkeley son, John Constable, Robert, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby, and John Swale recover their seisin against the aforementioned John Nevyll of the abovesaid manor with appurtenances among other things, and that the same John Nevell have from the land of the abovesaid Thomas Fysher to the value etc., and that the same Thomas be in mercy etc.; which certain recovery of the abovesaid manor with appurtenances among other things was to the use of the abovesaid William Ingylbye and his heirs; whereby the abovesaid Thomas Barkeley, John Constable, Robert Constable, William Babthorp, Nicholas Rudston, Thomas Malyverey, Thomas Slyngesby, and John Swale entered into the abovesaid manor of Hooton Wandesley with appurtenances to which etc., and were thereof seised in their demesne as of fee to the use of the abovesaid William Ingylbye and his heirs; and further the abovesaid John Constable and John Swale now plaintiffs say that the abovesaid Thomas Barkeley, John Constable, Robert Constable, William Babthorp, Nicholas Rudston, Thomas Malyverey, Thomas Slyngesbye, and John Swale were seised of the manors of Long Merston, Angram, and Colton with appurtenances and 100 messuages, 50 cottages, 20 burgages, 1 windmill, 500 acres of land, 100 acres of meadow, 500 acres of pasture, 200 acres of woods, and 100s of rent with appurtenances in Hooton Wandesley, Long Merston, Angram, Colton, Worn, Hessey, Askham-Bryan, Nunne Applewun, Middelthorp, and Aycester Malbis in the abovesaid county of the city of York as well as of and in the manors of Ripley, Broxholme, East Harlsey, Rawcliff, Barton, Manfeld, Aismunderby, Stockton on the More, Yarm, and West Harlsey with appurtenances, 300 messuages, 300 cottages, 2 watermills, 1 windmill, 2,000 acres of land, 400 acres of meadow, 2,000 acres of pasture, 500 acres of meadow, 2,000 acres of more, and £20 of rent with appurtenances in Ripley, Broxholme, East Harlsey, Raucliff, Barton, Manfeld, Aismunderby, Stockton on the More, North Stainley, West Harlsey, Skelton, Kirklington, Newton Morrell, Towthorpe, Exelby, Clifton, Maunby on Swale, Kirkby Wisk, Swinton, Scotton by Richmond, Byrthwayte, Scawrey, Hubyland, Conistone in Craven, Hawkeswyke in Craven, Ripon, Kirkby Malzeard, Larkton, Theakstone in Yorkshire in their demesne as of fee to the use of the abovesaid William Ingylby father and his heirs; and the same Thomas Barkeley, John Constable, Robert Constable, William Babthorp, Nicholas Rudston, Thomas Malyverey, Thomas Slyngesby, and John Swale thus being seised both of the abovesaid manor of Hooton Wandesley with appurtenances to which etc., and of the abovesaid other manors, lands, tenements, and other premisses to the use of the abovesaid William Ingylbye and his heirs, the abovesaid William Ingylbye on August 1 in the 19^th year of the reign of the now lord king [August 1, 1527] at Ripley in Yorkshire by his last will willed and declared that the abovesaid Thomas Barkeley, John Constable, Robert, William Babthorp, Nicholas Rudston, Thomas Malyverey, Thomas Slyngesbye, and John Swale, his heirs and assigns should stand and be seised of all the abovesaid manors, lands, tenements, and other premisses with their appurtenances to the use of the abovesaid William Ingylbye for term of his life and after the death of the same William to the use and intention that the abovesaid John Constable and John Swale now plaintiffs and a certain John Wylkys chaplain immediately after the death of the abovesaid William Ingylbye should receive, levy, and take all the farms, issues, and profits arising and growing from all the abovesaid manors, lands, tenements, and other premisses until the sum of £1,000 should be received, levied, and taken; and afterwards the abovesaid William Ingylbye, [IMG 1406] scilt., on July 12 in the 20^th year of the reign of the now lord king [July 12, 1528] at Ripley abovesaid died; after whose death the abovesaid Thomas Barkeley, John Constable, Robert Constable, William Babthorp, Nicholas Rudston, Thomas Malyverey, Thomas Slyngesbye, and John Swale were seised of the abovesaid manor of Hooton Wandesley and the other premisses with appurtenances in their demesne as of fee to the use of the abovesaid John Constable, John Swale, and John Wylkes until the abovesaid sum of £1,000 would be received, levied, and taken from the farms, profits, and issues thereof, until February 4 in the 27^th year of the reign of the now lord king [February 4, 1536], on which day the same John Constable and John Swale by virtue of the Statute of Uses promulgated in the Parliament of the said lord king held at Westminster in the county of Middlesex then were possessed both of the abovesaid manor of Hooton Wandesley with appurtenances and of the other premisses with appurtenances; and the same John Constable and John Swale thus being possessed both of the abovesaid manor of Hooton Wandesley with appurtenances and of the other premisses with appurtenances [IMG 0765] the abovesaid church became vacant by the free resignation of the abovesaid Leonard Constable and is still vacant; and by that reason it pertains to the same John Constable and John Swale to present to the abovesaid church at present; and the abovesaid Archbishop together etc., unjustly impedes; and further the same John Constable and John Swale say that the abovesaid sum of £1,000 from the time of the death of the abovesaid William Ingylby armiger until now has not yet been received, levied, or taken nor could be received, levied, or taken from the farms, issues, and profits of the abovesaid manor of Hooton Wandesley and other premisses with appurtenances,wherefore they say that they are worse off and have damages to the value of 500 marks, and thereof they produce suit etc.

         And the abovesaid Archbishop by Ralf Caldwall his attorney comes and defends force and injury when etc., and says that he has nothing nor claims to have anything in the abovesaid church nor in the advowson of the same except the admission, institution, and removal of parsons of that church and other things that pertain to the Ordinary as Ordinary of the same church, and this he is ready to verify, wherefore he seeks judgment if the abovesaid John Constable and John Swale without special impediment to be assigned in the person of the same Archbishop in this part ought to have their action abovesaid against him etc.

         And the abovesaid John Constable and John Swale, since the abovesaid Archbishop claims nothing in the abovesaid church nor in the advowson of the same except admission, institution, and removal of parsons of that church and other things that pertain to the Ordinary as Ordinary of that church, seek judgment and a writ to the same Archbishop. Therefore it is considered that the abovesaid John Constable and John Swale recover against the aforementioned Archbishop his presentation to the abovesaid church and that they have a writ to the same Archbishop that notwithstanding the counterclaim of the same Archbishop to the abovesaid church he should admit a suitable parson to that church at the presentation of the abovesaid John Constable and John Swale etc. And nothing of amercement of the abovesaid Archbishop because he excuses himself of impeding etc., but stay the execution thereof until the abovesaid plea between the aforementioned John Constable and John Swale and the aforementioned George Williamson be terminated etc.

[IMG 0770] York City. Edward, Archbishop of York was summoned to answer William Ingylby concerning a plea that he together with George Williamson cleric permit him to present a suitable parson to the church of Hooton Wandesley alias Merston that is vacant and looks to his donation etc. And wherefore the same William by James Fox his attorney says that a certain William Ingylbye of Ripley armiger father of the abovesaid William Ingylby now plaintiff whose heir he is was seised of the manor of Hooton Wandesley with appurtenances in the abovesaid county to which the donation of the abovesaid church pertains in his demesne as of fee; and thus seised thereof he presented to the same vacant church a certain Leonard Constable his cleric who was admitted and instituted at his presentation in the same time of peace in the time of the now lord king; and afterwards the abovesaid William Ingylbye father thus being seised of the abovesaid manor with appurtenances enfeoffed of that manor with appurtenances a certain John Nevyll knight to have to him and his heirs in perpetuity to fulfill thereof the last will of the abovesaid William father; by virtue of which feoffment the same John Nevyll was thereof seised in his demesne as of fee to the same use; and the same John Nevyll thus being seised of the same manor with appurtenances, a certain Thomas Barkeley armiger son and heir apparent of Thomas Barkeley of Barkeley knight, John Constable armiger, Robert Constable armiger, William Babthorp armiger, Nicholas Rudston armiger, Thomas Malyverey armiger, Thomas Slyngesby armiger, and John Swale gentleman [proceeds through the same common recovery as in the prior case through this membrane and IMG 0771] [IMG 1411]; which certain recovery of the abovesaid manor with appurtenances to which etc. among other things was to the use of the abovesaid William Ingylby and his heirs; by pretext of which certain recovery the abovesaid Thomas Barkeley, John Contable, Robert Constable, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby, and John Swale entered into the abovesaid manor of Hooton Wandesley with appurtenances to which etc., and were thereof seised in their demesne as of fee to the use of the abovesaid William Ingylby father and his heirs; and the same Thomas Barkeley, John Constable, Robert, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby and John Swale being thus seised of the same manor with appurtenances to which etc., to the use of the abovesaid William Ingylby father and his heirs, the same William Ingylby father on August 1 in the 19^th year of the reign of the now lord king [August 1, 1527] at Ripley in the abovesaid county of York by his last will willed and declared that the abovesaid Thomas Barkeley, John Constable, Robert, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby, and John Swale, their heirs and assigns should stand and be seised of all the abovesaid manors, lands, tenements and other premisses with appurtenances to the use of the same William Ingylby father for the term of his life and after the death of the same William Ingylby father to the use of the abovesaid Wiliam Ingylby son now plaintiff and the heirs of the body of the same William son legitimately procreated; and afterwards the same Thomas Barkeley, John Constable, Robert, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby, and John Swale being seised of the abovesaid manor with appurtenances to which etc., the abovesaid William Ingylbye father died; after whose death the abovesaid Thomas Barkeley, John Constable, Robert, William Babthorp, Nicholas, Thomas Malyverey, Thomas Slyngesby, and John Swale were seised of the abovesaid manor of Hooton Wandesley with appurtenances to which etc., in their demesne as of fee to the use of the abovesaid William Ingylby son and heir of the body of the same William legitimately procreated until February 4 in the 27^th year of the reign of the now lord king, at which day the same William Ingylby son by pretext of a certain act promulgated in the Parliament of the now lord king held at Westminster in the county of Middlesex then was seised of the abovesaid manor of Hooton Wandesley with apppurtenances to which etc., in his demesne as of fee tail according to the form and effect of the last will abovesaid; and the same William Ingylby son thus being seised of the same manor with appurtenances to which etc., the abovesaid church became vacant by the death of the abovesaid Leonard Constable and still is vacant, and by that reason it pertains at present to the same William Ingylby now plaintiff to present to the abovesaid church; and the abovesaid Archbishop together with etc., unjustly impedes him, wherefore he says that he is worse off and has damages to the value of £500, and thereof he produces suit etc.

         And the abovesaid Archbishop by Ralf Caldwall his attorney comes and defends force and injury when etc., and says that he has nothing nor claims to have anything in the abovesaid church nor in the advowson of the same except admission, institution, and removal of the parsons of that church and the other things that pertain to the Ordinary as the Ordinary of the same church. And this he is ready to verify, wherefore he seeks judgment if the abovesaid William Ingilby now plaintiff without assigning special impediment in the person of the same archbishop in this part ought to have his abovesaid action against him etc.

         [IMG 1412] And the abovesaid William Ingylby now plaintiff, since the abovesaid Archbishop claims nothing in the abovesaid church nor in the advowson of the same except the admission, institution, and removal of parsons of that church and the other things that pertain to the Ordinary as the Ordinary of the same church seeks judgment and a writ to the same Archbishop. Therefore it is considered that the abovesaid William Ingylby now plaintiff recover against the aforementioned Archbishop his presentation to the abovesaid church and that he have a writ to the same Archbishop that notwithstanding the counterclaim of the abovesaid Archbishop to the abovesaid church that he admit to that church a suitable parson at the presentation of the abovesaid William Ingylby now plaintiff etc. And nothing of amercement of the abovesaid Archbishop because he excuses himself of impeding etc. But stay thereof execution until the abovesaid plea between the aforementioned William Ingylby now plaintiff and the aforementioned George be terminated etc.

The companion cases against George Williamson appeared in CP40/1104, Hilary term, 1540:

John Constable armiger & John Swale gentleman v. George Williamson cleric:

2715, 2716, 3715, 3716, 2717

William Ingylby armiger v. George Williamson:

Both of these enrollments ended in a license to emparl plus a notation in the margin that in neither case was there any continuation given beyond the following term.