327 James v Counsell

327 JAMES V COUNSELL

Francis James of Barrow Gurney, co. Somerset, gent v John Counsell the elder of the same

November 1637 - February 1639

Abstract

On 28 November 1637 Dr Duck gave the libel on behalf of James, but the document does not survive, nor does the nature of his complaint. John Counsell the elder approached Sir Richard Wiseman to arbitrate, but, in return for his assistance, Sir Richard demanded Counsell lend him £100 and sell some of his lands to Sir Francis Dodington, J.P. and former sheriff of Somerset. Counsell maintained that Wiseman had threatened to blackmail him, saying that if he refused he would testify in support of the libel and help James prosecute Counsell in Star Chamber for damages of £500. The witnesses for James were ordered to be examined by a commission headed by Bartholomew Gifford, gent, 11-13 January 1638 at the Roebuck Inn, Bedminster, Somerset. Sir Richard Wiseman and Edward Wiseman appeared among the witnesses for James in January and February 1638. Counsell's witnesses were to be examined before a commission 13-15 September 1638 in the Pelican Inn, St Thomas's parish, Bristol. Exhibits for the defence were admitted in November and in February 1639 the court moved towards sentence; but the surviving document is so damaged that the result of the case is uncertain.

Defendant's case

Acta (5), fo. 278, Defence

1. Sir Francis Dodington and Sir Richard Wiseman, witnesses examined on behalf of James, were intimate friends of James, and enemies of Counsell, and thus partial witnesses.

2. 'Before the production of Sir Richard Wiseman in this cause Francis James having a suite against William Counsell the elder and William Counsell the younger' of Barrow Gurney, co. Somerset, one of the Counsells asked Sir Richard Wiseman 'to compose or make amend of the suite' which he agreed to attempt if 'William Counsell the elder would sell to Sir Francis Dodington two pieces of ground for a reasonable sume of money and also would lend to Sir Richard Wiseman an hundred poundes'. The Counsells agreed to do so if Sir Richard 'would conclude an greement and peace between Francis James and John Counsell the elder.'

3. 'After the premises William Counsell the elder did by writing under his hand and seale conveighe his right and title in the groundes to Sir Francis Dodington, and John Counsell the elder did lend to Sir Richard Wiseman 100^liand the 100^li was sent to Sir Richard at two severall times by John Counsell the elder, and was delivered to Sir Richard by William Counsell the younger; and Sir Richard upon receipt promised that or to this effect, vizt. That he would make peace for John Counsell the elder defendant in this suite and make an agreement between Francis James and the defendant for all matters in difference betweene them; or if not he would redeliver up the 100^li and the said writing againe.'

4. 'After the premises in the 2 next precedent articles Sir Richard said to John Counsell the younger thus or the like in effect, vizt. Your father must doe as your unckle did, meaninge that he must have another 100^li of the defendant and that the defendant must likewise sell some parte of his meanes to Sir Francis Dodington; and then Sir Richard will end this suite betweene Francis James and John Counsell the elder... if not then Sir Francis Dodington Sir Richard must depose the wordes of the libell (meaning the libell in the cause given) and then it will cost you (meaning the defendant) noelesse then 500^li.'

5. 'Sir Richard Wiseman at the time in the next precedent article menconed, and since, sayd to John Counsell the elder and John Counsell the younger, or one of us, that if Mr James, meaning Francis James, would be ruled by him, he should; or Sir Richard Wiseman would call John Counsell the elder and John Counsell the younger into the Star Chamber and soe curbe them well enough, or Sir Richard have said and spoken the like wordes in effect.'

6. 'Sir Richard Wiseman being examined upon his oath upon all and singular the premises in the fower next precedent artickles conteyned by interrogatories given in [on the part of the defendant] in this cause hath denied all the said premises, or the most parte, or some parte of them to be true.'

Signed by Thomas Eden.

Dated [overleaf] 9 May 1638.

R.19, fo. 11v, Exceptions to the plaintiff's witnesses

'John Counsell, lawful sonne of Jo. Counsell the elder, defendant to the libel of Francis James, as well jointly as in his owne right, by way of exception and c, sayes that Sir Francis Dodington and Sir Richard Wiseman knights', witnesses for James 'and repugnant in their depositions', were 'intimate friends of James and enemies to Counsell, and are partiall and c'. His father Jo. Counsell the elder did lend Sir Rich Wiseman 100 li that he carried the money, and upon receipt he undertook and promised that he would make peace between James and the defendant; and that after Sir Richard Wiseman said to John Counsell the younger, your father must doe as your uncle did, meaning he must have another 100 li of the defendant and that he must likewise sell some part of his meanes to Sir Francis Dodington; and then Sir Richard said that he would end the suite between James and Counsell the elder and c. All which in the name of his father, John Counsell the elder jointly and c, he prayes and c.'

1638

No signature.

Acta (5), fo. 282, Letters commissory for the defendant

Addressed to commissioners ____ [name faded], gent, Thomas Blount, gent, John Price, gent, William Tynt, gent, and also John Dowle, esq, Bartholomew Gifford, gent, William Nevill, esq and Richard Morgan, esq, to meet from 13 to 15 September 1638 in the Pelican Inn, St Thomas's parish, Bristol.

Gilbert Dethick assigned as notary public.

Dated 2 June 1638

Signed by Gilbert Dethick and John Watson.

Acta (5), fo. 278b, Letters substitutional

Latin note in which Dr Duck authorized Andrew Ball, gent and Miles Lavington to act in his place, in representing the plaintiff, Francis James, gent.

Dated 23 August 1638.

Signed by Arthur Duck.

Acta (5), fo. 280, Second set of plaintiff's interrogatories

1. Are 'you not a sonne to the defendant in this case and therefore favor and leane more to the one or the other'? 'Doe you not hope to gaine by the defendant for your testimonie in this case; or else doe you not, by way of vindication of your father's supposed vexacon, beare malice or hatred to Mr James'?

2. 'Have you not by way of solicitation taken much paines in the defence of this suite; and have you not served divers or any process or monicons against Mr James; and have you not talked and tampered with divers or any of the witnesses produced' for John Counsell 'and have served them or any of them with process to appeare at the expedicon of this commission'?

3. Had not 'Sir Francis Doddington knt nominated in the defence of [James] High Sheriff of the county of Somerset and in his sheriefaltie behaved himselfe honestlie and worthily'? 'Sett downe your reason of everie particular of this Article.'

No date.

No signatures.

Sentence / Arbitration

10/12/7, Plaintiff sentence [badly damaged]

The names Francis Grove and William Locke are added as superscript inserts over the names of James and Counsell.

No date or details survive on document, over half of which has been eaten away.

15/2u, Defendant's bill of costs

Michaelmas term, 1637: £6-0s-10d

Hillary term, 1637: £19-14s-8d

Total: £25-15s-6d

Signed by Thomas Eden.

Taxed at £6-13s-4d

Signed by Maltravers

Dated 14 Apr 1638

Summary of proceedings

Dr Duck acted as counsel for James and Dr Eden for Counsell. On 28 November 1637 Dr Duck gave the libel on behalf of James. On 2 December 1637 the commissioners were nominated to take depositions on behalf of James. They were Bartholomew Gifford, gent, William Coward, gent, and also, Nathaniel Holbatche of Whitchurch, gent, and William Yeomans of Bristol. They were to meet in the inn of Thomas Webb called the Roebuck in Bedminster, co. Somerset from 11 to 13 January 1638. On 27 January 1638 Dr Duck produced the witness Edward Wiseman in support of the libel. On 12 February 1638 Sir Richard Wiseman was examined as a witness and the testimonies for James were published. On 20 October 1638 Dr Eden alleged that Robert Coxe was a necessary witness for the defence, and exhibits for the defence were admitted in November. In February 1639 the court moved towards sentence.

Notes

Francis James was the son of Francis James of Tickenham, co. Somerset, esq, M.P. for Wareham (1604-11), and Blanch, daughter of Francis Gunter of the city of London. Francis married Elizabeth, daughter of Francis Browne of co. Gloucester.

A William Counsell the elder and William Counsell the younger (c.1615-1671) were mentioned in the 1672 Visitation as of East Stoughton in Wedmore, co. Somerset.

G. D. Squibb (ed.), The Visitation of Somerset and the City of Bristol, 1672 (Publications of the Harleian Society, new series, 11, 1992), pp. 31, 200.

In October 1640 John Counsell of Barrow Gurney, co. Somerset, 'publicly laughed' at the minister who had admonished him 'for not kneeling in the church there on both his knees'.

Somerset Record Office, D/D/Ca333, nf: cited in D. Cressy, England on Edge: Crisis and Revolution, 1640-1642 (Oxford University Press, 2006), p. 154.

Documents

• Defendant's case
  • Defence: Acta (5), fo. 278 (9 May 1638)
  • Exceptions to the plaintiff's witnesses: R.19, fo. 11v (1638)
  • Letters commissory for the defence: Acta (5), fo. 282 (2 Jun 1638)
  • Letters substitutional: Acta (5), fo. 278a (23 Aug 1638)
  • Second set of plaintiff interrogatories: Acta (5), fo. 280 (no date)
• Sentence / Arbitration
  • Plaintiff's sentence: 10/12/7 (no date)
  • Defendant's bill of costs: 15/2u (14 Apr 1638)
• Proceedings
  • Proceedings before Maltravers: 8/30 (28 Nov 1637)
  • Proceedings: 8/30 (2 Dec 1637)
  • Proceedings before Maltravers: 1/5, fos. 1-15 (27 Jan 1638)
  • Proceedings before Arundel: 1/5, fos. 23-35 (3 Feb 1638)
  • Proceedings before Arundel: 1/5, fos. 38-56 (12 Feb 1638)
  • Proceedings before Arundel: R.19, fos. 434r-449v (20 Oct 1638)
  • Proceedings before Maltravers: R.19, fos. 454r-468v (6 Nov 1638)
  • Proceedings before Maltravers: R.19, fos. 400v-412v (20 Nov 1638)
  • Proceedings before Marten: R.19, fos. 413v-416v (27 Nov 1638)
  • Proceedings before Maltravers:R.19, fos. 474r-484v (5 Dec 1638)
  • Proceedings before Maltravers: 1/9 (28 Jan 1639)
  • Proceedings: 1/7, fos. 36-47 (9 Feb 1639)
  • Proceedings before Arundel: 1/6, fos. 20-33 (21 Feb 1639)
  • Proceedings before Arundel: 1/6, fos. 1-9 (23 Feb 1639)

People mentioned in the case

• Ball, Andrew, gent
• Blount, Thomas, gent
• Browne, Elizabeth
• Browne, Francis
• Counsell, John the elder
• Counsell, John the younger
• Counsell, William the elder
• Counsell, William the younger
• Coward, William, gent
• Coxe, Robert
• Dethick, Gilbert, registrar
• Dodington, Francis, knight
• Dowle, John, esq
• Duck, Arthur, lawyer
• Eden, Thomas, lawyer
• Gifford, Bartholomew, gent
• Gunter, Blanch
• Gunter, Francis
• Holbatche, Nathaniel, gent
• Howard, Henry, baron Maltravers
• Howard, Thomas, earl of Arundel and Surrey
• James, Blanch
• James, Elizabeth
• James, Francis, esq
• James, Francis, gent
• Lavington, Miles
• Marten, Henry, knight
• Morgan, Richard, esq
• Nevill, William, esq
• Price, John, gent
• Tynt, William, gent
• Watson, John
• Webb, Thomas, innkeeper
• Wiseman, Edward, gent
• Wiseman, Richard, knight
• Yeomans, William

Places mentioned in the case

• Bristol
  • St Thomas's
• Somerset
  • Tickenham
  • Barrow Gurney
  • Bedminster
  • East Stoughton in Wedmore
  • Whitchurch

Topics of the case

• arbitration
• high sheriff
• office-holding
• other courts
• Star Chamber