31 Barnes v Elkened

31 BARNES V ELKENED

Sir William Barnes of Woolwich, co. Kent, knt v John Elkened of Woolwich, co. Kent, esq

May 1637 - February 1638

Abstract

Elkened stood accused of having said in Woolwich between December 1636 and February 1637 that Barnes was 'a rascall and a base rogue and a base stinking beggerly rascall'. Elkened maintained he was an old friend and legal counsellor to Barnes, who was now 'very infirme and weake in body and memory'. He claimed that the prosecution had been organised not by Barnes, but by Thomas Dabridgecourt, Susan Carter and John Browne, the vengeful household servants of Barnes, whom Elkened had accused of fraudulently wasting Barnes's estates. During Lent in 1637, the differences between Barnes and Elkened were reconciled by Sir Francis Leigh and Sir Henry Manwaring. Nevertheless, the prosecution continued, although Elkened alleged it did so without Sir William's knowledge or consent. Further proceedings survive into February 1638 but there is no indication of sentence.

Initial proceedings

12/1r, Citation

Elkened was to appear at the suit of Barnes for scandalous words provocative of a duel.

Dated 24 May 1637.

Executed by John Browne in the parish of St Gregory, London, 7 June 1637.

Introduced on 18 November 1637, by special direction Gilbert Dethick, registrar.

EM3173, Libel

In December-February last past Elkened said of Barnes in Woolwich that he was 'a rascall and a base rogue and a base stinking beggerly rascall' or to similar effect.

No date.

Signed by Thomas Exton.

Plaintiff's case

14/1v, Defence interrogatories

1. The witnesses were warned of the penalty for perjury and bearing false witness. What was the age, occupation and condition of the witness during the last seven years? How long had the witness known the parties in this cause?

2. Was he of kindred, a servant or a dependant upon Barnes?

3. What he was worth his debts paid? Was he indebted to Barnes or vice versa and how much?

4. By whose means and procurement had the witness come to depose for Barnes? Had not Thomas Dabridgecourt or Susan Carter procured him/her to do so?

5. Was the witness present at the speaking of the 'pretended words' in the libel? Where were they spoken and who was present? Was the witness present for all the time Barnes and Elkened were together, and did they hear all that passed between them?

6. Whether Elkened spoke any words against Barnes 'in an angry, chollerick and malicious manner'? Did Barnes take offence or did 'he carry himself lovingly and friendly towards Mr Elkened' and did they part on friendly terms?

7. Whether Elkened did 'admonish and advise' Barnes, as an ancient friend, 'that he should look better to the managing of his estate?' Whether Elkened said that as long as Barnes left his estate management to Dabridgecourt and Carter, 'he would always live beggarly, or would be a beggar'? Whether Elkened was 'moved with passion' against Dabridgecourt and Carter for wasting Barnes's estate, and whether he advised Barnes 'to shake them off and not to permit them to have such power'?

8. Whether, because of Elkened giving this advice, Dabridgecourt and Carter were 'much incensed in anger and malice' against him, and whether they 'were the cause of the beginning of this suite, and doe sollicite the prosecution thereof'? Whether Dabridgecourt and Carter had great power over Barnes who had 'become very infirme and weake in body and memory in so much that they may draw and persuade him to what they please, and do they not rule and govern him as they please'?

9. Whether Barnes did not 'use or utter words of provocation unto and against Mr Elkened and what words were then and there spoken by [Barnes] unto or of Mr Elkened'?

No date.

Signed by Arthur Duck.

17/3a, Letters remissional [damaged]

1. John Browne, Henry Yardley, Alexander Woodson, and Thomas Dabridgecourt were to testify as witnesses.

2. No credit was to be given to the depositions of Woodson and Yardley, because Woodson 'is a barber's boy, and no credit or estimacon, and not fit to be used as a witness in any cause, and Henry Yardley is an innkeeper's boy... verie poore, of little or no estimation'.

3. No credit was to be given to Browne's deposition either because he 'was and is a poore needie fellow, of no credit or esteeme and his whole livelihood dependeth upon the service of Sir William Barnes... and hath much wasted the estate of his master, and hath been divers times since Michaelmas last threatened by his master to be turned away from his service for deceiving of his master of money and other things and is such a one that for... respect may be drawne to depose an untruth and is soe commonlie reputed and taken.'

4. No credit was to be given to the deposition of Thomas Dabridge Court and Susan Carter because they were household servants to Barnes and relied upon him for their livelihood. They were also 'persons of verie ill life and conversation, who perceiving Sir William by reason of his sickness to be weak in his understanding and memorie, and not to look to or take care of his estate have most riotously consumed and wasted his goods and estate and sold his household stuff and good[s]... [to] their advantage ...fraudulentlie and meerlie for their own profit and gaine. They have received monies due unto him upon mortgages and otherwise, and made no account thereof unto him and when he demanded an account, they answered it was gone... and this Sir William hath often declared and professed, and it is also publique and notorious; and so they are commonly reputed and taken.'

5. Sir William Barnes and John Elkened 40, 30 or at least 20 years had been 'of verie intimate acquaintance, and very familiar friends, and Mr Eltonhead hath continuallie for the time aforesaid until within this yeare last past been imployed by Sir William Barnes in all or most of his affaires; he sued his counsel and advise in all his lawsuits in the Star Chamber and the Chancerie and other his Majestie's Courts. Sir William from time to time reposed much trust and confidence in him, and hath depended [upon] his counsel [and] employed him in the redeeming of a mortgage of his land to the value of 3000li, for which purpose Mr Eltonhead provided for him 1150li and a 100li more to supplie the occasions of Sir William Barnes. And also within these 2 years last past... he did draw and make the will of Sir William, whereof he appointed Eltonhead one of his executors, entrusting him and his coexecutor in the sale of his lands for the advancement of his children; and he always expressed much love and affection towards [him, without] dissension, or falling out between them till the time that the words in the libel are pretended to be spoken, and this is publique and notorious.'

6. 'That at the time and since that the words are pretended to be spoken', Mr Eltonhead having discovered that Dabridgecourt, Browne and Carter were wasting of Sir William's estates and defrauding him, Eltonhead, out of 'love and care of Sir William and his children', told Sir William that, by their 'cheating and cozening of him', they would make 'Sir William and his children beggars in a short time', if he did not 'turne the rogues, meaning Dabridge Court, Browne and Carter out of his doors, and that they would disgrace him by the evil practises they persuaded him unto; and he wished Sir William to consider and remember his children and to preserve his estate for them'. He advised Sir William 'in a most loving and friendly manner', who at once 'kindlie accepted of Mr Eltonhead's counsel and advise, and gave him heartie thanks for it'. Barnes then commanded Dabridgecourt and Browne out of the room, and once they were gone Barnes said to Eltonhead he 'had long wondered how his estate consumed so fast, but now saw it'. Barnes then desired a warrant to remove Dabridgecourt, Browne, and Carter out of his house 'and said he would not go home before they were gone and would not suffer Mr Eltonhead to depart from him...'.

7. After this, Barnes and Eltonhead remained together for 7 or 8 hours 'as loving friends, and there was no expression of any distaste taken by Sir William against Eltonhead but thankfulness expressed to Eltonhead by Sir William.'

8. If at the time above, Eltonhead did 'utter any such words as rogue, rascall, beggarlie fellow (which he utterly denyeth) he spake the words concerning Dabridge Court, Browne and Carter upon occasion and for the reason... deduced. And divers witnesses then present conceived the words to be spoken of Dabridge worth [sic], Browne and Carter; and Dabridge Court and Browne being then present did heare and conceive the words to be spoken of themselves and took offence... and diverse witnesses then present did not conceive that those words were spoken of, to, or concerning Sir William or that he was anywaies meant thereby, but onlie of the parties aforementioned. Nor did Sir William at that time nor for some space of time after that time conceive those words to be spoken of or against himself; and hath often said that he remembered no ill words spoken against him by Mr Eltonhead and that he loved him well.'

9. After Barnes had threatened to turn Dabridgecourt, Browne and Carter out of doors, they decided to 'worke some disaffection or distaste between Sir William and Mr Eltonhead... with many lies and falsehoods forged against Mr Eltonhead'. They persuaded Sir William that Eltonhead spoke the words not against them, but against Sir William himself.

10. Sir William was 'a man stricken in years, and a man feeble and weake in bodie and memorie, and fitt and subject to be abused and misled by such persons as Dabridge Court, Browne and Carter were and are, and hath been and is so commonly accounted, reputed and taken.'

11. During last Lent the differences between Barnes and Eltonhead were referred to Sir Francis Leigh and Sir Henry Manwaring and they reconciled them. Sir William shook Mr Eltonhead's hand and declared he 'loved him as heartily as ever he did in his life and they often meeting afterwards they carried themselves loving to each other.'

12. Dabridgecourt, Browne and Carter had instigated the cause against Eltonhead out of revenge and used Sir William's name in the suit 'without his privitie or knowledge'.

22 December 1637.

Signed by Arthur Duck.

Summary of proceedings

Dr Exton acted as counsel for Barnes and Dr Duck for Elkened. On 14 October 1637 Dr Exton asked for the case to be continued so he could prove the libel. In November 1637 the libel was published and Thomas Dabridgecourt was summoned to appear as a witness. On 3 February 1638 Dr Duck was ordered to relate the defence and the cause was still continuing on 12 February 1638.

Notes

There is no mention of Elkened or Eltonhead, but Sir William Barnes of Woolwich is mentioned in the 1619 Visitation of Kent, married to Dorothy, daughter of Peter Manwood of St Stephen's, Canterbury. Thomas Dabridgecourt may have been the Thomas D'Abridgecourt who was the son of Sir George D'Abridgecourt of Stratfield Saye, co. Hampshire, knt, and who became a royalist colonel under Prince Rupert in the civil wars.

R. Hovenden (ed.), The Visitation of Kent, 1619-21 (Publications of the Harleian Society, 42, 1898), p.144; P. R. Newman, Royalist officers in England and Wales, 1642-1660: A biographical dictionary (London, 1981), p. 98.

CSP Dom. 1637 , p.570: In April 1637 Barnes was commander of a trained band company in Woolwich.

CSP Dom. 1636 , p.280: c.1636 John Elkened was refusing to deliver possession of the Woolwich wharf house and lands attached to it to Thomas Smyth with whom he was in dispute over payments.

During the civil wars, Thomas Dabridgecourt made an infamous outburst against the Welsh to his commander, Prince Rupert:

'If your Highness shall be pleased to command me to the Turk, or Jew, or Gentile, I will go on my bare feet to serve you, but from the Welsh, good Lord deliver me; and I shall beseech you to send me no more into this country, if you intend I shall do you any service, without a strong party to compel them, not to entreat them.'

A. Hughes, 'The king, the parliament and the localities during the English civil war', Journal of British Studies , 24:2 (1985), 253.

Documents

• Initial proceedings
  • Citation: 12/1r (24 May 1637
  • Libel: EM3173 (no date)
• Plaintiff's case
  • Defence interrogatories: 14/1v (no date)
  • Letters remissional: 17/3a (22 Dec 1637)
• Proceedings
  • Proceedings before Arundel: 8/26 (14 Oct 1637)
  • Proceedings before Maltravers: 8/27 (14 Oct 1637)
  • Proceedings before Maltravers: 8/28 (31 Oct 1637)
  • Proceedings before Maltravers: 8/29 (18 Nov 1637)
  • Proceedings before Maltravers: 8/30 (28 Nov 1637)
  • Proceedings before Arundel: 1/5, fos. 23-35 (3 Feb 1638)
  • Proceedings before Arundel: 1/5, fos. 38-56 (12 Feb 1638)

People mentioned in the case

• Barnes, Dorothy
• Barnes, William, knight
• Browne, John
• Carter, Susan
• Dabridgecourt, George, knight (also Dabriscourt, D'Abridgecourt, Dabridge Court)
• Dabridgecourt, Thomas (also Dabriscourt, D'Abridgecourt, Dabridge Court)
• Dethick, Gilbert, registrar
• Duck, Arthur, lawyer
• Elkened, John, esq (also Eltonhead)
• Exton, Thomas, lawyer
• Howard, Henry, baron Maltravers
• Howard, Thomas, earl of Arundel and Surrey
• Leigh, Francis, knight
• Manwaring, Henry, knight
• Manwood, Peter
• Smyth, Thomas
• Woodson, Alexander
• Yardley, Henry

Places mentioned in the case

• Kent
  • Canterbury
  • Woolwich
• London
  • St Gregory
• Wales

Topics of the case

• Court of Chancery
• denial of gentility
• fraud
• military officer
• office-holding
• other courts
• royalist
• Star Chamber
• trained band