539 Powis v Vaughan

539 POWIS V VAUGHAN

William Herbert, Baron Powis on the behalf of Herbert Vaughan, a minor v Edward Vaughan of the Inner Temple

November 1638 - April 1639

Abstract

Lord Powis complained on behalf of his grandson, Herbert Vaughan, a minor, that Edward Vaughan had published around London and Westminster since 1627, and in 1628 in a plea in the Court of Wards, that Herbert Vaughan was not the son of Sir Robert Vaughan and his wife, Dame Katherine, but the bastard of Helen Gilbert. Edward Vaughan was the third brother of the deceased Sir Robert and the quarrel with Lord Powis had arisen over the inheritance of Sir Robert's estates worth £2500 a year, which Powis hoped to preserve for his grandson.

On 28 November 1638 Dr Duck presented the libel and Vaughan was bound for £500. On 5 December 1638 Dr Merrick responded to the libel on Vaughan's behalf with a plea that under the Statute of Limitation of 1624 the time for Powis to bring his suit had elapsed, and that Powis was disabled from acting because he was not mentioned in the libel. According to a newsletter report of 5 March 1639, the matter was referred to the two chief justices, the Lord Privy Seal and Sir Henry Marten, sitting in the council chamber. The judges and the Lord Privy Seal accepted that under the statute the court could not take account of any words spoken more than twelve months prior to the action. Marten's view was that under civil law this period extended to two years. However, the Earl Marshal accepted the plea made by Powis's counsel that the Court of Chivalry had 'never bine stricktly tyed in matters of honour either to the common, or the civill lawe, but arbitrary' and the case went ahead. On 21 February 1639 a commission was appointed, and on 18 March Dr Duck produced Richard Williams and William Wyn as witnesses in support of the libel. This was a case in which it was generally felt that right was on the side of the plaintiff; but no indication of sentence survives.

Initial proceedings

R.19, fo. 5r, Summary of libel

'Herbert Vaughan is the sonne and heir of Sir Robert Vaughan of Llwydarth in com. Montgomery, knt, deceased lawfully begotten, and he is a minor under age. Edward Vaughan in the yeares 1627, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 and 38, within the cittyes of London and Westminster and other places, before many persons, did write say and publish that Herbert Vaughan was not, nor is not, the sonne of Sir Robert Vaughan and Dame Katherine his wife. And in the year 1628 [sic] Edward Vaughan did by a plea and answer in writing exhibited into the Court of Wards and Liveryes assert and publish that Herbert Vaughan was not the sonne of Sir Robert Vaughan and Katherine his wife; and that Sir Robert had noe sonne, thereby to provoke and c.'

1639 [first presented 28 November 1638].

No signature.

18/2o, Plea and demurrer [damaged]

'The defendant by protestation, not acknowledging any of the matters in the said libell contained to be true, in manner as therein is alleged, for and by way of plea thereunto he sayth that by a statute or Acte of Parliament', of 21 James I, entitled 'an Act for Limitation of Actions and for avoiding Suits in Law, it is amongst other things enacted that all actions of trespass... for taking away of goods, and cattell and actions of accompt, and upon the case, other the suits or accompts as concern the trades, merchandize between merchant, and merchants, their servants or factors, all actions of debt granted upon any lending or contract, without specially all actions of debt for arrears of rent, and all actions of assault, menace, batterie, wounding or imprisonment, or any of them which shall be sued or brought at any time after the end of the present session of parliament, should be commenced and within the time and limitation thereafter expressed, and not after: that is to saye, the actions upon the case (other then for slander) and the actions for accompt and the actions for... and the actions of trespasse, assault, battery, wounding, imprisonment or any of them within one year next after the end of that present session of parliament or within the... actions or suite and not after. And the actions upon the case for words within one year after the end of that present session of parliament or within two years next after the words were spoken and not after... said act appeareth. And he doth aver that the matters mentioned in the libel which the plaintiff layeth downe as offences punishable in this honourable court and for which...in the nature of some of the actions menconed in the statute or Act of Parliament, and the time thereby limited for the suing thereof, is long since elapsed and run out before any libel or other suite commenced... defendant concerning the same (as by the plaintiff's laying downe of the time the case in his libel may appear) and therefore he demandeth the judgement of this honourable court whether he shall be... any other or further answer thereunto. And for further demurrer to the libel he showeth that in case the matters complained of in the libel were true, yet might not the complainant... by the law common present the suite for himself. And he hath not by the libel any way intitled himself to sue for Herbert Vaughan the grandchild therein named who is the only... named thereby and if the matter so complained of in the libel were offences, or might be so reputed to be in another, yet he conceiveth they were not any offence in him for there... to be found after the death of Sir Robert Vaughan, knight, this defendant's late brother deceased, whereby to intitle Herbert Vaughan to the lands of Sir Robert as... Sir Robert Vaughan for to make him a ward to his Majestie, of whom the lands, or some of them, were pretended to be held by knight's service in capite and so to putt by this defendant's clayme... to his brother Sir Robert Vaughan, and by conveyance from him this defendant. Thereupon, for his defence therein, and to put by Herbert Vaughan's clayme, was enforced to shew forth by way of answer to an information exhibited against him in his Majestie's Court of Wards and Lyverys for the preparing of the office (amongst other things) that the said... issue and that Herbert Vaughan was the son of one Hellen Gisbart, and not the son of Sir Robert Vaughan and Dame Katherine his wife, as by the answer... Court of Wards and Lyverys bearing date 6 May 1638, whereunto this defendant for his more certainty therein referreth himself, appeareth which matter set forth in the... as advised by his counsel to be very proper and pertinent to be put in issue in the said house; and the matter is still depending in that court, where the issue... by the plaintiff's libel that the same was maliciously inserted in the answer only the matter is thereby alleged to be false and so the same was... and thereupon, for all which causes and reasons soe before alleged, he doth upon the premises... of this honourable court demurr in lawe unto, and upon the said... of this honourable Court whether he shall be compelled to make any other or further answer thereunto, and whether he, the complainant, shall be admitted to any... of this honourable court against him this defendant thereupon and most humbly prayeth to be dismissed with his good costs and charges by him in this behalf and for this... sustayned.'

Dated 5 December 1638.

No signatures.

Plaintiff's case

14/3b, Defence interrogatories

1. Was the witness a servant, solicitor, or rewarded by Lord Powys?

2. Was the witness related to Lord Powys and to which party would he give the victory?

3. Exactly when were the 'pretended' words spoken?

4. Exactly where were the words spoken, before whom, what was said there at the time, and 'what gave occasion of speaking the words'?

5. At 'what time he had conference with the defendant last, and when was he in his company last? Who were then and there present'?

Introduced 20 April 1639.

No signatures.

Summary of proceedings

Dr Duck acted as counsel for Lord Powis and Dr Merrick for Vaughan. On 28 November 1638 Dr Duck presented the libel and Edward Vaughan was bound for £500. On 5 December 1638 Dr Merrick had to respond to the libel and Edward Vaughan had to appear in person to do likewise; Vaughan and Dr Merrick refuted the libel so Dr Duck was required to prove the libel in the first session of next term. On 21 February 1639 a commission was appointed. On 18 March 1639 Dr Duck produced Richard Williams and William Wyn as witnesses in support of the libel.

Notes

Newsletter report of the case: TNA, C115/8854, Edward Rossingham to unkown, 5 March 1639

'There hath bine some debate about an other cause, but that was private in the counsell chamber where both the chief judges, lord privy seale and Sir Henry Martyn were present. It was this: one Vaughan call'd his nephewe 12 yeares since a bastard, whome hee had, or at least would have disinherited of 2500 li. a yeare, as also a second brother and his issue, this Vaughan being but the third brother. Nowe the questions was whether the Court of Honour could take cognisance of what was spoken 12 yeares since (but when it comes to proofe, it is not doubted, but it will appeare, hee hath called his nephew bastard divers tymes since that.) Both the judges and lord privy seale were of an opinion by the statute of limitation, the Court of Honour could take cognizance of nothing spoaken above a 12 month, according to that statute. And Sir Henry Martyn was of opinion that according to the civill lawe that court could take notice of nothing done above two yeares; but the plaintives's counsell alleadgd such reasons as to keepe that cause in court, as my Lord Martiall concented, that court having never bine stricktly tyed in matters of honour either to the common, or the civill lawe, but arbitrary. The truth is Vaughan the uncle is maliciously guilty of many fowle aspertions against his nephewe, besides that by these aspertions he hath designe to deprive him of his patrimony of his birth right.'

Lord Powis entered a four page complaint against Edward Vaughan for denying Herbert Vaughan's legitimacy, claiming he was the bastard son of Helen Gilbert and affirming it in the Court of Wards in 1628.

CSP Dom. 1639-40 , p. 261.

Edward Vaughan of Llwydarth, co. Montgomery, the fourth son of Owen Vaughan, M.P. for co. Montgomery, was admitted to the Inner Temple in November 1618.

W. H. Cooke (ed.), Students admitted to the Inner Temple, 1547-1660 (London, 1877), p. 219.

Documents

• Initial proceedings
  • Summary of libel: R.19, fo. 5r (28 Nov 1638)
  • Plea and demurrer: 18/2o (5 Dec 1638)
• Plaintiff's case
  • Defence interrogatories: 14/3b (20 Apr 1639)
• Proceedings
  • Proceedings before Maltravers: R.19, fos. 422r-428r (28 Nov 1638)
  • Proceedings before Maltravers: R.19, fos. 474r-484v (5 Dec 1638)
  • Proceedings before Maltravers: 1/9 (28 Jan 1639)
  • Proceedings before Arundel: 1/6, fos. 20-33 (21 Feb 1639)
  • Proceedings before Marten: 1/6 (18 Mar 1639)

People mentioned in the case

• Duck, Arthur, lawyer
• Gilbert, Helen (also Gisbart)
• Herbert, William, baron Powis
• Howard, Henry, baron Maltravers
• Howard, Thomas, earl of Arundel and Surrey
• Marten, Henry, knight
• Merrick, William, lawyer
• Rossingham, Edward
• Stuart, James I, king
• William, Richard
• Wyn, William
• Vaughan, Edward
• Vaughan, Herbert
• Vaughan, Katherine, lady
• Vaughan, Owen
• Vaughan, Robert, knight

Places mentioned in the case

• London
  • Inner Temple
• Middlesex
  • Westminster
• Montgomeryshire
  • Llwydarth
• Wales

Topics of the case

• allegation of illegitimacy
• Court of Wards
• disputed will
• inns of court
• other courts