110 Claxton v Tunstall

110 CLAXTON V TUNSTALL

John Claxton of White Hill, co. Durham, esq v Thomas Tunstall of the city of Durham, mercer

February 1638 - February 1639

Abstract

Claxton, the eldest son of Sir John Claxton, claimed that Tunstall had written that he 'had degenerated from his gentility' in a replication exhibited in a cause between them heard at the Lord President's Court at York. Tunstall claimed he was absent in Durham at the time it was drawn up and had he known of it would have had it expunged. In October and November 1638 the court was due to hear the testimony of the prosecution witnesses, and in February 1639 proceedings were continuing; but nothing further survives. [For what appears to be a parallel suit against John Richardson, see cause 109.]

Initial proceedings

8/8, Petition and Advice of the King's Advocate

Claxton petitioned he 'is sonne and heire to Sir...Claxton kt deceased (and is a gent of auncient and generous family', that Thomas Tunstall... in a pretended suite for a pretended debt against your peticoner gave in a replication in writinge wherein hee expressed in this manner, vizt. The defendant (meaninge the petitioner), beinge heire apparent to a worthie knight his father, hee hath degenerated from his gentility and hath and doth unconscionably denie to give this defendant satisfaction), whereby your petitioner is much disgraced'.

Petitioned for process from the Court Military.

'Mr Dethick, these wordes I conceive yield good cause of action in my L. Marshall's court and are fitt for that court'.

12 February 1638.

Signed by Arthur Duck.

8/9, Plaintiff's bond

12 February 1638

Bound to appear in the court in the painted chamber, the Palace of Westminster'

Signed by John Claxton.

Sealed, subscribed and delivered by John Watson.

7/98, Defendant's bond

18 April 1638

Signed by Thomas Tunstall.

Bound to attend the court in the painted chamber, Palace of Westminster, and to pay costs and charges and perform the orders of the court.

Sealed, subscribed and delivered by John Watson.

R.19, fo. 2r, Summary of libel

'That Claxton is eldest sonne and heire of Sir John Claxton of Whittell aforesaid, knt., and that he and his ancestors for above 200 yeares past is and have been gentlemen and soe commonly reputed. And that the Tunstall by a bill or replication in the Lord President's Court at Yorke against Claxton, did assert that Claxton being heire apparent to a worthy knight his father, he hath degenerated from his gentility. Thereby to provoke and c.'

1638

No signature.

17/4j, Personal answer

1. He believed the article to be true.

2. During the time Tunstall had a suit depending against Claxton in the court of York, he gave Mr Richardson, a counsellor at law, a copy of a bill 'to draw up a replication to be put into the court', which replication he believed Richardson then drew up at York. Richardson delivered it to Tunstall's attorney at York, who in turn exhibited it in court. He believed the words in the libel are contained in this replication, despite him never giving instructions to his counsel to insert them, or even knowing they had been. At the time the replication was drawn up he was 50 miles away from York, in Durham. If he had known of the clause, 'he would have caused it to be expunged, for that it is impertinent, and nothing to the purpose.'

3. He did not believe the article to be true.

Introduced 7 May 1638.

Signed by William Merrick.

Summary of proceedings

Dr Eden acted as counsel for Claxton and Dr Merrick for Tunstall. On 20 October and 6 November 1638 Dr Eden, acting for Claxton, was to publish the testimony of the prosecution witnesses. Dr Merrick petitioned on Tunstall's behalf. On 5 December 1638 it was resolved to hear the sentence at the next sitting, but proceedings continued in February 1639.

Notes

John Claxton (b. c.1596) was the son and heir of Sir John Claxton of Nettlesworth, co. Durham, and Mary, daughter of Anthony Wrenn of Binchester. John Claxton married Jane, the second daughter of Francis Tunstall of Scargill, esq, quite possibly a relative of the defendant, Thomas Tunstall.

J. Foster (ed.), Pedigrees Recorded at the Visitations of the County Palatine of Durham, 1575, 1615, 1666 (London, 1887), p. 75.

Documents

• Initial proceedings
  • Petition and Advice of the King's Advocate: 8/8 (12 Feb 1638)
  • Plaintiff's bond: 8/9 (12 Feb 1638)
  • Defendant's bond: 7/98 (18 Apr 1638)
  • Summary of libel: R.19, fo. 2 (1638)
  • Personal answer: 17/4j (7 May 1638)
• Proceedings
  • Proceedings before Arundel: R.19, fos. 434r-449v (20 Oct 1638)
  • Proceedings before Maltravers: R.19, fo. 454r-468v (6 Nov 1638)
  • Proceedings before Maltravers: R.19, fos. 400v-412v (20 Nov 1638)
  • 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: 1/7, fos. 36-47 (9 Feb 1639)

People mentioned in the case

• Claxton, Jane
• Claxton, Mary
• Claxton, John, esq
• Claxton, John, knight
• Dethick, Gilbert, registrar
• Duck, Arthur, lawyer
• Eden, Thomas, lawyer
• Howard, Henry, baron Maltravers
• Howard, Thomas, earl of Arundel and Surrey
• Merrick, William, lawyer
• Richardson, Mr, lawyer
• Tunstall, Francis, esq
• Tunstall, Jane
• Tunstall, Thomas, mercer
• Watson, John
• Wrenn, Anthony
• Wrenn, Mary

Places mentioned in the case

• Durham
  • Binchester
  • Nettlesworth
  • Scargill
  • White Hill

Topics of the case

• denial of gentility
• Council of the North
• insulting letter
• other courts