365 Leigh v Burnett

365 LEIGH V BURNETT

Robert Leigh of Chingford, co. Essex, esq, v John Burnett of the same, husbandman

October 1637 - November 1638

Abstract

Leigh complained that Burnett had called him a peasant at a bench behind an alehouse near Chingford church in March 1636. He also complained that John Russell, the rector of Chingford, who had several actions depending against Leigh in other courts, had supported Burnett with money and attempted to deter his witnesses. The case was under way by October 1637 and in February 1638 Dr Talbot began Burnett's defence, which focussed on discrediting Leigh's witnesses, Robert Snell, Francis Taverner and John Beard. However, Leigh won the victory in June 1638 and Burnett was fined £10 damages and ordered to make his submission at the east stile of Chingford churchyard between 3 and 5pm on 15 July. He was to acknowledge Leigh to be a 'worthy and honest gentleman', beg for his forgiveness, and promise for evermore to behave himself 'with all due respect towards him and all other the gentry of this kingdome.' The submission was certified by Russell, the rector, but Leigh later claimed that Burnett had not performed it as directed. Burnett petitioned that he was £50 in debt, and that he would face imprisonment, and his family, ruin, if the Earl Marshal would not mitigate his fine.

Defendant's case

14/1gg, Plaintiff 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? How long had they known the parties?

2. Did they live of their own or were they dependent upon another? How much were they worth in goods with their debts paid? Had they been compelled to attend? How much had they received in expenses, or how much did they hope to receive?

3. Was the witness a household servant waged employee, or related to either of the parties? If so, in what degree? To whom would they give victory?

4. Had the witness been instructed how to depose?

5. Had John Russell, clerk, solicited the cause on behalf of Burnett and drawn up the petition against Leigh to hinder the passage of Leigh's suit against Burnett? Had Russell encouraged Burnett with money and advice?

6. Had Russell commenced actions against Leigh in several courts, which were still depending, and had 'expressed much distaste and dislike of Mr Lee in his words and actions and be not a professed enemie to him'?

7. At the time of the examination of Leigh's witnesses last Easter term, had Russell said to Leigh's witness John Beard 'come away, what dost thou here, are not thou one of Mr Boothby's tenants and did not he pull John Beard by the cloke violently to withdraw him from being sworne.'

8. If a witness deposed that after March 1636, and after the speaking of the words in the libel, Mr Leigh invited Burnett to his house for dinner, let them be asked if they were present too, and if Leigh behaved with any kindness or familiarity, whereby it might be conceived that he had forgiven the injury of Burnett's disgraceful speech? Did Leigh have 'certain notice' of Burnet's disgraceful words before the invite was made?

9. If the witness deposed that Burnett was not in Chingford on 22, 24 or 26 March 1636, 'or at least not at a bench behind an alehouse near Chingford church in the presence of Robert Snell, Francis Taverner and John Beard, let them be asked where Burnet was on those days, and how the witness knew that John Young and John Mannis were not in the witnesses' company at the time of the words in the libel, and where elsewhere were Young and Mannis all that time? If Young deposed that he had not heard the words in the libel, that the plaintiff's witnesses described, then how had that been so as it was in his presence?

10. Were Snell, Taverner and Beard of 'honest and sober life and conversation'? Would they forswear themselves? Were they men of 'good estate and ability'?

11. If the witness deposed that Snell was 'given to pilfering and stealing' let him be asked how he knew it? Had he seen him do so, or had Snell been questioned before a judge, or had he just heard this, and from whom? Had the witness ever seen Snell set his mark on another man's sheep, and whether the sheep was recovered by an action of trespass from one Crampthorne? If any witness should say that Snell had cozened many men of their dues, let that witness write down who he had cozened and how.

12. Had he spoken to Taverner and had he heard that Taverner was irreligious, likely to forswear himself, given to cursing and swearing, and a stealer of the king's deer? From whom had he heard this? Did he know Taverner had forsworn himself and how he did he know it?

13. If the witness deposed that Beard was a common drunk and robber of orchards, he was to be asked how he knew this? Had he seen Beard drunk, or thieving, or had he only heard this, and from whom?

14. Was Mr Leigh an esquire and 'a man of verie good rank and quality and soe commonlie accounted'?

No date.

Signed by Arthur Duck.

Submission

4/11, Submission

27 June 1638

'John Burnett, upon Sunday 15 July 1638, presently after evening prayer and sermon (if there be any) ended, and between the howers of 3 and 4 or 5 in the afternoon, standing at the east stile going into the churchyard of Chingford aforesaid, bareheaded in presence of such as shalbe then and there present, and particularly [the] abused Mr Robert Leighe of Chingford, esq, in case he shall think fitt to be there, shall, after somebody reading the same unto him, [say] with an audible voice as followeth:

Whereas I, John Burnett, stand convicted by sentence diffinitive given against me in the Court Militarie by the right honourable Thomas Earle of Arundel and Surrey Earl Marshal of England to have much abused Mr Robert Leighe of this parish esq and to have called him or said that he was a peasant. I do humbly acknowledge that I am hartily sorry for my such rashe and unadvised speeches and abuse offered to the said Mr Leighe, whome I do hereby acknowledge to be a worthy and honest gentleman and I do hartily pray him to forgive and remitt my offence, and disgracefull words and speeches, spoken of and against him, and I do hereby promise to behave my self ever hereafter with all due respect towards him and all other the gentry of this kingdome.'

4/19a, Certificate of submission

'We, whose names are here under written, doe humblie certifie that immediately after evening prayer on a Sunday in July last, John Burnett of Chingford in the county of Essex, husbandman, being required to make his submission to Robert Leighe of the same place esq, according to an order made by the right Honourable the Earl Marshall of England, he, John Burnett, his head being uncovered did at the same time make his submission to Mr Robert Leighe at the stile of the parish church according to the order, saving onlie that, towards the latter end of doing, thereof Mr Leigh calling to Burnett for the repeticon of some words thereof, Burnett then and there did answer, that in obedience to his lordship's order he was ready to do it. But Mr Leigh commanded his servant, who read the order of submission to Burnett, to cease his further proceedings therein. And so for the time being they departed.

No date.

Signed by John Russell, rector and William Smythson.

EM125, Defendant's petition

'Whereas, upon the hearing of the cause before your lordship between one Robert Leigh and your petitioner, your petitioner was then censured att 10^ld [damaged- costs?] 10^ld damage, and likewise to submit, which submission he is ready to perform. And forasmuch as your petitioner is a very poore man, having nothing to live on but a farme for which he payeth 40s per annum rack rent, and by defence of this suite, and partly by other grievances stirred up by Robert Leigh, he is become indebted 50^ld; so that if your lordship shall not have compassion upon him according to your wanted noble disposicon, he, his wife and children are utterly undone, and your petitioner must immediately be imprisoned for the fine.

Now, forasmuch as he is no waies able to bring in sureties by reason of his povertie, therefore in all humbleness [he] desireth your honor either to remitt the fine or else to order a weekly payment according as he shall be able by his dayly industry to pay the same. And your petitioner shall dayly pray for your honor's long life and much increase of honor.'

4/19b, Defendant's petition

John Burnett petitioned that Robert Leigh's complaint that Burnett had not properly performed his submission was false. Burnett produced written support that he had performed his submission from two gentry eyewitnesses.

'For as much as it is evident that your petitioner is a very poor man, having nothing to live on but the labor of an husbandman renting a farme of 30^li per annum, unless your lordship be pleased to enjoin him to perform the submission again, which he is willing to do, desiring your Lordship in the mean while to call in an attachment granted against him that he may safely goe about his affaires.'

M[emo] to me by my Lo. Maltravers 12 9br [Nov] 1638.

Summary of proceedings

Dr Duck acted as counsel for Leigh and Dr Talbot for Burnett. On 14 October 1637 Dr Duck was assigned to refer to the will of the parties, and the cause was continued to the next sitting. The case proceeded before Lord Maltravers and the earl of Bath on 31 October, 18 November, 28 November, 27 January and 3 February 1638. On 12 February Dr Talbot began producing material for Burnett's defence and in March Burnett appeared in person and produced John Russell, Abraham Sparkes, Marie Cranway, Aron Peyth and John Wright as witnesses in support of his defence. On 20 October 1638 Burnet was required to certify his performance of the submission and his payment of the damages and costs.

Notes

Robert Leigh was the eldest son of Sir Robert Leigh of Chingford, co. Essex, knt, and Mary, daughter of one Jocelin. He married Margaret, daughter of Sergeant Branthwayte.

W. C. Metcalfe (ed.), The Visitations of Essex, Part I (Publications of the Harleian Society, 13, 1878), p. 434.

Documents

• Defendant's case
  • Plaintiff interrogatories: 14/1gg (no date)
• Submission
  • Submission: 4/11 (27 Jun 1638)
  • Certificate of submission: 4/19a (no date)
  • Defendant's petition: EM125 (no date)
  • Defendant's petition: 4/19b (12 Nov 1638)
• 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 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 Marten: 1/5 (1 Mar 1638)
  • Proceedings before Marten: 1/5 (13 Mar 1638)
  • Proceedings before Arundel: R.19, fos. 434r-449v (20 Oct 1638)

People mentioned in the case

• Beard, John
• Branthwayte, Margaret
• Branthwayte, Sergeant
• Boothby, Mr
• Bourchier, Henry, earl of Bath
• Burnett, John, husbandman
• Crampthorne
• Cranway, Mary
• Duck, Arthur, lawyer
• Howard, Henry, baron Maltravers
• Howard, Thomas, earl of Arundel and Surrey
• Jocelin
• Jocelin, Mary
• Leigh, Mary
• Leigh, Robert, esq (also Lee)
• Leigh, Robert, knight
• Mannis, John
• Marten, Henry, knight
• Peyth, Aron
• Russell, John, rector
• Smythson, William
• Snell, Robert
• Sparkes, Abraham
• Talbot, Clere, lawyer
• Taverner, Francis
• Wright, John
• Young, John

Places mentioned in the case

• Essex
  • Chingford

Topics of the case

• denial of gentility
• drunkenness
• hunting
• other courts
• previous litigation