MRP: C6/218/65 f. 5
C6/218/65 f. 5
Contents
Abstract & context
The London apothecary David Clarke was co-defendant with the London merchant Thomas Cutler to the Bill of Complaint in Chancery brought by Samuell Sowton C6/218/65 f. 1. Thomas Cutler's own answer is contained in C6/218/65 f. 3.
Much of Clarke's answer, plea and demurrer is devoted to arguing that he is not required to submit an answer in Chancery, having already answered in the Latin court of the Lord Mayor's Court of the City of London. He asks the Lord Chancellor to make judgement on this argument.
Suggested links
See C6/218/65 f. 1
See C6/218/65 f. 2
See C6/218/65 f. 3
See C6/218/65 f. 4
See C6/218/65 f. 6
See C6/218/65 f. 7
To do
Transcription
//XXX 23:o ??January 1676//
//XXXXXXXXXXXX//
//XXXXXXXXXXX//
//The Answere Plea and demur:r of David Clarke one of the//
//Defend:ts to the Bill of Complaint of Samuell Sowton Marchant Comp:lt//
//The said def:t by way of Answere onely confesseth he hath Affirmed such Bill ag:t the other def:t Thomas Cutler & made such Attachm:t of such moneyes//
//in the said comp:lts hands as in the bill is menconed & denyes he knowes any thinge of the accompt in the bill menconed to bee betweene the p:lt & the other def:t Thomas Cutler & the same def:t by//
//ptestacon not confessinge or acknowledginge all or any of the matters or things in the said Comp:lts bill conteyned not herein before aswered unto to be true in such manner & forme as//
//the same are therein & thereby sett forth ffor plea unto such parte of the said bill as chargeth that the other def:t Tho: Cutler is not at all indebted unto him this def:t And that the ??p:teners of//
//debt from the said Tho: Cutler to this def:t are merely feigned and contrived & designed on purpose to vex the said comp:lt & to draw him to some unreasonable composition And to all & every the//
//matters in the said Bill relatinge thereunto or unto anie releife sought in or touchinge the same this def:t saith that by the custome of the Cittie of London & for the more speedy & effectuall//
//recovery of debts from one person oweinge to another within the said Citty & for the better incouragm:t of commerce & trade It is usuall & lawfull eyther for any creditor in the name of any//
//other person to make an Attachment of his owne moneyes in the hands of his debtor or for anie person to whome such creditor is indebted to make an Attachment of soe much money//
//of his the said creditors in the hands of such debtors as such debtors doth owe to such creditor nor is it materiall to the p:lt or traversable whither such creditor or the said other def:t Thomas Cutler bee//
//really indebted to such other person or to this defend:t soe Attachinge the money in his hands for that custome of the said citty & course of proceedings in Attachm:t as this Def:t is informed & veryly beleives & doubts//
//not to prove that this def:t must upon XXXXX Att XXX XXXX in XXXX XXX ?furnish to answer the other def:t Tho: Cutler such moneyes as this def:t shall recover upon the said Attachm:t in case the said Tho: Cutler shall within one yeare and one day next after indym:t obteyned//
//ag:t the p:lt in the said Attachm:t for such moneys as shall be soe recovered bring a XXXX facias and thereupon disprove or avoyd this defend:ts debt//
//and for that by the custome of the said citty & course used in proceedings upon such Attachm:ts if the said Comp:lt or such person in whose hands such Attachm:t is made will//
//make oath that he is not indebted to the person whose moneyes are attached in his hands such Attachm:t is to be discharged & not proceeded upon unlesse the person who makes//
//such Attachm:t can prove the debt according to the custome of the ?said citty but the said comp:lt hath not made any such oath as appeares by the record of the said court & for further plea saith that the said now//
//comp:lt hath lately exhibited his English bill into the Lord Mayors Court of London to the same effect as ag:t him this def:t with this p:rsent bill & wherein he prays a releife//
//ag:t this def:t upon the said Attachm:t & that all proceedings thereupon may be stayed to which bill this def:t putt in his Answere And the said bill stands ??indgmist out of the//
//said Court as by the proceedings to which this def:t doth referr himselfe relacon beinge thereunto had doth and may appeare And for Demurrer unto soe much of the said bill//
//as prayes a certiorari to remove the said Attachm:t & English bill out of the said Lord Mayors Court this def:t saith that it is not practicable nor reasonable to remove the ?records//
//of the said Attachment out of a latin court where the same is properly tryable into an English court which cannot hold plea thereof & where the same cannot be tryed nor proceeded//
//in, and such proceedings are not only irregular but distructive to the custome of the citty of London & comerce & trade for pmotion whereof and the more speedy & effectuall recovery of debts such//
//Attachments are by the said custome warranted & used And for further Dem:r saith that as to the removeinge the said English Bill by the p:lt himselfe out of one court into another upon a suggestion that his//
//witnesses live out of the Jurisdiccon of the said Lord Mayor Although the same is reasonable for a def:t soe to doe yett itt cannot bee p:rsumed it beinge the p:lts own voluntary act in bringinge the same Bill in the//
//Lord Mayors Court that his witnesses live out of the Jurisdiccon of the said Court when as hee could not but well be apprised there of it were soe and might have begun his suite in this court or might//
//have dismist his owne bill out of that court and as this def:t is advised It is not practiacble for a p:lt to remove his own bill by a Certiorari and if it is be then is it not necessary for this defend:t to Answere//
//the same bill haveinge Answered it in my Lord Mayors court before as doth appeare of the p:lts owne showinge the end of this bill as ag:t this def:t beinge to remove the said bill into this court And there//
//fore this defend:t doth humbly demand the Judgm:t of this hon:rble court whether he shall be compelled to make anie further Answer to the said Bill and humbly prayes to be hence dismist with//
//his costs & charges in this behalfe most wrongfully susteyned//
//OWEN FELTHAM [Signature, bottom RH corner]
//
Notes
