414 Mascall v Sole

414 MASCALL V SOLE

Walter Mascall of Lewes, co. Sussex, gent v John Sole of Riverhead, Sevenoaks, co. Kent, hostler

May 1637 - February 1638

Abstract

Mascall complained that Sole had said of him in the street in Riverhead in Sevenoaks, Kent, that 'I was a base fellow, a sharking, shifting fellow, that I lived by gifts, that he was as good a man as my selfe' and 'that I was a rascall'. Sole then gave him the lie and said his wife was no gentlewoman. Proceedings were under way by May 1637, and on the 13^th Richard Chapman went to Sole's house to execute the Earl Marshal's warrant upon him, but was turned away with the threat of a beating. Mascall's witnesses were examined by a commission headed by Sir John Sackville and Thomas More, esq, 22-23 August 1637 at the Bear and Ragged Staff Inn, Riverhead, 26-27 September at the Star Inn, Lewes, Sussex, and on 4 October at the George Inn, Arundel, Sussex. Most of them refused to testify and the two who gave some support to Mascall were unable to depose that Sole had spoken the words he was accused of. In a rare case of a victory for the defendant, on 27 January 1638 the case was dismissed with expenses for Sole. There was a history of conflict between Mascall and Sole as the two had clashed before around Shrovetide 1635, but had been reconciled by Sir Edward Gilbourne and Sir Leonard Bosvile after Mascall had received £10 in satisfaction.

Initial proceedings

4/8, Affidavit

The information of Richard Chapman:

'16 May anno dm. 1637, which day appeared before the right worshipfull Sir Henrie Marten kt, Doctor of the Lawes, Richard Chapman of the parish of Sevenocke, yeoman, aged 27 yeares or thereabouts, and on his corporall oathe maketh saith that he having received a monition or warrant from the right honourable Thomas Earle of Arundell and Surrey, Earle Marshall of England, for to monishe John Sole of Redred, in the parish of Seavenok in the countie of Kent, to appeare before him in the Courte Militarie held in the Painted Chamber at Westminster, there to answer Walter Mascall in his action against John Sole for certaine scandalous words and words of challenge to a duell uttered by Sole against Mr Marshall. On Satterday last being the thirteenth day of this month of May [Chapman] repaired to the dwelling house of Sole, where [he] seeing John Sole went towards him to execute the warrant on him, which Sole perceiving withdrew and hidd himselfe and refused to suffer [him] to execute the warrant upon him; and the wife of Sole threatened [Chapman] that she would cause her servants to beat him, if he did not go from the house. On the next day this deponent again went to the house of Sole, and Sole seeing this deponent spake unto him in these words, Sirra, if I thought you came about the business concerning the warrant which you were here yesterday I would beate you grievouslie, Sole then having in his hand a staff which he shook at [Chapman] whereupon [Chapman], by reason of his threatenings, fearing to execute the warrant on him shewed the warrant to one of the servants of Sole and left with him a coppie thereof'.

Signed by Richard Chapman.

Acta (4), fo. 32, Libel

Mascall was of an ancient family that had been gentlemen for up to 200 years. His wife was Katherine Buffkin, daughter of Henry Buffkin of Otham in Kent, esq. He alleged that John Sole was of a plebeian and non-gentry family and that Sole had said 'that I was a base fellow, a sharking, shifting fellow, that I lived by gifts, that he was as good a man as my selfe, that I was a rascall, and he gave mee the lye, and said, my wife was noe gentlewoeman', and through these words did challenge Mascall to a duel for which Mascall prays for satisfaction.

No date.

Signed by Arthur Duck.

Plaintiff's case

Acta (4), fo. 33, Letters commissory for the plaintiff

Addressed to commissioners Thomas More, esq, Thomas Jefferay, esq, Robert Baker, Bachelor of Theology, Edward Gilborne, Sir John Sackville, knight, Nicholas Gibbons, clerk, to meet from 21 to 23 August at the Bear and Ragged Staff Inn, at Riverhead, co. Kent.

William Aucock was appointed notary public.

Dated 28 June 1637.

Signed by Gilbert Dethick.

Acta (4), fo. 28, Defence interrogatories

1. What was their age, occupation and condition? Where had their lived during the last ten years?

2. Were they related to Mascall and if so in what degree? Were the domestic servants to Mascall or indebted to him. If so, for how much?

3. What were the formal words spoken by Sole? Where and when? Who else was present and what did they say, and in what order? What was spoken or done immediately before these words?

4. Was the witness present with Sole when he spoke such words? Or if not where else? Who else was present?

5. For the witnesses Joanna and Elizabeth Eger: had they since told Thomas Jeffery or 'Mary Jeffery or one of them', or others that they 'could not depose of any ill or uncivill or reproachfull wordes spoken att any time by Sole to or of Walter Mascall or his wife'?

6. Had the witness been given or promised money for their testimony, and by whom? Had Mascall offered to give one Cradock of Battle in co. Sussex, £5 if he would swear that Sole had broken the peace? Speak the truth of what you know, believe or have heard.

No date.

Signed by Thomas Eden.

14/1w, Defence interrogatories

As Acta (4), fo. 28,but without article 6.

No date.

Signed by Thomas Eden.

Acta (4), fo. 31, Commissioners' citation

Citation in Latin for witnesses Tomlyn, Pattenden, Wood, Gardner, Hide, Mantell and Miller to appear before the commissioners at the Bear and Ragged Staff Inn, Riverhead, between the hours of 8 and 11am on 23 August.

Signed by Sackville, More and Gibbon.

Dated 22 August 1637.

Acta (4), fo. 29 Memoranda of case background

'There was a difference betwixt the parties from the Satturday before Shrovetyde depending and contriving betwixt them till the Mydlent week in 1635 or thearabout at which tyme all differences weare composed and concluded by Sir Edward Gilbourne, Sir Lennard Bosvill and Mr Harrise, at Bradbourne howse, and Mr Mascall rec[eived] £10 in full satisfaction for all injuryes offences and pretended scandals whatsoever.'

Remembrance to be at Lewis the 26^th and 27^th of September upon this business at the Starre.'

No date [c. Aug 1637].

Acta (4), fos. 24-27, Plaintiff depositions

Taken before commissioners Thomas More, esq, Sir John Sackville, knight, Nicholas Gibbon, clerk, on the 22 August 1637, at the inn called the 'Bear and Ragged Staff' in Riverhead, co. Kent, with William Ancock as notary public. The witnesses were Abraham Tomlyn, Joanna Gardner, Robert Hide, Edmund Pattenden, John Mantell and James Miller.

Further depositions were taken the next day before the above three commissioners and Thomas Jefferay. The witnesses were Abraham Tomlyn, Joanna Gardner, Robert Hide, Edmund Pattenden, John Mantell and James Miller

Further depositions were taken before the above four commissioners on the 26 and 27 September 1637 in the Star Inn, Lewes, co. Sussex. The witnesses were Alan Cryer, Margaret Wood, Elizabeth Eager, and Joanna Payne.

Further depositions were taken before Sir John Sackvill and Nicholas Gibbon on 4 October 1637 at the George Inn, Arundel, co. Sussex.

fo. 26r (Witness 1), Abraham Tomlyn of Sevenoaks in Kent, born in Marwood, co. Kent, aged 30

To Mascall's libel:

'Mr Walter Mascall hath married Mrs Katherine Buffkin mentioned in the libel... Saying that upon St John's day in Christmas last John Sole being in the house of Robert Hide in Rethered, and their speaking of Mr Mascall concerning the payment of his debts and [Tomlyns speaking in the behalf of Mr Mascall, Sole sayd to [Tomlyns] that he might hold his peace, for he owed him money as well as others'.

Signed by Abraham Tomlyn [mark]

fo. 26r (Witness 2), Joanna, wife of John Gardner of Riverhead, co. Kent, blacksmith, born in Wadchurch, co. Sussex [now Woodchurch, co. Kent], aged 30

To Mascall's libel:

Not required to answer the libel.

Signed by Joanne Gardner [her mark]

fo. 26r (Witness 3), Robert Hide of Riverhead, co. Kent, innkeeper, aged 35

To Mascall's libel:

He is not able to depose anything on the libel

Signed by Robert Hide [his mark]

fo. 26v (Witness 4), Edmund Pattenden of Sevenoaks, co. Kent, innkeeper, born in Rolvenden, co. Kent, aged 40

To Mascall's libel:

He is not able to depose anything on the libel.

Signed by Edmund Pattenden

fo. 26v (Witness 5), John Mantell of Riverhead, in the parish of Sevenoaks, co. Kent, tailor, born in Otford, co. Kent, aged 28

To Mascall's libel:

He does not know anything relevant to the libel.

Signed by John Manffe

fo. 26v (Witness 6), James Miller of Rootham, co. Kent, gent, aged 50

To Mascall's libel:

He had known Mascall for many years to be a gentleman, 'and to have lived in very good fashion and quality. And that he married Mrs Katherine Buffkin daughter of Henry Buffkin esq'.

Signed by James Miller

fo. 27r (Witness 7), Francis Pen of Riverhead, co. Kent, cordwainer, born in Ashchurch, co. Gloucester, aged 50

To Mascall's libel:

Mascall and Sole fell out in the street at Riverhead 'at which time and place there passed many ill words between them by both parties and amongst other speeches which were uttered John Sole gave the lye, which [Pen] conceaveth to be given to Mr Mascall because there was no body nere them in the streete but themselves'. He was not far from them in the street and heard and observed well. Sole 'hath bin reputed to be no gentleman and [Pen] hath known him to be an hostler at Chepsted.' He could not remember the specific words Sole used and could not depose that Sole said, 'Thou lyest, you lye or Mascall lyeth'. But he deposed that 'there were diverse persons in the street within hearing of the words.'

Signed Francis Penn

fo. 27v (Witness 8), Margaret Wood of Riverhead, co. Kent, spinster, aged 24

To Mascall's libel:

She does not wish to depose on the libel, and Mascall owes her money for her expenses.

No signature or mark

fo. 27v (Witness 9), Elizabeth Eager of Lewes, co. Sussex, spinster, before of Riverhead, co. Kent, aged 22

To Mascall's libel:

She was at the house of Mrs Smyth of Riverhead with John Sole who did 'rayle against' Mascall 'then [Eager's] master'. Sole 'sayd that if Mr Mascall had not beene a base fellow he would not have taken ten pounds of Sole for a kisse'. Nobody was present but Eager and Sole, as Mrs Smyth had gone into another room of the house. Eager desired Sole 'to forbeare to use such speeches of her master and mistris because they were not present to make him an answer, whereunto Sole' said to her, 'Why doest thou speake so much for thy master, hee is a base fellow, and that is well knowne to all the country, and that thou will fynde at the last, ther being no other present.'

Signed by Elizabeth Eager [her mark] and by the four commissioners.

Acta (4), fo. 30, Notary public's certificate

Certificate in Latin signed by William Aucocke, notary public that the above examinations had been completed and were now being returned, 6 October 1637.

Also signatures of Thomas More, Nicholas Gibbons, John Sackville and Thomas Jefferay, 27 September 1637.

Notary's mark.

Sentence / Arbitration

13/1h, Bill of costs

Trinity term, 1637: £4-12s-6d

Michaelmas term, 1637: £18-3s-4d

Total: £22-15s-10d

Signed by Thomas Eden

Taxed at 20 marks

Signed by Lord Maltravers

No date [January 1638]

Summary of proceedings

Dr Duck acted as counsel for Mascall and Dr Eden for Sole. On 28 November 1637, Dr Duck was required to prove Mascall's gentility, and on 27 January 1638 the case was dismissed with expenses for Sole and the case taxed at 20 marks.

Notes

Walter Mascall of Lewes, co. Sussex (b. 1579), was the son of John Mascall (d. 1589), and Dorothy, daughter of Walter More of Wivelsfield, co. Sussex. Walter first married Rose (d. 1619), daughter of Thomas Aynescombe of Mayfield, co. Sussex. His second wife was Katherine, daughter of Henry Buffkyn of co. Kent. John Sole appeared in neither the 1619-21 nor the 1663-8 Kent Visitations.

J. B. Whitmore and A. W. Hughes Clarke (eds.), London Visitation Pedigrees, 1664 (Publications of the Harleian Society, 92, 1940), p. 95; W. Bruce Bannerman (ed.), The Visitations of the County of Sussex in 1530 and 1633-4 (Publications of the Harleian Society, 53, 1905), pp. 189, 198.

Documents

• Initial proceedings
  • Affidavit: 4/8 (16 May 1637)
  • Libel: Acta (4), fo. 32 (no date)
• Plaintiff's case
  • Letters commissory for the plaintiff: Acta (4), fo. 33 (28 Jun 1637)
  • Defence interrogatories: Acta (4), fo. 28 (no date)
  • Defence interrogatories: 14/1w (no date)
  • Commissioners' citation: Acta (4), fo. 31 (22 Aug 1637)
  • Memoranda of case background: Acta (4), fo. 29 (c. Aug 1637)
  • Plaintiff depositions: Acta (4), fos. 24-7 (26 Sep 1637)
  • Notary public's certificate: Acta (4), fo. 30 (27 Sep 1637)
• Sentence / Arbitration
  • Bill of costs: 13/1h (Jan 1638)
• Proceedings
  • 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. 38-56 (12 Feb 1638)

People mentioned in the case

• Aucock, William, notary public (also Aucocke, Ancock)
• Aynescombe, Rose
• Aynescombe, Thomas
• Baker, Robert, Bachelor of Theology
• Bosvile, Leonard, knight
• Buffkin, Henry, esq (also Buffkyn)
• Buffkin, Katherine (also Buffkyn)
• Chapman, Richard, yeoman
• Cradock
• Dethick, Gilbert, registrar
• Duck, Arthur, lawyer
• Eden, Thomas, lawyer
• Eger, Elizabeth (also Eager)
• Eger, Joanna (also Eager)
• Gardner, Joanna
• Gardner, John, blacksmith
• Gibbons, Nicholas, clerk
• Gilbourne, Edward, knight
• Harris, Mr
• Howard, Henry, baron Maltravers
• Howard, Thomas, earl of Arundel and Surrey
• Jefferay, Thomas, esq (also Jefferie)
• Marten, Henry, knight
• Mascall, Dorothy
• Mascall, John
• Mascall, Rose
• Mascall, Walter, gent
• More, Dorothy
• More, Thomas, esq
• More, Walter
• Pattenden, Edmund, innkeeper
• Payne, Joanna
• Pen, Francis, cordwainer
• Sackville, John, knight
• Sole, John, hostler
• Tomlyn, Abraham
• Wood, Margaret, spinster

Places mentioned in the case

• Gloucestershire
  • Ashchurch
• Kent
  • Chipstead
  • Otford
  • Otham
  • Sevenoaks
  • Woodchurch
• Sussex
  • Battle
  • Lewes
  • Mayfield
  • Wivelsfield

Topics of the case

• arbitration
• calling sirrah
• comparison
• denial of gentility
• giving the lie
• provocative of a duel
• threatened violence