507 Pay v Paine

507 PAY V PAINE

John Pay of Petersfield, co. Hampshire, gent v Thomas Paine of Petworth, co. Sussex, attorney

June 1637 - February 1639

Abstract

Pay complained that after he had obtained the court's sentence against Paine for injurious words, he had declared that Pay 'had caused and procured false affidavits to be made before my Lord Marshall'. Paine insisted that he had spoken the words in the context of the hearing of another case before Mr Justice Weston in the Court of Requests. He had also questioned Pay's gentility which led to Pay producing a certificate from Windsor Herald and also making a personal answer in which he sought to account for the appearance of his father, William Pay, as a yeoman in certain indentures and leases from the earl of Arundel. This, he explained, was a ploy by his father to serve the earl as a yeoman rather than a gentleman 'to avoyd charge and expense.' His father, he claimed, had been declared a gentleman at the Visitation of 1574; his uncle and cousin had always been accounted gentlemen, and he himself had been declared a gentleman at the Visitation of Hampshire in 1634. Pay claimed that he had refrained from using the title of gentleman during his father's lifetime 'for modesty and civility sake'.

The case was under way by June 1637 and witnesses were being heard through late 1637 and 1638. It was finally referred to the arbitration of the Earl of Huntingdon and Lord Maltravers who were due to produce an agreement in February

1639.

Initial proceedings

3/182, Plaintiff's bond

19 June 1637

Bound to appear 'in the Court in the painted Chamber within the Pallace of Westminster'.

Signed by John Pay.

Sealed, subscribed and delivered in the presence of Humphrey Terrick.

R.19, fo. 27r, Summary of libel

'Pay and his ancestors is and have bin gentlemen for above 200 yeares past. Pay having justly obtained a sentence in this honourable court against Paine for injurious words and c. Paine (att such a time and place) said that Pay had caused and procured false affidavits to be made before my Lord Marshall, and that he made use of them before my Lord Marshall, and thereby had obtained his lordship's sentence or decree, thereby to provoke and c.'

Third session, Trinity term, 1637 [June 1637].

No signature.

12/1jj, Affidavit [damaged]

1 Feb 12 Chas [1 Feb 1637]:

'In this cause, att the suite of John Pay against Thomas Payne and Thomas Bennett, Thomas Payne, gent., maketh oath that John Pay, a profest enemy of [Paine], and John Walker his agent, in Easter tearme last being to meete upon a referrence of a cause concerning Pay and [Paine] and Thomas Bennett before Baron Weston att his chamber at Serjeants inn, Fleet Street, London; and [Paine] having bine lately before presented with untrue affidavits, made and procured by Pay against [Paine], [Paine] tooke with him one George Edmunds and acquainted him ... what dangerous persons hee was to... with and desired Edmunds... alwaies neare att... record what was spoken... deponent for... what might bee... [3 lines missing]... the same Walker weare togeather... deponent saith uppon his oath... then nor att any other tyme... Matyes Court of Requests that... was a base court or any other... neyther had this deponent any cause... by any hard order there made... soe to doe but on the other side... hath spoken most worthily of the... and counselled and advised many causes... bee to be brought in the same court.'

Signed by Thomas Warren and G. Burnham.

Endorsed. 'Affidavit in [the Court of Requests]'

Exhibited 18 November 1637.

11/32/6, Personal answer

'The personal answer of John Pay made to an allegation given [among the proceedings], and to some indentures or writings exhibited by Thomas Paine in this cause is as followeth.

To the allegation, and exhibits he answereth, that he believeth that William Pay late of Upmarden in the countie of Sussex was his father; and that he is the same William Pay that is mencioned in the exhibits; and that Henry Pay menconed in the exhibits was his brother; and the severall exhibits or some or one of them were subscribed and sealed by William Pay the father, Henry and [himself]; and that all things were soe had and done as therein is contained, saveing that he believeth the reason why William Pay his father was written in the indentures or leases, with the addition of yeoman, and not gentleman, was for that Wm. Pay, holding by lease for yeeres certeine lands of the right Honorable the Earle of Arundell that then was, and being conditioned and tyed by the lease to serve him, and accordinglie beinge sent for to doe service to the Earle of Arundell, and being willed to take his choyce whether he would serve as gentleman or as yeoman, to avoyd charge and expense did choose rather to serve as yeoman; and accordinglie for that reason in all deedes, indentures, leases and other writings made between the Earle of Arundell and William Pay, he was written yeoman, whereas Richard Pay, the eldest brother of Wm. Pay, and Wm. Pay the sonne and heire of Richard, alwaies writt themselves gentlemen and were soe comonlie accounted. In the visitation provincial made anno 1574 this respondent's father, Wm. Pay, then made clayme to the armes belonging to the familie of the Pays, and accordinglie was then declared to bee a gentleman and of that familie, and to beare those armes, as by the booke of survey taken in that visitation appeareth. Whereas [Pay] and his brother have been written yeomen in some or one of the exhibits, he answereth, that although they well knewe that they were gentlemen descended of an ancient familie, yet in respect theire father for the reason afore specified did in the exhibits write himself yeoman, and neglected his condition and title of gentleman, he and his brother meerlie for modesty and civility sake during the life of their father (and not after) did in some or one of the exhibits suffer themselves to be written yeomen; and that after the death of his father, he, *finding the records of his gentilitie*, hath written himselfe gentleman and hath beene soe comonlie accounted, and at the provincial visitation held in Hampshire foure yeares since he was there declared to be a gent and soe registered in the roles and recordes for that visitation.'

Introduced 25 October 1638.

Signed by John Pay.

Plaintiff's case

14/1z, Defence interrogatories

1. Was the witness a relative of John Pay and if so in what degree? Was the witness indebted or obliged to the parties in this case and if so for what sum? Was he a tenant or employee to the parties? If so for what land or what wage? Was he a household servant, retainer or waged employee of either of the parties?

2. Whether since Easter 1636 the witness was a household servant to Paine, and was Paine an attorney? Was George Edmunds Paine's clerk?

3. Asking Edmunds whether Payne said anything to him between April and July 1636 'concerning any affidavits formerly made or procured to be made by John Paye before my Lord Marshall; whether Thomas Payne did not speak such words as were then by him spoken privately and in secret to him' as 'Paynes trusty servant' and for 'Payne's better securitie and not otherwise'?

4. Were the words spoken on 'occasion of some business Thomas Payne was then goeing about in profession of an atturney at lawe and not otherwise'?

5. Speak the truth of what you know, believe or have heard.

No date.

Signed by Thomas Eden.

Summary of proceedings

Dr Duck acted as counsel for Pay and Dr Eden for Paine. On 18 November 1637 Dr Duck produced three schedules and produced Thomas Warren and William Burnham as witnesses, and an affidavit from Windsor Herald. On 28 November the witnesses, including George Edmunds, were to be examined before Sir Henry Marten. On 3 and 12 February 1638 a petition from Dr Duck awaited Sir Henry Marten's verdict. On 20 October 1638 the witness Gray was warned to submit to examination, while Pay was warned to appear in person to respond to Dr Eden's charges. On 6 November and 5 December 1638 the court moved to hear sentence at the next sitting but the case was finally referred to the earl of Huntingdon and Lord Maltravers in February 1639 to produce a final agreement.

Notes

John Pay does not appear in the Hampshire Visitations of 1622-34 or 1686, although a Pay family pedigree does appear in the 1634 Visitation.

W. H. Rylands (ed.), Pedigrees from the Visitations of Hampshire, 1530, 1575 and 1622-34 (Publications of the Harleian Society, 64, 1913); G. D. Squibb (ed.), The Visitation of Hampshire and the Isle of Wight, 1686 (Publications of the Harleian Society, new series, 10, 1991).

Thomas Payne of Petworth, co. Sussex was the second son of Thomas Payne of Petworth and Elizabeth, daughter of Anthony Walker. Thomas married Margaret, daughter of Robert Wheatley of Wheatley, co. York.

W. Bruce Bannerman (ed.), The Visitations of the County of Sussex in 1530 and 1633-4 (Publications of the Harleian Society, 53, 1905), p. 141.

Documents

• Initial proceedings
  • Plaintiff's bond: 3/182 (19 Jun 1637)
  • Summary of libel: R.19, fo. 27r (Jun 1637)
  • Affidavit: 12/1jj (18 Nov 1637)
  • Personal answer: 11/32/6 (25 Oct 1638)
• Plaintiff's case
  • Defence interrogatories: 14/1z (no date)
• 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. 23-35 (3 Feb 1638)
  • Proceedings before Arundel: 1/5, fos. 38-56 (12 Feb 1638)
  • 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)
  • Proceedings before Arundel: 1/6, fos. 20-33 (21 Feb 1639)
  • Proceedings before Arundel: 1/6, fos. 20-33 (26 Feb 1639)

People mentioned in the case

• Bennett, Thomas
• Burnham, G.
• Burnham, William
• Duck, Arthur, lawyer
• Eden, Thomas, lawyer
• Edmunds, George
• Hastings, Henry, earl of Huntingdon
• Howard, Henry, baron Maltravers
• Howard, Thomas, earl of Arundel and Surrey
• Marten, Henry, knight
• Paine, Elizabeth (also Payne)
• Paine, Margaret (also Payne)
• Paine, Thomas, attorney (also Payne)
• Pay, Henry
• Pay, Richard
• Pay, John, gent
• Pay, William
• Terrick, Humphrey
• Walker, Anthony
• Walker, Elizabeth
• Warren, Thomas
• Weston, baron
• Wheatley, Margaret
• Wheatley, Robert

Places mentioned in the case

• Hampshire
  • Petersfield
• London
  • Sergeants' Inn
• Middlesex
  • Westminster
• Sussex
  • Petworth
  • Upmarden
• Yorkshire, West Riding
  • Wheatley

Topics of the case

• allegation of cheating
• arbitration
• Court of Requests
• denial of gentility
• Herald
• other courts