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A26185 A true account of the unreasonableness of Mr. Fitton's pretences against the Earl of Macclesfield Atwood, William, d. 1705? 1685 (1685) Wing A4183A; ESTC R28316 7,944 9

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Children and at the same time W. Fitton to whom the Estate was first limited was known by Sir Edward to be in the Irish Rebellion and the Estate if Sir Edward died must needs have been forfeited and by that pretended Deed Sir Edward would not only have deprived himself of Power to provide for such Children as he might well expect to have but even from raising such Monies as might be necessary to carry on his then Maiesties Service for which he was engaged to the utmost or for any other occasions and no Man could believe this of a Man so prudent as all agreed Sir Edward to be 5. He suggests that the Possession and Deeds were decreed against him before the Cause determined whereas it was not till after solemn Trial at the Bar and the second Trial was wholly in his favour and he had all the Deeds to use at the second Trial Nor can he complain that his Deed-Poll was sent down with a mark of Infamy upon it after the first Verdict or that before that his Deed-Poll was called a pretended Deed in the order for the first Trial since several Circumstances that appeared in Chancery were strong against it 6. That his Inheritance was absolutely concluded upon a single Trial whereas 't is apparent that there were two solemn ones nor was the right of Inheritance touch'd but only the Person bound 7. But then he would give Laws and Limits of his own to the power of the Chancery and says that it ought only to have set aside a Lease of 99 Years upon the Estate so that it might not hinder the Trial of the Right of Inheritance that this was a Trust properly within its power but that the Right of Inheritance was not And the Councel before a Committe of Lords being convinced of the falshood of his other Suggestions seemed in their Reply to put all their Stress upon this as a thing not answered as if their Opinion of the Power of that Court contrary to the Judgment of the Lord Chancellor Clarendon and the now Lord Keeper deserved an Answer But they might have considered that the Chancery did not nor ever does take away any Man 's Right of Inheritance but quiets the Possession and gives the other Incidents to them that have the Right either admitted or proved upon Trial according to the matter in Issue But then the Petition says that no more than setting aside that Lease was pray'd by the Bill whereas it as well sets forth the Will in haec verba and the Earls Title by it complains of Fitton 's setting up Pretences and having Deeds concerning the Estate of which and of all Conspiracies it desires a discovery and prays Relief upon the whole And was it unreasonable or out of the Power of the Chancery as a proper Relief in this Case to give the mean Profits tho not particularly required in the Bill but moved for by Counsel being confessed by the Answer and to establish the Possession against one who would counterfeit a Title to a Man's Estate Shall he afterwards be admitted to contest that Title which is not to be impeached but by a forged Deed If indeed he had urged that the Will was forged or that there was no Will then no Incident to the Right of Inheritance claimed by that would have been given in Chancery till the Will had been tried at Common Law but in this Case the Trial of the Deed was the Trial of the Right of Inheritance which being over the Lease in trust was to be assigned to attend the Inheritance and could not have been duly assigned before But whereas Mr. Fitton thinks it hard that he should not now be suffered to try the Will as if he could manifestly disprove it and he has possest some with the Be●●e● that Granger who was his Creature and Accomplice had an hand in the Will 'T is requisite to give some account of the Proof that there has been to it formerly and the stronger that Proof is the clearer is the Argument that it ought not now to be questioned For surely it is not enough to say Pray let me be admitted to sue for his Estate tho I have been never so vexatious before because he can easily make out a good Title The Proofs to the Will may be divided into three Heads 1. Sir Edward's Declarations of his Intention to settle his Estate upon the Now Earl of Macclesfield 2. The positive Proofs to the Will 3. Several Circumstances subsequent which evince that Sir Edward had made a Will and that they who proved the Will swore true 1. The first was proved at large directly and expresly by Henry Manwaring of Canningham in Cheshire Esquire who married one of Sir Edward's Co-heirs and could not be supposed to swear falsly so much against his Interest Richard Sneyd of Egmond in the County of Stafford Esquire Brother to Sir Edward's second Lady Vrïan Leigh of St. Giles Cripple-gate Esquire Francis Hollinshead of Leek in the said County of Stafford Gent. and Leonard Watson Yeoman who had been Bailiff to Sir Edward's Mother And there was full Proof that Sir Edward who was a zealous Asserter of his King 's Right and the Church of England as by Law established was extremely displeased with Fitton being informed as the truth was that he was on the side of the Irish Rebels as he was after he came into England actually in Arms against the King under the Command of Col. Bradshaw and Sir Edward frequently declared his resolution to give the Earl his Estate being his Sister's Son for his signal Service to his then Majesty 2. That Sir Edward made his Will as aforesaid was proved by Dr. Smallwood who was his Chaplain at the making of his Will both domestick and belonging to his Regiment and afterwards Chaplain in Ordinary to his late Majesty and Dean of Litchfield a Person of known Worth and Integrity who swore that he was present and a Witness to the sealing publishing and delivery of the last Will and Testament of the said Sir Edward Dated August 16. 1643. That it was executed at Bristol he being of sound Memory and Understanding and was his Voluntary Act and according to his declared Intention That the other three Persons whose Names were subscribed were present That Sir Edward delivered it to his Custody with solemn Charge to be true to his Trust And in discharge of the said Trust he delivered it to the now Earl since his return to England with his late Majesty But that the Earl knew of the Will within two days after the making of it was proved by Richard Sneyd aforesaid The aforesaid Francis Hollinshead another Witness whose Name was subscribed to the said Will swore as ●ully to the execution of it as Dr. Smallwood did And Edmond Ashenhurst of the Old Park in Staffordshire Gent. proved the Name of William Ashenhurst his Nephew another Witness whose Name was subscribed and who was a Chyrurgion to Sir
Edward's Regiment John Davenport another Witness to the Will died within a very short time after 3. Edmond Ashenhurst aforenamed swore that when Sir Edward's Corps were carried to be buried at Oxford both William Ashenhurst and Francis Hollinshead told him that Sir Edward had setled all his Estate on the now Earl and at several other times they declared that it was by Will to which they were Witnesses Elisha Manwaring of Morton Sands in Cheshire Gent. James Ingham of Congleton in the same County Joyner Raphael Hollinshead of Halsal in Lancashire Gent. William Trafford of Swithamley in Stafford-sheire Esquire Thomas Powel of Hosely in Flintshire Esquire and Henry Manwaring above mentioned swore to the like Declaration of Francis Hollinshead Thomas Green of Congleton in Cheshire Gent. presently after Sir Edward's Death heard it credibly reported at Bristol that Sir Edward had setled his Estate in Cheshire upon the now Earl And William Kirk of Aleford Yeoman who had been a Souldier under Sir Edward swore to the like Report Richard Sneyd swore that the last words Sir Edward spoke were of rejoycing that so worthy a Person as his Nephew Gerrard was to succeed him Henry Manwaring aforesaid deposed that Dr. Smallwood told him as a Secret before the King 's coming in that Sir Edward had settled his Estate upon the now Earl and that he was a Witness to it And the aforesaid Thomas Holland swore to the like Declaration made to him by the Doctor And several Discourses of Dr. Smallwood and Francis Hollinshead to their Friends presently after the Death of Sir Edward and at other times and but late before the King's Restauration wherein they declared their having been Witnesses to the Will were proved by Richard Leving Esquire Recorder of Chester one of Fitton 's own Counsel Thomas Foster of Holt in Denbigh-shire Gent. and John Smallwood of Middlewich in Cheshire Gent. Thomas Pinfold Clerk or Proctor in the Ecclesiastical Court proved that when the said Will of Sir Edward's of August 1643 was brought into the Office in May 1661 the Seal thereto was fairly fixed but was after broken off after one against whose Interest it seemed had perused it and three Witnesses more proved the same And the two surviving Witnesses to the Will having been prosecuted by Fitton upon an Information of Perjury for their Evidence concerning the same were acquitted by a Verdict These Reasons among several others seem to evince that Fitton ought not now to have an Appeal allowed to reverse the Decree so long since setled 1. The Will which Mr. Fitton would now dispute was proved in Form of Law in the Ecclesiastical Court before the Earl exhibited his Bill in Chancery there Mr. Fitton might have been admitted to disprove it if he could All Parties concerned have either a particular or general Citation there before the Witnesses are allowed and any Man that litigates may have them cross examined 2. The Will was proved in Chancery and the Witnesses justified by Order of that Court notwithstanding the Exceptions which Mr. Fitton took and is declared a good Will in the Decree in these words Nothing did appear either in proof or otherwise to the discountenance of the Will but the Court was fully satisfied that the same was really signed sealed and published by the said Sir Edward at Bristol as his last Will and Testament and that it then was and for several Years before had been his full Intention to settle the Premisses upon the Complainant in case he died without Issue of his Body If this Decree should be revers'd the Will will lose all that Countenance and Authority which it has so long enjoyed from that Court and surely that ought not to be taken away without manifest Reason Besides I take it to be a judg'd Case that this ought not now to be questioned There are two Resolutions in Rolls That If the Chancellor err in his Decree upon a Matter of Fact this Decree is final and can't be reviewed because they ought not to go to new examination of Witnesses for it cannot be done after publication If in Fitton 's Case the Bill of Review were legally dismiss'd there can now be no colour for his Appeal 3. The Credit of the Witnesses to the Will ought not to be impeached after so solemn Justifications as above mentioned so long since when there have been Marriage and other Settlements never contested for many Years and depending wholly upon the Will which they have proved and they are not now alive to evince the Matter by such Circumstances as they might prove by others which cannot now be known It has been objected That it appears by the Oath in Chancery of Dr. Smallwood the principal Witness to the Will that he swore he knew nothing of the Will Whereas it was in relation to another Will made Anno 1641 to which the said Doctor was no way privy whereby the said Sir Edward disposed of his Personal Estate to the Co-heirs and their eldest Sons all but the Earl's Mother and himself which is a further Evidence for the Will by which he claims 4. Besides that all the Witnesses to the Will which was made about two and forty years ago are dead several who confirmed their Testimony by undeniable Circumstances are dead also 5. 'T is not reasonable that a Man should have Advantage by his own Crime Fitton if not enioyn'd by Chancery might in his way have let up one pretence after another and when all ●a●●ed might be let in to contest that Title against which he was driven to such miserable Shifts 6. It was never known that any Decree of the Court of Chancery was set aside without Error apparent or New Matter emergent the Pretence to the last of which ought not certainly to be received after so long a time for such Practices as have already appeared and the most seeming Errors have been already shewn to have been none as Mr. Fitton 's Petition has given occasion to observe them The others mentioned in his Bill of Review are these 1. That there were more concerned in the Settlement under which the Complainant claims than were made Parties to the Bill Which is no material Objection since they might have lawfully endeavoured to support the Deed but cannot pretend any right upon a Deed adjudged forged however no Right is taken from any Body 2. That the Costs and mean Profits are awarded before the second Trial when it did not appear that there was cause But surely it is not severer in the Chancery than in the Common-Law Courts to direct the paiment of the Costs of the first Trial before they allow a Second and the last being wholly in favour to Mr. Fitton he had no reason to complain that the Earl was to have mean Profits as well as Costs besides they are here in the nature of Costs And the same reason justifies the decreeing the Assignment of the Lease before the second Trial which was another Exception 7. 'T is not reasonable that Suits should be perpetual and Possessions always unquiet And if Fitton has made frequent Entries and Claims as his Counsel offered in his behalf 't is fitting that he should be barred even of them after resting so long from legal Prosecutions He says indeed that by the Decree in Chancery he had his Deeds taken from him and was deprived of the Liberty of his Person whereby he was utterly incapacitated to seek for relief till now Whereas 't is well known that he went at large at his Pleasure and if the Deed-Poll was forg'd as was plainly proved there was no reason for him to retain the former Deed of Settlement or any other Deeds which were Evidences belonging to the Earl's Estate Whatever Incapacity he lay under was occasioned by his own Crime and no Man can give a better term to the setting up a forg'd Deed if his Case had not been such as while it was fresh in Mens Memories lost him all Credit he might certainly at any time have had the like Supply as now were it not that he and they who now supply him rely upon something else besides the Merits of the Cause and it would be hard upon Men that have been in long possession of their Estates if they should not be protected from such as are enabled to be troublesome barely because the 〈…〉 of their Infamy is impair'd FINIS 23 May 1685. Nov. 1662. Nov. 2. 1663. 20 Car. 2. April 16. 1684. Term Hill 1684. Answ fo 16 17. July 9. 1663 July 11. 1663. v. The Decree which mentions this v. Rolls ab Tit. Chancery Vid. The Decree Rolls ab Tit. Chancery fol. 382.