A true account of the unreasonableness of Mr. Fitton's pretences against the Earl of Macclesfield

A true Account of the Ʋnreasonableness of Mr. Fitton's Pretences against the Earl of Macclesfield.

ALexander Fitton,* 1.1 Son to William Fitton of Ire∣land, petitions the Right Honourable the Lords Spiritual and Temporal, assembled in this present Parliament, to set aside a Decree of the Lord Chancellor Clarendon, made No∣vemb. 27. 1662; grounded upon Sir Edward Fitton's Devise, by Will, to the present Earl of Macclesfield; whereby the possession of the Estate of Sir Edward, Uncle to the said Earl, and remote Kinsman to the Petitioner, with all the Evidences concerning the same, were decreed to the said Earl,* 1.2 a certain Deed Poll set up by Fitton, and condemned in a Trial at the King's Bench-Bar, upon a feigned Issue, to be vacated, and the Estate to be esta∣blished to the said Earl, from all farther Pretences of Fitton, or other the Defendents, or any claiming under him, or them, unless he or they made out a Title upon that Deed, which was the only Pretence, within twelve months, and the said Fitton was to pay the whole Costs. After this Fitton gives notice of a Trial, but would not pro∣ceed; and when the twelve months were almost expired, and he was under a necessity of trying then, or not at all, he prayed farther time; but was justly denied it, being 'twas manifestly for vexatious Delay. And upon Trial at the Grand Sessions of Chester,* 1.3 being the proper County, the Verdict going against him, the Decree was made Abso∣lute. Having acquiest under this for above one and twenty Years, excepting only that he questioned the Witnesses to the Will for Per∣jury, of which they were acquitted by Verdict,* 1.4 he brings his Bill of Review before the present Lord Keeper;* 1.5 who at first required his paiment of the Costs, before he would put the Earl to answer, till Fitton swore his absolute inability to pay them.

Upon the Earl's Plea and Demurrer, Fitton's Bill was dismist;* 1.6 af∣ter this Fitton petitioned for a Re-hearing; which was granted him, but he did not prosecute it.

The Suggestions upon which his Petition is grounded, with their An∣swers, are these:

1. That he had been many Years in possession of the Estate: Whereas he had not been in possession above four Years, and those in the Times of the Usurpation, while the now Earl was in Exile with

his late Majesty. During which time, the said Earl refusing any Com∣position, though 'twas offered him, received not any benefit of that, or of his paternal Estate: And before he was driven out for his Loy∣alty, he was, by virtue of the said Will, in possession of all Sir Ed∣ward's Estate, not in Jointure or Mortgage; and received the Rents of the same, immediatly upon the Death of Sir Edward's Mother, Grandmother to the now Earl; excepting only one part of Gosworth, which was so infested with the Enemy's Troops, that the Earl could not come at it.

2. That the Earl claimed, under a Will of Sir Edward's; The Pe∣titioner under a Settlement with Power of Revocation, and a Deed Poll releasing that Power, both antecedent to the Will: And that though he had contested the Will, he was not admitted to any Trial upon it; wherein he says, He had manifest Wrong and Injustice. Where∣as it appears, upon his own Answer, that he never contested it, but wholly relied upon his Deed Poll, and says, Whether a Will or no Will is not material.* 1.7 And no Man can imagine, that when he had a good Title by a Settlement prior to the Will, he would incur the Crime and Hazard of contriving the Deed Poll, unless he had believed that there was such a Will. Nor was Fitton straightned, as he complains, from trying the Merits of the Cause upon the Will; for the second Trial was in Ejectment, and as Fitton had a very good Title upon the first Settlement till the Will were proved; 'tis evident that the Will could not but come in question, and in Fact was fully proved.

3. Fitton will have it, that the Earl being Plantiff in Chancery, it lay upon him to prove his Will: which he did in that Court, but was not to be put to do it elsewhere, unless Fitton had contested it.

4. To discredit the said Earl, Fitton affirms that the said Earl had a Verdict against the Deed Poll, upon the Evidence of one Granger, a notorious Cheat, whereby he would insinuate as if there were no other Evidence against it; which is not only a reflection upon two Juries who disbelieved it, but even two Judgments of the House of Lords,* 1.8 one of which censured Fitton and his Accomplices for their contrivance, to cast their practices with Granger upon the Earl. The other condemned the Libel to be burnt by the common Hangman,* 1.9 and nothing but the Earl's Clemency, at Fitton's request upon his Knee, after a Jury was impanelled, stopped the said Earl from having him tried, upon an Information of Forgery.

Besides, not to mention all the Circumstances which evinced the Forgery, (which surely one need not, after the Deed has been cancel∣led by order of the High Court of Chancery, upon two solemn Tri∣als) there were these Particulars extreamly pregnant, I may say de∣monstrative, against it. That he neither in Marriage Treaties, nor Trials before with others, concerning the Estate, ever produced such Deed. Nor did his own Father know of it till the Suit with the now Earl, and the supposed Witnesses to it declared, a little before they swore, that they knew nothing of any such Deed; and when they were cross examined upon the Trial, they could give no account of

Time, or Place,* 1.10 or any one Circumstance in relation to the Executi∣on of it.

Nay, one of them, Richard Davenport, at Chester, after the Verdict was over (it having been proved at the Trial what Reward had been promised him by one Berwick, another supposed Witness) before the whole Jury and several other Gentlemen, begg'd the Earl's Pardon for swearing falsly that he was a Witness to the Execution of the Deed, and desired the Earl not to prosecute him.

Whereas Fitton affirm'd openly in Chancery, that he never knew Granger, nor was in his company; yet the contrary was fully proved on the Trial at the King's Bench Bar by several Witnesses.

And the Jury declared that they had sufficient Evidence of the For∣gery without Consideration of Granger; and in truth there was an Evi∣dence in the nature of the thing, for the Settlement to the advantage of Fitton, with power of Revocation, was made in the Life-time of Sir Edward's second Lady; and in that Settlement was no Provision for any Child or Children, beyond the Heirs of his Body, which could be but one at a time. There was indeed a Limitation before that to the Fittons, to such Person or Persons, Estate or Estates, as he should limit or appoint by Will or Deed. Fitton pretends to a Release of all this Power by his Deed-Poll of April 1642, when Sir Edward was newly married to a young Lady, himself in his full Strength and Ex∣pectation of 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 Circum∣stances that appeared in Chancery were strong against it.

6. That his Inheritance was absolutely concluded upon a single Trial, whereas 'tis apparent that there were two solemn ones,* 1.11 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 Possessi∣on, 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 Pre∣tences, 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 particu∣larly required in the Bill,* 1.12 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. 'Tis requisite to give some account of the Proof that there has been to it formerly; and the stron∣ger 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 be∣fore, 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. Ʋrïan 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 Understand∣ing; and was his Voluntary Act, and according to his declared Inten∣tion, 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. pro∣ved the Name of William Ashenhurst his Nephew, another Witness, whose Name was subscribed, and who was a Chyrurgion to Sir Ed∣ward'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 Ing∣ham 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 Bri∣stol, that Sir Edward had setled his Estate in Cheshire upon the now

Earl. And William Kirk of Aleford, Yeoman, who had been a Soul∣dier 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 prose∣cuted 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 dis∣prove 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. Fit∣ton took, and is declared a good Will in the Decree in these words,

Nothing did appear, either in proof or otherwise, to the discounte∣nance 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 Coun∣tenance and Authority which it has so long enjoyed from that Court; and surely that ought not to be taken away without manifest Rea∣son.

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,* 1.13

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 publi∣cation.

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 im∣peached 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 Do∣ctor 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 Te∣stimony by undeniable Circumstances, are dead also.

5. 'Tis 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 mise∣rable 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 en∣deavoured 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 se∣cond 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. 'Tis not reasonable that Suits should be perpetual, and Possessi∣ons always unquiet. And if Fitton has made frequent Entries and Claims, as his Counsel offered in his behalf, 'tis fitting that he should be barred, even of them, after resting so long from legal Prosecuti∣ons. He says indeed, that by the Decree in Chancery, he had his Deeds taken from him, and was deprived of the Liberty of his Per∣son, whereby he was utterly incapacitated to seek for relief till now.

Whereas 'tis 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. What∣ever 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, re∣ly 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 trou∣blesome, barely because the〈…〉〈…〉 of their Infamy is impair'd.

FINIS.

Notes

• * 1.1

  23 May, 1685.
• * 1.2

  Nov. 1662.
• * 1.3

  Nov. 2. 1663.
• * 1.4

  20 Car. 2.
• * 1.5

  April 16. 1684.
• * 1.6

  Term Hill. 1684.
• * 1.7

  Answ. fo. 16 & 17.
• * 1.8

  July 9. 1663
• * 1.9

  July 11. 1663.
• * 1.10

  v. The De∣cree which mentions this
• * 1.11

  v. Rolls ab Tit. Chan∣cery.
• * 1.12

  Vid. The Decree.
• * 1.13

  Rolls ab Tit. Chancery, fol. 382.