A NARRATIVE OF THE State of the Case BETWEEN John cromwell Esquire, and Abigaile his wife, plaintiffs. Thomas Berney Esquire, and John Awcock Gent. Defendants. EXTRACTED Out of the Bill, Answers, Proceedings, and proofs in the Court of Chancery. Touching the manors of Buckenham-Ferry, and Hassingham, Ornesby burrow, and Scrotby in the County of norfolk. Heretofore the Inheritance of Sir Henry clear. LONDON, Printed 1652. John cromwell Esquire, and Abigail his wife, Plaintiffs. The Lady Jane Denny late widow, now the wife of Sir William coney Knight. Defendants. Tho. Berney Esquire, and Dorothy his wife, and Joh. Awcocke, Gent. Defendants. The Effect of the Bill. THat 14. Car. by Information in the Court of Wards for the plaintiff, then a Ward, against John Smith, and John Awcocke, and other their Trustees, it was charged. That Sir Henry clear was seized in Fee of the manors of Buckenham-Ferry and Ornesby &c. in norfolk. And that Smith and Holl, when he was young, got him into several Mortgages, and a Statute of 2000 li. and to mortgage to the lady Moundford, and to convey other parts to others, and in his sickness aiming at his whole estate persuaded him to make Assurances of his lands in trust to be sold, pretending there would be provision of 3000 li. for the Lady Merriel clear his wife, and an overplus for her child. Aug. 28. 20. Jac. An Assurance was prepared by way of bargain, and sail for 10000 li. mentioned to be paid by Sir Hen. Bedingfield, and others, and sealed to him the said Sir Hen. Bedingfield, Sir Tho. hernia, Tho. Knevett Esquire, and Henry Best Gentleman, and their heirs, which was enrolled. A Declaration of Trust was made at the same time that the lands should be sold within two yeares after Sir Henry clears death, and the profits to bee received and raised by sale, should bee employed according to the Trust. 1 To permit Sir Henry clear to take the profits for lice. The Trust. 2 After Sir Henry his death, to permit Dame Merriel clear his wife to receive the profits till sale. 3 With the money raised the debts to be paid. 4 The debts being paid to pay 3000 li. to Dame Merriel, she releasing. 5 The overplus to bee delivered to her for the plaintiff Abigail, or such child as she should after have. Sir Henry clear dyed. That Smith and Holl opposed finding the Office. That Smith and Holl( and Lady clear) by their procurement, preferred a bill in Chancery against Sir Hen. Bedingfield and other Trustees to have the lands sold according to the Deeds. Trustees answered, and thereby submit, to do what the Court directs therein. April 25. 3. Car. the cause was heard upon Bill and Answer. Decreed. 1 That the Lands should be sold, and the moneys applied according to the Trust. 2 To pay debts first. 3 A Commission awarded to examine debts. 4 A time prefixed for Creditors to come in. That Smith and Holl kept off Purchasers, declared that the Lands were much encumbered, and Holl claimed Buckhenham-Ferry by a Mortgage, and extended his Statute. Smith and Holl agreed to give 4000 li. for the purchase, moved the Court to have a reference to Justice Harvey, which was ordered. May 13. 4. Car. That Mr. Justice Harvey considered of the Decree and proceedings, and certified what he thought fit to bee done therein. Smith and Holl were Justices of Peace in norfolk, had so much credit with Mr. Justice Harvey, that he credited what they said without proof upon oath, and certified, 1 That the Land was better worth then 4000 li. but in respect of encumbrances, judge Harvies Certificate. he thought fit the Trustees convey to Holl and Smith, who were willing to deal, deducting their own debts. 2 To be detained by Holl, due by Mortgage 1700 li. 3 By Smith, 1000 4 Mrs. Dorothy Moun●ford, 900 5 The Lady Steward, 150 6 Love, 100 7 Hughes, 100 8 And 50. li residue of the 4000 li. to the Lady Merriel clear. The Certificate was confirmed. The Trustees made assurance to John fountain and others in trust for Smith and Holl, whereby for 4000li. they have got 1000 li. per an. Smith and Holl compounded encumbrances at easy rates. Sir Edward clear that had 400 li. per an. for his life took 200 li, per an. and forced the Lady Merriel clear for 400 li. per an. for life to accept 200 li. per an. who was then fickly, and dyed within two years. That the allowance to Holl for interest was not moderate according to the decree. Smith and Awcocke two years after bought out Holls mortgage for 1200li. and Smiths debt was not real. June 23. 16 Car. Cause was heard in the Court of Wards. Declare that Smith and Holl were no clear purchasers; therefore decreed they should account, and reconvey. The plaintiff Abigail married the other plaintiff, and an information by way of revivor put in, the defendants Smith and Holl answered. An account put in, but before any account perfected, the Court of Wards was taken away. After Petitions in Parliament the account was referred to Sir Benjamin Rudyard, Febr. 1645. and Mr. Attorney of the Court of Wards, but after, the whole business referred to be determined in Chancery. A third part was, after the office found, settled by injunction of the Court of Wards, upon the plaintiff Abigail heir at law. The charge of the Bill in Chancery was, that Smith and Awcocke being dead, Jane Denny, The Bill in Chancery: and Dorothy Berney Daughters, and Heires; and Tho. Berney, Dorothies husband, & Awcock, son of Awcock deceased, received the profits of all the third part allotted by the Court of Wards to Abigail, and to have account and re-assurance of the lands was the effect of the Bill. The Defendants by Answer set forth. THat 17. Jac. The Lands were settled upon Sir Henry clear charged with several rents and encumbrances, viz. 1. One annulty for the life of the said Sir Edward, 400 li. per annum 2. One other during the Lady Meriels life, if she survived Sir Henry, of 400 li. 3. One other during the life of the said Sir Edward, if he survived his wife of, 200li. 4. One other to Dame Margaret his wife, if she survived Sir Edward, of 200li. 5. One other in case Dame Margarett die, and Sir Edward mary a second wife for the life of such second wife, of 200 li. Easter term. 18 Jac. Sir Henry clear suffereth a Recovery to cut off the entail. Sept. 10. 18 Jac. Sir Henry for 100li. grans an Annuity of 10 li. per annum to Dame Abigail Moundford issuing out of part of Buckenham. June 20. 19 jac. Sir Henry for 1000li. borrowed of Mr. Holl, mortgage a moiety of the mannor of Buckenham, to pay 1100 li. july 1622. and enters a recognisance of 2000li. additional security. july 5. 19 jac. Sir Henry for 800li. borrowed of Mrs. Dorothy Moundford mortgages the residue of the said Mannor of Buckenham to pay 880 li. July 8. 1622. Another mortgage to Love for 100li. besides divers judgements and other Debts. june 1621. 19. jac. An Agreement, that Sir Edward hold Ornesby in lieu of his annuity of 400 li. per an. made by him and Sir Henry his son. Aug. 18. 20 jac. Sir Henry having thus charged his estate falls sick, and in the time of his sickness, by his Indenture conveys all the premises for the consideration of 10000li. paid to Sir Henry Bedingfield Sir Tho. hernia, Tho. Knevet Esq; and Henry Best gent. and their heires. The Indenture is inroled. And by another dead of the same date declares the trust of the sale to be. 1. That the Trustees within two yeares after his death sell the premises at the best price. 2. Till sale, his Lady to receive the profits towards payment of his debts. 3. His debts to be paid with the money raised by the sale. 4. After debts paid, his Lady to have 3000 li. in lieu of her annuity of 400 li. per an. 5. The residue to be for the now plaintiff Abigail then an Infant, and within two or three dayes after Sir Henry dyed. After Sir Henry clears death the Trustees offer the premises to sale, but in respect of the encumbrances none would deal, and the interruptions of Sir Edward clear; the lands being but 554li. 12s. 8 d: per an. The Lady Merriell clear by some order made by the Lord Hobart, between Sir Edward and the Lady, The Lady clears Letter. she was to enjoy Buckenham, which she offered to let for 250 l. per an. in lieu of her annuity of 400 l. per an. in respect of the incumberances charged thereupon by Sir Edward, and for his debts, nothing she made of it in two years. Aug. 13. 22 Jac. The Lady Moundford and Mr. First intended purchase by Holl and Smith within the time limited by the dead of Trust. Smith being bound for Sir Henry clears debts, which came to about 600l. and Mr. Holls debts being 1200l. they were contented to take a conveyance of the reversion of the Mannor of Ornesby at 2000l. and a conveyance was drawn and sealed, but not inroled; some of the Trustees being fearful to bee questioned because of the great disproportion between what the Land was then really worth, and what Sir Hen. clear esteemed it at. Novem. 8. 22 Jac. Sir Edward clear for 400l. fine, and 200 l. per an. demiseth Ornesby, &c. to Claxton and Howard, in trust for Smith, for 40 years, if he so long live. hilary term 22. Jac. the Lady Moundford, the Lady clear, Mr. Smith, and other creditors of Sir Hen. clear, exhibit their Bill in the court of Chancery against the Trustees to compel them to sell. In prosecution whereof the Lady Moundford was chief, and did prefer her Bill into Parliament, to have the land sold. Easter term, 1 Car. The Feoffees answer, and the reason why they did not fell, was the disproportion of the value, were willing to do as the Court should direct Maii 30. 1. Car. The Court directs a Commission to issue to Sir John Corbet, Sir John Holland, Sir John Henningham and Sir Robert Gaudy. 1 To examine the value of the Lands upon oath. 2 The encumbrances and debts. 3 To procure a Purchaser. Commissioners certify the Annuities and Debts as aforesaid, Commissioners Certificate. viz. 1 The Mortgage to Holl. 2 The Mortgage to Mrs. Dorothy Moundford. 3 The Mortgage to the Lady Steward, Lady Moundsords Rent charge, Loves Mortgage, and Five Judgements of 800 li. 4 Greens farm leased to the Lady Moundford, and Smith to secure them against debts, they were engaged for Sir Henry clear, which came to about 700 li. all paid by Mr. Smith.( save Claxtons.) 5 The manors and premises to bee worth 554 li. 12 s. 8 d. per annum, viz. Ornesby burrow, and Scrotby, 288 li. 16 s. 0 d. Buckenham-Ferry and Hassingham, 265 li. 16 s. 8 d. 6 That in respect of the great encumbrances, and the waste committed by Sir Edward, they could not procure a Purchaser. Decem. 1. 2 Car. Second intended Purchase of Smith. The Court upon that Certificate, order a Commission to set forth a moiety of the Mannor of Ornesby to Mr. Smith, and to make up his debt of 730 li. 1000 li. for the purchase thereof. Nothing was done thereupon. The 25 of April, 3 Car. upon hearing of the cause, the Court decreed the Feoffees to sell. This Decree was enrolled 11 Maii; and no purchaser would deal in respect of encumbrances. May 13. 4 Car. The Court being informed that by reason of encumbrances, above 4000li. could not be got for all the lands, and that Mr. Smith and Holl would give so much, so as they might defaulk their debts. The Court ordered that, 1. Mr. Iustice Harvey consider of the Decree. 2. Direct the Assurances. 3. How the 4000l. should be disposed of. 1. June 19. 4 Car. Judge Harvies Certisicate. The judge certifies that in reof encumbrances 4000 l. was the best price. 2. The Trustees to convey to Holl and Smith. 3. To retain to Holl 1700li. 4. To Smith 1000li. 5. To pay Mis. Moundford 900li. 6. To Lady Steward. 150li. 7. The Lady Mar. clear to have 200 l. per an. for life. 8. The Lady Merriell clear to have Buckenham for her life, in lieu of her annuity of 400 l. per an. and to grant an annuity out of it to Holl, &c. The Lady was content rather to accept 200 li. per an. then Buckenham, which was paid her. The 21. and 22 July, 4 Car. The Iudges report confirmed. Holl and Smith drew Mr. Awcock to join with them in the purchase. Aug. 31. 4 Car. The purchase of the whole under the Decree in Chancery. The Trustees in pursuance of the orders, &c. convey to fountain, Aldridge, and Sotherton( persons trusted by Holl, Smith, and Awcock.) The 25 Sep. following, they pay the money directed to Mis. Mundford and others, who released to fountain, Aldridge, and Sotherton. Love would not take his 100l. but held the Land mortgage, nor could Hughes be found to accept his 100l. and discharge the Iudgement. Sept. 30. ☞ 6 Car. Mr. Holl falling sick, gives his third part by his will to his Wife, or 1000l. in lieu thereof, she accepts the 1000l. and Holls two sons for 1230li. sells it to Smith and Awcocke two yeares after. Nov. 22. 8. Car. The Lady Merriell clear dyed, being thirty years of age or thereabouts. In the year 1634. 10. Car. Sir Edw. clear dyed, his Lady living, who had 200 l. per an. for her life who dyed not above two years since. The Lady clear, and Sir Edward being dead, and their annuities thereby determined. hilary Term following, an information was exhibited in the Court of Wards against Smith and Awcocke. Michaelmas term, 1637. The office found, and the Mannor of Ornesby to be held in capite. At the finding of this office, Colfer, and Paynell counsellors at Law. the Defendants evidence was rejected, proved by Colfer, and Paynell. several motions made to be admitted to traverse, or to have a Melius inquirendum but without success. May 20. 1638. A Division made, and the third part set out, and the profits received. Easter term 14 Car. Another information exhibited against Smith and Awcocke, wherein is suggested that Smith and Holl unduly drew Sir Hen. clear into great debts, to mortgage the greatest part of his estate to them, and that they procured him upon his death bed, to make the conveyance to Sir Hen. Bedingfield, &c. and pretending a Trust, prayed an account of the profits. The Defendants by Answer set forth the former proceedings in Chancery. Trinity term 16. Car. the cause came to hearing in the Court of Wards, And DECREED, That in as much as Smith and Holl were the principal Agents in procuring the dead to be made by Sir Hen. clear to Sir Hen. Bedingfield, &c. and that the Court conceived that Holl, Smith, and Awcocke were not clear purchasers, therefore decreed them to account and re-convey. Octo. 30. 1646. In pursuance whereof accounts were exhibited, but before re-conveyance the Court of Wards being taken away, both parties applied themselves to the Parliament, and by an order of Parliament the whole Matter referred to the Court of Chancery. hilary Term following the Plaintiffs exhibit their bill against Smith and Awcocke, plaintiffs Bill; in Chancery. and set forth the whole proceedings in the Court of Wards, & that they cannot by power of that Court( it being down) enforce obedience to the Decree, but for relief appeal to the Court of Chancery according to the order of Parliament, and that the Defendants may set forth how they hold the said lands, may make re-assurance according to equity and intent of the said Decree, and that by Decree of the said Court they may receive relief, in all and every the premises. The Defendants answered, The Defendants Answer and thereby set forth the purchase under the Decree of the Court of Chancery, and the truth of their case, and that they conceived their Inheritance ought not to bee bound by the proceedings in the Court of Wards, there being no tenor in capite, nor any trust proved, but that they were clear Purchasers under the Decree of the Court of Chancery, not subject to any trust or accounts, and that there was not any question made till the annuities and other charges for lives ended, and desired they mighe not be prejudiced by the unjust proceedings in the Court of Wards against which they complained in Parliament. May 6. 1650. the cause came to bee heard( though the plaintiff Mr. cromwell had not taken the engagement, which was moved to stay proceedings, but disallowed,( the Court not being full) and a decretal Order pronounced whereby it was declared. 1. That Holl and Smith were the original Trustees of Sir Hen. clear. 2. That the estate they claimed, was by them gained from Sir Henry clear in the extremity of his sickness, upon pretence that the plaintiff should be provided for, and the debts paid. 3. That the Decree and conveyances whereby they would make themselves Purchasers, were obtained upon false informations, irregular proceedings, and in abuse of the Court. And the Lords Commission, that were then present DECREED, 1. The last Decree of Court of Chancery. That the conveyances obtained by Holl, Smith, and Awcock be set aside. 2 The Defendants being paid and satisfied, what shall appear to have been really disbursed by Holl Smith and Awcocke, or due to them from Sir Hen. clear, discounting mean profits with damages, shall re-convey. 3 That the accounts be referred to Mr. Rich and Mr. Hackwel. 4 It was ordered that if the Defendants will keep possession, they shall give security, or else the plaintiffs giving security to pay what shall be due to the defendants upon account, shall have the possession. Which Decree was signed and enrolled. After some Orders the Defendants gave security accordingly to secure the mean profits, since the Decree. Berney gave recognisance of 1000 Marks. Awcocke gave recognisance of 1000 li. Julii 18. 1650. Ordered a Commission issue into the Country to examine and clear the Account returnable the first of October. Subsequent proceedings in Court after the Decree. The plaintiffs had the carriage of the Commission, and 16. of September, was the first day of the Commissioners meeting, and they spent four dayes time, and could attend no longer. Upon oath made that the Defendants had divers witnesses which for want of time, could not be examined. Octob. 18. 1650. Ordered the Defendants deliver the names of their witnesses and places of abode, and examine them in Court within three weeks. Names were given, and it was moved for the Defendants in respect of the shortness of time, the distance of place, and many witnesses, that Commission might issue to e●●mine them all in the Country. Novem. 7. 1650. Ordered the Defendants have a Commission to examine onely those that could not travail without danger of life, and it was Ordered that the Rents bee brought into Court, and the security given by Berney and Awcocke, discharged. Decem. 2. 1650. When the Court had denied a Commission to examine any other witnesses, but such as were unable to travel; one of the plaintiffs counsel consented, Mr. Chute. and it was ordered that the Defendants should have a Commission to examine all their witnesses by the first day of the next term. Maii 6. 1651. The Masters by report desire the directions of the Court concerning the time of the rise of the Account. 1 Whether Bernies account should begin Michaelmas 1624. or Michaelmas 1628. 2 Whether Awcocks Account should begin Michaelmas 1628. or Michaelmas 1633. The Court differed in opinion, but it was then Ordered that Berney should account from 1624. Awcocke from 1628. Notwithstanding they both claimed under estates for life, precedent to the dead of Trust to whom( sc. to Sir Edward clear, and Lady Merriel clear) the plaintiff was neither Executor, nor Administrator. After a long attendance upon the Masters, and hearing council on both sides, Mr. Rich certifies due To Awcocke 3099 li. 10 s. 4 d. To Berney 1838. li. 05. s. 4. d. Mr. Hackwil differs, and certifies by way of exception to Mr. Rich his report. June 23. 1651. See the Affidavit against Hackwel. Upon debate concerning both Reports( the Court not being full) 1000 li. was dis-allowed, which was certified to bee laid out in improvements, and 728 li. for repayres to Awcocke, and not any depositions permitted to be red for making it out, though offered. And concerning Holls 1000 li. secured by Statute, it was ordered, no more be allowed then was really paid with damages, though the sum was ascertained by defeizance two and thirty yeers since, and the Defendants being strangers. Julii 11. 1651. Upon suggestion that the Defendants delayed the account, the Court decreed the possession to the plaintiff, although it was then offered by the Defendants in Court, to prevent the taking away of possession, that the plaintiffs should have all the accrueing profits of the said state giving security. And although it was then offered likewise by the Defendants in Court, that the whole accounts should be referred to any of the plaintiffs counsel, the same was not excepted. The plaintiffs have by the said order gained the possession, and the Defendants have neither land nor money, nor any security given, as the Decree directed. The Truth hereof appears by the pleadings, and other proceedings. THe Defendants conceive upon the whole matter they are very strictly dealt withall, The Grievance. both in respect of the nature of their case, and the proceedings. They were not the parties trusted, but Sir Henry Bedingfield, Sir Tho. hernia, Tho. Knevet Esq. and Hen. Best Gent. who were, and are kindred and friends of the plaintiff; some of them having been trusted and employed upon settlement of the estate, between Sir Ed. clear, and Sir Henry his son, upon marriage of the said Sir Henry, with Lady Merriel, the plaintiffs mother. What was done, was, when Sir Hen. clear was of perfect understanding, and done to a just end, to have the land that was much encumbered, sold within two yeares to pay debts. The Contracts that Smith and Holl made, was after by faire and due proceedings approved by the Court, and there was a Decree that the land should bee sold, after a valuation was made by Gentlemen of very good account, by force of a Commission directed to, and executed by Sir Joh. Holland, Sir Joh. Henningham, Sir Joh. Corbet, and Sir Robert Gaudy Commissioners. And after upon a Judges Certificate that 4000 li. was the highest value could bee got for the Land, considering the present charges and encumbrances. And there was nothing then done, but if the same were now to bee done, it is humbly conceived in the usual course of Justice would be done. For all the yearly payments, the debts due by Mortgage and Statute that were real charges upon the Land, ought to be allowed. The value of the lands then was but per an. 554li. 12s. 8d. Charges were for two lives 800li. Charges in Reversion, besides other contingencies 200li. Debts charged above 4000 li. THere was no false Informations, no Irregular proceedings, no abuse to the Court; but upon the strictestexamination the proceedings in the former cause, whereupon a Decree was gained in the Lord Coventries time, will appear to be just, and if by negligence of a Clerks Bill an answer be mis-layed, yet a Decree signed, and inroled, and executed, is not to bee avoided: And the Defendants Ancestors were purchasers of Reversions, clogged and charged with encumbrances, but were encouraged by the Decree of the Court to purchase, and the Trustees sold to them by force of the Decree. Smith Holl, and Awcocke were purchasers under the Decree, they thought they had a hard bargain. Holls part was left by his Will to his wife, or 1000 li. she made choice of the 1000li. which proves it not to be worth the third part of 4000 li. and Holls sons paid her the 1000 li. and sold the Reversion to Smith and Awcock, for 1230 li. which was less then the sum allowed by Judge Harvies report by 470 li. Smith agreed with the said Sir Edw. clear for his Interest for life. Awcocke took a Lease from the Lady Merriel clear for her life. Awcocke was a stranger to all the proceedings, but was encouraged by the Decree to purchase. The estate was much out of heart, and at his charge his part of the premises, is improved above a third part, besides charges in building, and repair. And when Awcocke purchased, it was with the free consent of the Lady Moundford, the Lady Steward, and the Lady Merriel clear the plaintiffs mother. And yet the Testimony of the Lady Moundford, and Lady Steward is the chief ground of the last Decree. And upon the hearing in the Court of Wards it was declared that neither the said Holl or Smith were guilty of any fraud or practise. See the Lady Moundfords Letter. If there were any breach of Trust, the parties trusted( if guilty) ought to bee condemned, and not the purchasers, who have no more to do, but to look to their assurances, and pay their money, which was done by discharging Statutes, Mortgages, and other, wise as was directed by a Judge, warranted by order of the Court, against which Judge nothing was ever objected of corruption, nor any practise proved since his death. Nor was there any question made in seven years, till the estates for lives, and the charges determined, and when by accident after seven yeers that the bargain proved a good bargain, then, and not before the Suite in the Court of Wards was commenced, wherein the proceedings were unusual, if not unjust. It is a President of a dangerous consequence, that Heirs and Assigns of purchasers( as the Defendants are) should be questioned, and forced to account after such a length of Time. And it is conceived that if Tenant for life, or one that hath a Rent for life, and after the Reversion is sold, and he agree with the Reversioner for his own estate, though the Grantee of the Reversion get a good Bargain, yet the heir, if he were entitled to an Equity, shall never have any abatement in respect of the Purchasers good bargain; but the charge shall continue as good a charge upon the Lands( as to the heir) as it was in the Ancestors time. Yet the Court hath directed otherwise) By the Decree made upon the hearing, the Defendants were to have the money that upon account should bee due, and then part with the possession and re-assure. But though the money reported, being 5000 li. and more is not paid,( that not being the third part of what is really due) yet possession is taken away contrary to the very Decree, signed, and enrolled, which is very unusual and scarce to bee matched with a president, especially the Defendants being in no default, but having given security as the Decree directs, yet by Order subsequent to the Decree, the security discharged, and possession given away, so as the Defendants are without remedy, which is the more strange, in respect, as they conceive a Trustee or Mortgagee that is in possession is not in Equity, to part with the possession till the money due be paid. And the proceedings were very strict, and the usual liberty of Examination not admitted. The Defendants therefore humbly propose that for their relief in Justice, these things may be done. 1 THat the first Decree in Court signed, and enrolled may stand, and that their Interests that claim under it as purchasers may be held and enjoyed. 2 That nothing be demanded from them but the purchase money, which they are ready to give clear satisfaction that it is all paid. 3 That the former Decree that hath been executed, may not be reversed, or avoided but by Bill of Renew, & not by an original bill brought by one that was no party. 4 That the precedent estates ought not to be questioned being absolute, and settled upon just and valuable considerations, precedent in time, to the practise that is pretended. 5 That the accounts( if any be) should not bee of any other estate then what was conveyed, which was of Reversions, not of Lands in possession, when the same fell, and not before. 6 That the Defendants being Heirs and assigns of Purchasers under the Decree of the Court, ought not to bee questioned after three and twenty yeers and more, no question being made till the estates fell. 7 And if there were any ground to have any re-assurance, or account( which they conceive ought not to bee) yet that the possession ought to bee restored to the Defendants, and not be taken from them, till all the money and damages, which was really due, and disbursed, be paid. An Epitome of the whole Case stated. SIR, Edward clear Tenant for life of part, the Reversion to Sir Hen. clear, mortgage part of the Lands held in Fee-simple, and charged the same with a jointure, and with Rents for two several lives, and was indebted by Mortgages, Statute, and otherwise, for which the Lady Moundford, and Joh. Smith Esq. were bound. By dead enrolled for 10000 li. mentioned to be paid, bargains, and sels to Sir Hen. Bedingfield, and others, and their Heires, and by a dead dated at the same time, the Trust is declared, that the Lands should be sold at the best value within two yeers, and that with the Rents, Profits, and Purchase-money, debts should be paid, and 3000 li. raised for his Lady in lieu of her jointure, and the over-plus to come to the heir, the plaintiff Abigail. The Trustees endeavour to sell, but cannot. Some Creditors desire to purchase, but in respect of encumbrances will not give so much, as Sir Hen. clear estimates it to be in value. The Trustees were loathe to sell at any lower value. Smith a Creditor for 400 li. purchaseth a Lease from Sir Edw. clear for forty yeers, if Sir Edward so long live, at 200 li. per annum the Lands being of better value. The Lady Moundford, Smith, and other Creditors, prefer a Bill into Chancery against Sir Hen. Bedingfield, and the other Trustees, and against Tho. Holl to have the Land sold according to the Trust. The Trustees answer and confess the trust, and set forth the reason why they sell not, because of the disproportion of the value, but were willing to do what the Court should direct, and Holl answered. The cause was heard, and a Commission directed to Gentlemen of credit to examine the valves of the Lands, the Debts, and encumbrances, and to procure a Purchasor. Who by force of the Commission, examine and certify the great charges, and valves, and that in respect of the encumbrances, they could not procure a purchasor; And The 25. of April, 3. Car. It was decreed that the Lands should be sold by the Trustees, and the Decree is enrolled 11▪ of May following. There was a Reference to a Judge to examine the valves and debts, and to think of a course whereby the trust might bee performed, and the Decree be executed. The Judge certifies 4000 li. the best value, and that Smith, and Holl agreed to purchase, and certifies how the money should be paid, and his certificate is confirmed. In Aug. 31. 4 Car. The Trustees convey to Aldridge, Fountain, and Southerton, &c. persons trusted for Holl, Smith, Awcocke, and they pay the purchase money. The estates for lives determine. There was a Bill in the Court of Wards; And A Bill in Chancery was preferred by the heir of Sir Hen. clear against the Defendants, upon a pretence that Holl and Smith were parties to the procuring of the dead, and gained the estate at an undervalue and to have an account, and a re-assurance. The Defendants set forth the truth of the Case and deny all fraud and practise. The Cause coming to the hearing( and the Court not being full) it was decreed that the Defendants should account, and be reimbursed the money that Holl and Smith had really disbursed or was due, and upon payment should re-assure; But upon security to answer mean profits should keep the possession. Or if they refuse, then the plaintiff upon security to pay, what upon account should bee due to the Defendants, shall have the possession. The Defendants give Security. Its reported by Mr. Rich 5000 li. due to the Defendants, and yet the security by them put in is discharged, and no security put in by the Plaintiffs, nor money paid, and yet the Plaintiffs are put into possession by the Order of the Court. And a direction is given to the Referees that take the account, that the Defendants shall account for the profits received, during the continuance of the particular interests, purchased in 1624, and 1628. from Sir Edw. clear, and Dame Merriel clear Tenants for life. The Defendants are Heires and assigns of purchaser that claim from the Trustees, under the Decree of the Court, made above twenty yeares before this last decree, and their contracts warranted by certificate of a Judge and order of the Court. The consideration they paid was as much as the lands were worth considering the encumbrances, charges and particular estates in being. The decree and sale that was made 1628 were just to be done now, if things were now in the same condition as then they were. Yet by the decree of the Court of Wards a third part was taken away during the Wards minority, which made the bargain prejudicial to the Purchasor, when as the value of the whole was but 4000 li. Yet after full age the plaintiffs kept possession of a third part. And notwithstanding there is due 5000 li. and twice as much more upon a faire account( just liberty of examining witnesses being admitted) will be found due to the Defendants, yet no money is paid, nor security given; but possession of the whole is taken away contrary to the first and last Decree in the Case. FINIS.