Cresset filed a General Replication A Subpoena to rejoin returnable immediate was awarded against the Lord Roberts and the Cause to be heard in Easter-Term unless cause shewn first general Seal The Lord Roberts served therewith Cresset filed Interrogatories and proceeded to examine Witnesses to prove all the matters of his Bill which by Lord Roberts his Answer he was forced to do and hath examined all the Persons of whom he borrowed Money for Mr. Roberts to prove the same Ordered That the said Cresset examine the Defendant Henry Wynn as a witness in this Cause de bene esse No cause shewn against going to hearing as by Certificate appeared The Order of the 31. March made absolute and the Cause ordered to be set down Cresset's Counsel attended but no cause against the Order of 31 March was shewn of which taking Certificate the cause was set down to be heard the 17 May 1669. Sub poena's to hear Judgment returnable the 15th of May were taken out and all the Defendants served therewith Lord Roberts moved for further time to examine his Witnesses without giving notice upon which Motions further time was given the Subpoena returnable immediate to rejoin set aside and the said Cresset Forced to serve the Lord Roberts and all other the Defendants de Novo to rejoin Rules given to rejoin which all Defendants but Lord Roberts did comply with First Rule given for Publication Lord Roberts Craves a Commission to examine Witnesses into Cornwall The first Rule had been out and then no Commission could have been granted so that delay to the last minute was used Cresset moved that a short time might be appointed for executing the said Commission and Publication to pass well knowing there could be no material Witnesses to examine but what were in Town and therefore proposed in Court First That if Lord Roberts would set down in writing what he would examine unto Cresset would consent to admit it at hearing or send down a Commission execute the same and return it so as to bring the cause to hearing in Trinity Term. Secondly If Lord Roberts would put in such an Answer as the other Defendants had done and had promised he should do then Cresset would wave his Depositions taken and examine no more but go to hearing upon Bill and Answer Thirdly If Lord Roberts would furnish Cresset with 3500 l. to pay his Debts he would consent to account again to any Person his Lordship should appoint and stay two or three years for the rest of his Money his Lordship securing what should appear to be due above the said 3500 l. which last offer was often made before the Suit began in hope to have preserved Bodwels Estate from Sale The Court ordered Mr. Serjeant Maynard to attend his Lordship acquaint him with these Offers which to the Court seemed fair his Lordships Answer was desired the Cause declared not fit to be delayed but ordered to be heard the latter end of the then next Trinity Term. Mr. Serjeant Maynard attended Lord Roberts with the said Order but no Answer returned only that day Lord Roberts named Commissioners into Cornwall and Craved two Commissions more one into Carnarvanshire the other into Anglesey Cresset gave Commissioners names into all three Counties and struck Commissioners desired the Defendants Clerk so to do also but could not obtain the same Cresset moved the Court to call upon Serjeant Maynard for to give the Lord Robert his Answer to the Propositions aforesaid and to appoint a short time and certain place to execute the Commissions and order the Cause to be heard in Trinity Term following The Lord Roberts his Answer was that he could not go to hearing till he had examined his Witnesses unless Cresset would admit that Mr. Roberts had received the whole 5000 l. in question out of the profits of Mr. Bodwell's Estate prayed time for such Examination till Michaelmas Term. Whereupon the said Cressets Councel offered to allow that Mr. Roberts had received all the Rents except of his Mothers Jointure that had grown due since Bodwells death and if the Court at the hearing thought fit that should be deducted out of the 5000 l. in Question then would consent to examine the Quantum Secondly The Court was informed that Richard Edwards who is and then was the Bailiff that let set and received the Rents of all Bodwell's Estate was then in Court and had been examined by Cresset to know what Mr. Roberts had received and was only able to prove the same and therefore his Lordship needed no Commission Thirdly It was also insisted on that the Lord Roberts knew of the Assignment to Cresset yet suffered Mr. Roberts to receive the profits of the Estate delays the hearing puts no stop to the Receipts and endeavours to deduct what is received out of Cresset's 5000 l. Fourthly Satisfied the Court that the Commissions ought to be made returnable second return of the then next Trinity Term at which time the said Commissions were ordered to be made returnable Cresset moved for the carriage of the Commissions which by the course of the Court he ought to have had but the same was denied The Commissions were returnable and then the last Rule for Publication was given The Rule was out and Publication by the course of the Court passed but on that day Lord Roberts gave notice to move for New Commissions Whereupon Cresset with his Counsel waited six days together to defend the said motion but the same was never made until Being the last day of the Term the Lord Roberts Councel when Cresset's were most of them absent and without their Instructions moved Whereupon it was Ordered That Lord Roberts should renew the Commissions execute them at time and place to be appointed by the Six Clerks return them so as that Publication should pass at Michaelmas and the Cause be heard in Michaelmas Term 1669. This ex parte First General Seal Cresset moved against New Commissions for that Publication was past duly and no Affidavit made that Lord Roberts had not seen the Depositions or that he had any material witnesses to examine both which it was prayed might be made before any new Commission issued and that Cresset might carry the Commission if any must go it being his due according to the course of the Court. All these things were denied Commissions were granted and made out time and place to execute them was appointed by Lord Roberts Ordered that the Cause be set down to be heard in Michaelmas Term next before Publication pass to the end the Defendants may be served to hear Judgment before Priviledg of Parliament should come in The Cause set down to be heard 25 October 1669. All the Defendants served to hear Judgment The Commission was executed in Carnarvanshire where were examined no Witnesses that did any advantage to the Defendants save only Richard Edwards that was in Court when the Commission was moved for and had been examined to and proved the same
thereunto he would proceed to hear and determine the Cause Cresset having offered to wave Interest might not the L. Keeper as well have setled it so now as to discharge him from his offer put him to 12 l. charges and then take away his Interest without his consent and against the opinion of all the Judges as by the following order he did do Cresset's Counsel was again Fee'd and attended and the Lord Roberts not complying with the Offer the Lord Keeper discharged the said Cresset from the same and proceeded to hearing but after a full hearing when ready as supposed to give Judgment upon the earnest importunity of the Lord Roberts his Counsel his Lordship deferred giving Judgment till the 8th of November 1670. when he declared he would desire the Assistance of some of the Judges This Order Cresset could not get passed till 6 November 1670. when Lord Robert's Sollicitor would not let that Declaration concerning the Assistance of the Judges be put into the same of which by Petition the 7th of November Cresset gave intimation to his Lordship and prayed Judges might be called to Assist him Nevertheless The Lord Keeper heard the Cause upon the Plea and Demurrer aforesaid without any Judges and without over-ruling the Plea and Demurrer both which to this day stand good fell upon the Merits of the Cause for which Cresset's Counsel was not prepared and reversed so much of the Decree as concerned selling Land to pay Interest but confirmed the Decree in all other points and ordered an Account to be taken of all the profits of Bodvells Estate from the time of his death and decreed Cresset to find a Purchaser that should buy not only Land for payment of his own Debt but also so much as should raise Money to pay all Bodvells Debts and Funeral-charges mentioned in the aforesaid Report of the 11. February 1669. and which were not paid or said therein to be secured by Mr. Roberts The Master to sell the Land for the most he could get agree conveyances and appoint a short time for sealing the same and if not sealed by the time appointed then the Trustees to pay Interest from the time of tendering a Purchaser This Order could not begot passed till 17. December 1670. when my Lord was attended to settle the same The Reference was transferred to Sir John Coell Sir Walter Littleton being dead and his Lordship ordered that Cresset should have Interest for his whole 5000 l. and that the Deeds concerning the Land that should be sold should be delivered to the Purchaser Sir John Coell made his Report that he had heard both sides several days and found by the Account annexed Copies whereof Lord Roberts his Agents had were heard thereupon and took no exception unto that there was sufficient raised to pay all Bodvells Debts and Funeral-charges and all the Arrears of Hern's Annuity due at Christmas then last past with a Surplusage of 791 l. which he allowed Mr. Roberts for Costs and this by the Profits due from the time of Bodwells death till August 1670. And that Cresset had produced a Purchaser to buy the Lands in the Shcedule annexed whereof Bodvell Seat and Lanigred Park was a Part that offered 13 years Purchase for what was in possession 7 years for Reversion after one Life 5 for Reversion after two lives and pressed him to sell But upon Lord Roberts his Council's desire to have ten days time to see if his Lordship would pay the Money or produce a Purchaser to give more than Cressets Purchaser offered or to buy other Lands he had given him 14 days time when if the money were not paid or other Purchasers to buy other Land or give more for these Lands produced he would proceed to sell and settle the Conveyances Note By Sir Walter Littletons Report dated 11 Feb. 1669. It appears they designed that Lanigred Park should be sold and Bodvell was put in by Cresset First because there was no other Estate in possession that was free from Incumbrances Secondly in hopes the Trustees would pay the Money decreed rather then suffer the Principal Seat to be Sold Cresset neither designing nor desiring to have it as by the following account will appear Sir John Coell makes a Second Report and certifies that the 20 January Lord Roberts his Council attended him told him his Lordship was loth to have Bodvells house sold but had given no order to pay any money or could produce any other Purchaser either to buy other Land or give more for the Lands mentioned in his former Report but certifies further that upon the great Importunity of Lord Roberts his Council Cresset offered for the Preservation of the Estate that if the Lord Roberts would pay him 1000 l. the middle of Febr. and secure the rest with interest from the time the Court should direct to be paid at Midsummer the said Cresset would accept the same or if the Lord Roberts would clear Anglesey Lands from all Incumbrances as he proposed to Sir Walter Littleton and exchange those Lands in Jointure there and give Mrs. Bodwell Lands in Carnarvanshire for them he would buy the Lands in Anglesey and leave Bodvell which offer they prayed 14 days time for his Lordship to answer unto and did not doubt to receive the same which time was granted and elapsed and new Summons issued but the Defendants did not attend therefore he had sold the Lands in his former Report mentioned to the person and at the Prizes therein expressed and would settle Conveyances allow the same under his hand and appoint short time for the execution thereof These two Reports confirmed unless upon Notice Good cause within Eight days after should be shown to the Contrary The Defendants were served with notice thereof Exceptions to the said Reports were filed First because the Master ought to have Reported what or how much had been Received before the Act and what and how much since the Act of Parliament and of whom and for what Secondly Because the Master appointed 5000 l. of the Purchase-Money to be paid to the said Cresset intimating that the said Mr. having reported a Surplusage received over and above what would pay Bodvells debts and funeral-charge he should have said how much such Surplusage was and in whose hands and ordered the same to have been paid in part of the 5000 l. to have saved so much of the Estate from sale and the Mr. ought not to have allowed of a Purchaser the Lands being much undervalued no allowance made for 2000 l. worth of Wood nor care taken for the Preservation of the Principal Seat of the Family and place of Residence of the Wife and Children of the said Rob. Roberts who on the purchase will be turned out of doors Upon arguing the said Exceptions by Councel on both sides before the Lord Keeper his Lordship held them insufficient and over-ruled the same and confirmed the Reports all the Exceptions being grounded upon Mistakes and
fully Answered by the Reports themselves and the Court confirmed the Sale But with this that the Mr. should examine whether there were any Gross Timber on Bodwells Demesnes and not valued to or paid for by the Purchaser if there were then Lord Roberts to have time till Midsummer to cut it and carry it away leaving sufficient boots of all sorts and for the Ornament and defence of the Mansion house It was ordered that the said Cresset should have Interest for 5000 l. from the time when he first tendred his Purchaser That the writings concerning the Lands sold alone and true Copies of such as concern the Lands sold with others be delivered to the Purchaser And Sir John Coell to compute the Interest Note the Purchaser Robert Stapleton Esq was a Trustee for Cresset and settle the payments thereof according to the Decree of the 8. of November 1699. and the Purchaser Decreed the possession of the Lands sold and to enjoy the same to him and his Heirs and Assignees for ever against the Lord Roberts and all other the Defendants in the causes he paying the said Cresset 5000 l. out of the purchase Money and the other 126 l. remained c. thereof as Sir John Coell should direct All these Orders Decrees and Reports Accounts and Rentalls being signed and Inrolled upon such mature deliberation as aforesaid John Lord Roberts Sir Richard and Henry Wynn Esq appealed from them to the house of Lords and for ground of Relief insisted upon the same Reasons contained in the Exceptions to Sir John Coells Report Cresset Answered the said Appeal setting forth the matters aforesaid The Cause was fully heard at the bar and dismiss't Nemine Contradicente with this special direction that it should be without prejudice to the said Cressets going back into Chancery for his Costs of Suit which by the Decree of the 8. of November 1669 was reserved to the Consideration of that Court. Note Cresset exhibited a Counter Appeal to have had Interest money from the time of Mr. Bodwells death according to the Decree which Appeal for quietness sake he waved at the Bar and would not suffer to be opened Thereupon that also was dismiss't After these dismissions Sir John Coell was daily addressed unto to settle Conveyances and compute and set out Lands for Interest according to the order of the 6 March 1670. who after above 20 times being attended by both Sides made the Report following First that there was no Gross Timber on Bodvells demesnes but what was necessary for Boots and Ornament to the house and that Cresset had allowed for it in his former purchase Secondly that he had computed Interest for the 5000 l. for one year which comes to 300 l. and set out and sold Land of 13 l. 31 s. 4 d. per annum and the 126 l. above the 5000 l. in the last purchase Money in Satisfaction for the same Thirdly that he had allowed of Conveyances according to the Lord Roberts and the other Defendants Council's own amendments and appointed them to be executed by John Lord Roberts Sir Richard Wynn Henry Wynn Robert and Sarah Roberts when tendred to them and Sarah Roberts and her Husband to levy a Fine of the Land sold to the use of the aforesaid Robert Stapleton and his Heirs for ever and all the Defendants to make further Assurance within 7 years if needful for ascertaining the Title and freeing the Lands sold from Bodvells Incumbrances And that Lanigred Park should be liable after Mrs. Bodvells life to pay to Joseph Hern or his Assignes during his wifes life what can be made thereof towards raising the 100 l. per annum Annuity which that Park and three Townships in Carnarvanshire are obliged to pay And that all the Arrears of the said 100 l. per annum which should grow due before Mrs. Bodvell's death should be paid out of the said Townships and Lanigred Park not be liable to the same c. This Report confirmed unless Cause within 6 days after Notice be shown to the contrary Notice being given they desired some Amendments in the Report and Conveyance and then promised to consent to confirm it which amendments Cresset agreed unto The last Order made Absolute and the Report confirmed For the Satisfaction of the Court Sir John Coell upon an Order to him directed Reports as followeth That all along Pending the Reference before him both before and after the Appeal to Parliament and after the dismission out of Parliament when he was attended to settle Conveyances Cresset did in his presence offer the Defendants that if they would set out Lands in lieu of Bodvell of the same yearly value and sell the other Lands in his purchase for the value they were let for to preserve Bodvell house and demesnes from Sale and to keep the Estate in Carnarvanshire intire He would exchange the said Bodvell house for such other Lands as they should set out but that offer would not be accepted nor would they set out other Lands whereupon the Conveyances passed as the Defendant amended them The Report was made and entred after which some Amendments were desired to be made And the Defendants Councel and their Agents agreed if such Amendments were made they would not oppose the Confirmation of the Report Whereupon Cresset consented and the Report was sent for from of the file and with the Conveyances were amended in all points desired The Registers certifie no Exceptions were filed to the aforesaid Reports The Registers make the like Certificate Whereupon the Decree and Report were drawn up signed and enrolled and the Defendants served with a writ of Execution thereof and desired to seal which none would do but Henry Wynn Esq Mr. Roberts who all along had hindred Bodvell from being left out of the Conveyances and promised to seal and his Lady declared they would not seal till my Lord Roberts had sealed A Messenger was sent express being an Atturney at Law to serve John Lord Roberts in Cornwall but was not admitted to his Lordship He tendred the Writ of Execution and Conveyances in his Hall but no servant would receive them Complaint thereof being made to the Court it was ordered That serving Lord Roberts Clerk in Court should be deemed a good service of him and that all Process of contempt returnable immediate should issue against Robert and Sarah Roberts to enforce them to execute the Conveyances And that an Injunction should issue against the Tenants to enjoyn them to attorn and pay their Rents to Stapleton And it was further ordered That Sir John Coel should tax Cresset's Costs of Suit unless cause shown the then next third general Seal Lord Roberts Councel desiring to be heard to that point only Lord Roberts his Clerk in Court was served with the Decree and an Attachment returnable immediate issued against Robert and Sarah Roberts for their contempts Cresset having attended with Councel three days of motions upon notice given him that the Lord
in Court before The Commission was executed in Cornwal and there not one Witness examined to any the matters in Issue or concerning this cause so that the said Commissions were only for delay and to put the said Cresset to unnecessary charges Lord Robert Agent gave notice to move the Court on the 23. of October to put off the hearing for three weeks on pretence that the Commission executed the 24 August was not returned which Commission was in his Lordships Kinsman's hand and kept out all that time Cresset waited with his Counsel to defend the Motion but none was made Thereupon he fee'd and instructed his Counsel for the hearing on Monday the 25 of October 1669. The Cause came to hearing but upon Serjeant Fountains Motion the same was put off on pretence the said Commission was not returned and this done without giving the said Cresset his Costs for his Counsel attending that day which was never done to any before The Cause was heard by Mr. Justice Rainsford who decreed Land to be sold to pay the said Cresset 5000 l. in question with damages for the same from the time it should have been paid directed an Account to be taken of what Profits was received of Bodwel's Estate since the Act of Parliament those to go in first place to payment of Bodwel's Debts and Funeral-charges when those paid if a Surplusage remain the Trustees to pay the same to Cresset in part of his 5000 l. and damages and sell Land for the Remainder the Master to compute Interest set out Land to be sold appoint time for Sale if not sold by time appointed Cresset to produce a Purchaser and the Master to sell for the most that can be gotten the Trustees to convey to such Purchaser who was thereby decreed to hold and enjoy the Lands bought by them against the Trustees and all the Defendants and if any Debts or Funeral-charges remained unpaid that not to hinder selling to pay Cressets 5000 l. with Interest there appearing Land sufficient to pay all and it was reserved to the Court to consider of the said Cresset's cost to be given him Lord Roberts his Agent petition'd Lord Keeper against the Decree as to the point of Interest alleadging that by the Act payment of Interest was not warranted and that there was but 4000 l. due to Cresset the other 1000 l. was given for Sollicitation Ordered that the Register attend the Judge to settle the Decree and in the mean time the Inrolment staid This Petition was presented after the Order was setled and entred and Sir Walter Littleton been twice attended and never objected against till after the Judge was gone into Northamptonshire so that it appeared only a Design for delay For upon this Order though no proceeding were stopt yet the Defendants refused to attend the Master Whereupon Cresset petitioned the Lord Keeper to hear the Cause himself as to that point of Interest and offered to abide his Judgment but his Lordship refused so to do as he did to hear the Cause at first Mr Justice Rainsford was attended by Councel on both sides with the Register when Lord Roberts his Sollicitor put off the hearing till next day Lord Robert's Agent never came till after the time appointed when he brought Mr. Justice Ellis but the Judge was gone abroad having suspended the giving Judgment till 26 January 1669. Lord Roberts nor none in his behalf attended as they promised the Judge to do whereupon he confirmed his Decree but ordered it to be stayed a day or two to see if the Lord Robert's Agents would attend of which he caused notice to be given None appearing for the Defendants the Judge confirmed his Decree and ordered it to be entred and signed it himself All these times Cresset attended with Councel at great Charge Lord Keeper Signed the Decree in the Lord Roberts his Agents presence who complaining that he was surprized his Lordship ordered both sides to go back to the Judge upon that Point of Interest in the mean time the Decree to be deposited in Mr. Dugdale's hand The Judg being attended by both sides declared the Decree to be according to his sense and nothing but what was just but finding what troubles the said Cresset was in advised him to let the Decree be altered and made to pay Interest only for 4000 l. because in the Account there was mention of 1000 l. given for 3 years and halfs Sollicitation and such Interest to begin from the time of the Act of Parliament only which done there could be no manner of Objection made against it by the Lord Roberts but declared he would not make that alteration without the said Cressets consent this in the Presence of Mr. Justice Ellis to which Proposition Cresset consented the Decree was accordingly amended signed and enrolled and Sir Walter Littleton attended who took the Accompt stated Cresset's 5000 l. principal Money decreed him and the Interest thereof to be 5820 l. appointed the same to be paid the first of July 1670 and reported no surplusage of Rents or Profits in the Trustees hands and at the Lord Roberts Councel's instance the whole Estate was set out to be sold a particular whereof was brought in by Richard Edwards the Bayliff with the Names of every Tenant and the Rents they paid This when brought in was brought in at much greater rates then let for on purpose as is conceived to deceive a Purchaser whereupon he was ordred to be examined upon Oath and upon his Examination he put in the Margent the true values of every Tenement these Lands or so much thereof as would raise 5820 l. was ordered to be sold The reason why as the Master in his Report declares he did not set out particular Lands for the said 5820 l. at that time was because the Lord Roberts Counsel insisted That if the Lands free from Incumbrances should be sold it would greatly prejudice the Estate and therefore they hoped to exchange the Lands in Joynture in Anglesey whereof Llanigred Park was a part for Lands in Carnarvanshire and so to sell all Anglesey Lands and preserve the Infants Estate in Carnarvanshire being the best part thereof entire and sell as little reversion as could be Note During this Reference Mr. Roberts who had all along before seemed to consent to sell Land to pay the 5000 l. and Interest and had told and writ Cresset word that he being in Possession and receiving the Profits of Bodvell's Estate should not hurt him for that he received the same upon Accompt of an Assignment of a Sequestration from his Mother in Law which she had for Arrears of Ally-money pretended to be 6000 l. but assigned for 3000 l. secretly writ the following Letter to Mr. Hart who was the Lord Roberts's Sollicitor and he brought the same to Sir Walter Littleton who gave it to Cresset 1 January 1669. Mr. HART MR. Vermuyden informs me that Mr. Cresset has preferred before the Master of Chancery an Accompt
for his three years and half time then wholly spent in Mr. Roberts his Service and the aforesaid Judgment of 6000 l. was made liable also to pay the same So that the totall sum then due from the said Roberts and secured as aforesaid was 5070 l. 8 s. 10 d. Of all which Sums or for his eight years loss of time since or his sufferings by sale of his Estate at under-rates to pay Mr. Roberts his Debts contracted as aforesaid or for the loss of his Credit by being sued for him and his Practice Cresset could never get one penny Add to this 5070 l. 8 s. 10. the Interest thereof for eight years and half 2586 l. The Money lent and laid out for Roberts between the 6 of July and 26 of Febr. 1666 250 l. And the Interest thereof for eight years 120 l. Cressets charges he hath been put to in defending himself at Law against Mr. Roberts Creditors 300 l. And the charges of this Suit in Chancery which hath cost 1200 l. Makes the whole Demand to be 9486 l. 8 s. 10 d. Besides the Interest of these last Summs expended in Law-suits and of the Money paid by Cresset to Mr. Roberts Creditors for Interest-money Procuration Continuation-Money and for altering Securities since the 6th of July 1666 all which ought to be allowed Cresset it being principal out of his Pocket and being computed amounts to about 600 l. And all that Cresset hath received towards satisfaction of these Demands out of the profits of the Lands sold amounteth not to above 760 l. Note That the aforesaid 4070 l. and 250 l. Principle-money was borrowed by Cresset for Mr. Roberts and he being bound with him for the same hath been forced to pay it together with Interest and Charges to the persons of whom it was borrowed to wit Note As Money was borrowed Mr. Roberts had part of it and left the rest with Cresset to defray Charges which he himself saw disposed but Cresset kept the Accompt and from time to time gave him account thereof the which he examined and afterwards stated allowed and gave Releases upon the same so that Cresset hath no Accompt with Roberts save to have the Money he was bound with him for and the Interest and his Charges of Suits that he hath paid and been at upon his Accompt Of Mr. John Jones in May 1663 800 l. Of Mr. Ralph Suckly in Aug. 1663 1000 l. Of Sir Jeremy Whichcot in Febr. 1663 500 l. Of Mr. Edward Rudg Merchant in 1664 500 l. Of Sir William Roberts Daughter 500 l. Of Serjeant Maynard 200 l. Of Mr. Tratford of the Inner Temple 300 l. Of Mr. Caesar 500 l. In all 4300 l. Which Summs were not all spent in the charges of the Suits For the charges of seven Suits in Chancery two in the Prerogative-Court two Appeals to the Lords-house and many Suits at common Law did not cost above 2650 l. which considering what the transactions of those Causes were was less by far than his own Councel thought it had cost but there was paid 185 l. 16 s. 11 d. for Mr. Bodvell's Funeral-charges 300 l. For Arrears of Ally-money due to his Wife 643 l. 4 s. 10 d. Mr. Roberts had himself of the Money borrowed 80 l. 5 s. 6 d. of it was allowed for procuration and continuation Money and 466 l. was paid for Interest of the Summs borrowed from the time of their being lent till the 6th of July 1666. Note that in February 1666 when the Act of Parliament passed to null Wynn's Pretended Will and vest Bodvell's Estate in the Trustees aforesaid 5400 l. would have paid all Cresset's Debt the charges of the Suits and the several Sums laid out for paid to him as aforesaid And if the Trustees according to the trust reposed in them by that Act had so soon as the Bill passed sold Lands raised 5000 l. and paid it to Cresset Cresset's Debt had been satisfied all but 400 l. which he would have been content to have staid for or to have lost so as the Estate might have been preserved from sale but they neglecting to do the same put Cresset to vast charges and suffered the Interest-money to rise high therefore it is their own fault that the Accompt now is so great and ought not to be charged upon Cresset as an extravagant demand which Mr. Roberts because he cannot perswade Cresset now to take 5000 l. for the 5000 l. which should have been paid in 1666 and the Interest thereof and his charges as aforesaid most unkindly endeavours to do which 5000 l. Cresset hath no reason to take considering that the payment of 5000 l. now were not to pay above 1700 l. inasmuch as the Interest comes to 2586 l. the charges 1500 l. besides his trouble and loss of time which is considerable which Summs put together makes in all 9156 l. so that there having been but 760 l. received by profits of the Land there remains of the said 9156 due 8386 which makes it clear that to pay now 5000 l. is not to pay 1700 l. principal Money as aforesaid Nevertheless the said Cresset by his said answer under his hand delivered to his Majesty in Council offered again to refer himself to the determination of the Right Honourable the now Lord Keeper or Sir William Jones or Sir Francis Winington or to any other honest or understanding person his Majesty should name provided such Referee might be enjoyned to make his Award in some short time and that security be given by the said Roberts to perform that Award before the end of Hillary Term then next ensuing and therefore prayed if this would not satisfy that his deeds might be executed or leave given to attach Mr. Roberts and his Lady as by his former Petition was desired humbly offering then to consideration as he doth now First whether Cresset could have done more than he hath done either in getting Bodvells Estate for Mr. Roberts or endeavouring to preserve it to him Secondly whether after Land was decreed to be sold and Cresset compelled to find a purchaser and by Reason of the Defendants refusing to set out Lands it was put upon him to say what he would buy and he had made choise of Bodvell for the reasons aforesaid Cresset could have done more than he did both before and after the sale and during the Appeal to Parliament and afterwards in Chancery before the Conveyances were executed to preserve Bodvel's demesnes to them As also whether he could have done more since his Conveyances were Executed to let them have it again than he hath done by making the several offers and references aforesaid to persons of his own Nomination and Relations Thirdly whether after accounts delivered stated allowed and Releases given upon them in 1663 1664 1665 and 1666. as aforesaid and security given for the moneys due upon those accounts and after Recovering in Chancery upon those Securities where the said Roberts and his Lady by answer swore the said accounts to be Just and desired Lands might be sold to satisfy the same And whether after such decreed confirmed upon a Bill of Re-view and affirmed by Judgment in the house of Lords upon an Appeal and no exceptions taken to the Accounts in any of these Courts where if there had been any occasion they might properly have complained and have received relief The said Roberts and Sarah should now be admitted to Ravill into accounts so solemnly stated or to alleage against their own Oaths their acts under their hand seals and their continued declarations to all persons upon all occasions of the said Cressets Integrity and Justice towards them meerly with design to take away his reputation which is his life whose Estate they have made themselves Masters of by means as aforesaid and that in a place where if there were just cause offered they could receive no Relief Nevertheless Cresset submitted to his Majesties and the pleasure of that honourable Board praying to be heard offering to make good every Parragraph of that Answer As also that the Land sold is not 700 l. per Annum nor any more than 538 l. though sold to him at 590 l. per Annum and not above 200 l. a year was in possession when sold and 180 a year come into possession by Mrs. Vermudens death the rest remaining Reversion to this day Upon reading part of the said Answer It was ordered by his Majesty in Council that Mr. Roberts should have a Copy thereof and forthwith put in his Reply thereunto Cresset served Mr. Roberts with a Copy of that Order and his said Answer Mr. Roberts not replying Cresset petitioned again for a day of hearing and it was ordered that the Cause should be heard the 12. of the said moneth and both parties then to Attend He was served with that order Nevertheless Mr. Roberts petitioned to delay the hearing a week longer upon pretences that he had not timely Notice thereof And it was then ordered that the Cause should be peremptorily heard the 19 of February 1674. The cause being heard his Majesty was graciously pleased to declare that if Mr. Roberts do not Satisfy Cresset before the end of Easter Term 1675. he could not longer protect him against Justice and the Law In the mean time Mr. Roberts and his Lady declared they will never Seal the Conveyances in question but rather go beyond Sea and there live till they enforce Cresset to depart with his right at their own rates the Consequence whereof if Cresset for want of Relief should be compelled so to do will be that after eleven years Troubles Suits delays and vast Charges having parted with his own Estate to purchase Bodvells Estate for them he must inevitably ruin himself and Family Vpon all which Consideration be most humbly Prays That a short Act may be passed for the Confirmation of the Decrees Sale and Conveyances aforesaid and to Confirm the Estate sold to the Purchaser his Heirs and his Assigns for ever The CASE and GRIEVANCE of John Cresset Gentleman Humbly presented to Parliament for Relief
in my Name I do hereby assure you he never consulted me in the Case nor had any direction from me therein as I am ready to make Oath wherefore I do utterly protest against it And as to my Receipts of all or any part of Bodvell's Estate I do profess I never did it to pay Funeral Charges Note this 5000 l. was assigned to Cresset on the 10. of Mar. 1663. nor upon any such like trick but having by Mr. Bodvell's deed of Settlement in Marriage a Title to 5000 l. portion I thought my self legally entituled to receive the Rents even before the pretended Will was set aside and since the Act of Parliament mentions that 5000 l. I continued the same and hope that no Court of Equity will ever make me an Accomptant to the Trustees since I had a legal interest to such a summ as will clear me upon the ballance of my Receipts with what was my due As to any Defalcations I demand not one penny for I received many Debts due to Mr. Bodvell and Arrears of Rent Mrs. Vermuyden had 600 l. per Annum and yet Mr. Roberts to lessen Cresset's Receipts would charge himself with the Receipt of all the Estate and therefore charge my self with the Receipt of the whole Estate in possession ever since the Act of Parliament passed being three years this Christmas I here send you Mr. Cresset's Defeazance of which I must give you thus the History My Wife and I sealed an Assignment of the Portion to satisfie him for 2400 l. then laid out I signed several times as he laid out but my Wife signed only the first time Then at Oxford when the Parliament sate I gave him a Judgment as farther security whereof this is the Defeazance and methinks thereby he can claim but 3000 l. for though it be said that to acquit my self from the 6000 l. I must not only pay 3000 l. but perform certain Articles and Covenants relating to the Deed therein mentioned Note It is 3400 l. yet I do suppose he concluded himself thereby to have only remedy upon the Judgment in case such Covenants are not performed and therefore Bodvell's Estate not liable at all to pay it or but the remainder of the Portion in my hands which accounting my Receipts as aforesaid cannot be more than 3000 l. I think I am your affectionate friend R. ROBERTS Sir Walter Littleton made the aforesaid Report and it was ordered to be confirmed unless Cause All Defendants served with that Order The Report upon hearing of Councel of both sides was confirmed and afterwards signed and enrolled Lord Roberts petitioned the Lord Keeper for a Bill of Review upon the same point concerning Interest which had been determined upon five hearings as aforesaid this contrary to the course of the Court was granted but from the sixth of March to the eighth of June following being three Months the order never drawn up or entred nor proceeded upon till When Cressets Money was neer the time of being paid to wit the first of July 1670 then a Bill of Review was exhibited and the only Errors assigned were First That Interest for 4000 l. was decreed and payment of Interest is not warranted by the Act. Secondly That the Act saith The 5000 l. in question should be paid after the Debt and Funeral Charges of Bodvell were paid and they appeared not to be paid so the 5000 l. not due Cresset put in his Plea and Demurer as followeth Demurred for that there was no error in Law in the body of the Decree whereupon a Bill of Review could be brought to ground a Reversal thereof Nor was there error so much as in fact or judgment in the body of the said Decree for that it might have stood with the Justice of the Court to have decreed Interest for the whole 5000 l. and not for 4000 l. only and that from the time the same was payable to Sarah Roberts and not from the time of the Act of Parliament only inasmuch as the said 5000 l. was not a Duty created by the Act of Parliament but directed by the said Act to be payed according to the Deed of 20 Febr. 1639 which made it a Debt payable when the said Sarah attained the age of 21 years or day of Marriage both which happened before Bodvell died And howbeit by the Act it was made payable to Sarah Roberts and that after Debts and Funerals paid yet that did not alter the said Cresset's title to the same nor ought it to hinder him from receiving the same before the payment of the Debts and Funerals for that in the Act there is a saving of all mens Rights and Interest either in Law or Equity and the said 5000 l. was Assigned to the said Cresset long before the said Act of Parliament and was the first debt upon the Estate And it was further pleaded that without paying Interest it was impossible to perform the Act of Parliament which enacts 5000 l. to be payed The Act was passed four years before that time the Interest came to 1200 l. besides all costs and charges in the recovering the same so that to pay 5000 l. then was not to pay above 3300 l. and the Trustees might delay payment till the whole Principal should be drown'd and the said Cresset only receive the Interest of his Money And that the Debts and Funerals were not paid ought not to hinder Payment of Cresset's 5000 l. for that the Trustees were intrusted to pay both them and the 5000 l. and by their own showing there is Estate enough so to do and the not paying them is latches in themselves whereof they ought to have no benefit Nor ought the Bill of Review to have been admitted in as much as there were not proper parties thereunto the Decree being against six Defendants five of which abided by the same and the sixth bringing the Bill of Review alone Nor ought such Bill of Review to be brought till the Decree be performed and the 5820 l. paid but not one penny thereof was either paid or secured therefore prayed a Dismission with full costs Ordered that this Plea and Demurrer be argued on the 8th of July 1670 the Plantiffs to have notice The Cause came on when Lord Roberts Agents moved to put off the hearing till after Michaelmas on pretence his Lordships Councel were out of Town when as Mr. Serjeant Maynard Mr. Collins and Mr. Colthrop were all in Court Cresset finding delay to be the only design did as he had many times before to his Lordships Agents done offer in Court to take his 5000 l. without Interest so it might be forthwith paid and Bodvell's Estate be preserved from sale therefore prayed that the hearing might go on his Councel being all fee'd The Lord Keeper declared Cresset's Proposition was honest and fair and ordered the Lord Roberts his Sollicitor to give his Lordship notice thereof and bring his Answer next day when if he did not agree
any other honest and understanding Person he or his Lady should name Note No 5000 l. was offered till the Estate came into possession In November 1675. Mr. Roberts told Cresset that if he would take five thousand pound not only for the Lands aforesaid but for all other the Debts due to him from him which was above two thousand five hundred pounds more and give up all his Securities that he had for the same and trust to his Honour to pay the rest when he was able then he should have it presently paid him otherwise declared he would do nothing this being unreasonable and unconscionable Cresset did not consent thereunto First because he could never find where any Money was or any Person that would pay it Secondly because there was not only above two thousand five hundred pound more due to him as aforesaid but the loss of his Practise Credit and Eleven years trouble and service ought also to be considered Thirdly for that the five thousand pound offered was less by three hundred pounds than he paid for the Lands alone in the year 1670 when they were most in Reversion besides the Charges of these Suits which hath cost him above twelve hundred pounds and the Interest of his Purchase-Money which comes to above twelve hundred pounds more so that in all the Land lies him Bona fide in at least seven thousand seven hundred pound and the Rents received is not above seven hundred and sixty pound therefore the offering five thousand pound is to offer One thousand nine hundred and forty pound less than really the Land lies him in Note This Petition Mr. Roberts was acquainted with had it shewn him and he amended it and it was delivered as he amended it Cresset finding no way of Accommodation of these matters Petition'd his Majesty in Council setting forth his Case and that Mr. Roberts for three years past had taken shelter in Whitehall against Law and Justice that if Whitehall should be a Sanctuary against all his Royal Process the end of the Law would be frustrated The Courts of Law and Equity rendred useless and all Judgments and Decrees of such Courts become insignificant pray'd therefore that Mr. Roberts might be ordered forthwith to Seal the Conveyances in Question or otherwise that he might have leave to attach him by a Serjâ—â—nt at Arms in Whitehall Upon reading of which Petition it was Ordered That his Majesties pleasure be declared to the said Mr. Roberts that he expects he should speedily take care to satisfie the Justice of the Petitioners Demands or return his Answer to that Board Mr. Roberts was served with the Order and the Petition it self but in stead of answering thereof he on the Exhibited a Petition against Cresset charging him with having given in dâ—ceitful Accounts and with demanding double his due and striving to defeat him of Seven hundred pound per annum of the best of his Estate and exacting of Eight thousand pound for Sollicitation c. by which Petition whereof not one single Paragraph was true it is presumed he designed if possible to have begot in his Majesty and that Honourable Bard such an ill Opinion of Cresset and his Cause as to have diverted them from doing or at least prevailed with them to have delayed Justice and certainly he could have 〈◊〉 other end considering that although upon the reading of the said Petition It was Ordered that Cresset should forthwith have a Copy of it and put in this Answer thereunto yet to his day Mr. Roberts hath never drawn up that Order nor did he ever give Cresset notice thereof or served him with any Copy as he ought to have done but the said Cresset having intitution thereof from others took a Copy at his own Charge and returned his Answer to that Honourable Board in writing wherein he set forth the substance of the matter aforesaid as also something to cleer the reason of his Demands and to vindicate himself from the false Aspersions by that Petition cast upon him of demanding Eight thousand pound for Sollicitation or unreasonable Charges for the Suits aforesaid this Answer was put in the 15 Jan. 1664. and therein He acknowledged his demanding above Eight thousand pound and gave the reasons of such his Demands to be as followeth He demands 2400 l. secured by Assignment of the two five thousand pound Portions aforesaid bearing date as in the Margent Note that in the said Assignment the said Roberts and Sarah his Wife Covenant that they would not receive any of the two five thousand pounds themselves but that the said Cresset should receive the same for his own use and first satisfy himself not only the 2400 l. aforesaid but also all such other summs as the said Cresset should lay out for or lend unto or become bound with him the said Robert Roberts for together with all such costs and dammages as he should be put unto concerning the same Cresset having before that time given in an account of Six hundred seventy and six pound more due to him from the said Roberts the said Roberts then allowed the same and by an indorsment on the back of the Assignment aforesaid made the said two five thousand pounds liable to pay the same The said Roberts allowed of a third account for four hundred and fourteen pounds 8 s. and 10 d. more and by an indorsement as aforesaid secured the same in manner as the 676 l. was and it being the Sickness year Cresset had from him a Release under hand Seal from being further called to an account for any of the aforesaid Sums And the said Cresset considering that the said Mr. Roberts was in the possession of Bodvells Estate and not knowing but that the Rents by him received might then after be deducted out of the two five thousand pounds assigned to him desired a further Security from him who thereupon by the advice of the Atturny General gave a Judgment of Six thousand pounds defeisanced for the payment of 3490 l. 8 s. and 10 d. then due as aforesaid in Aprill then next following and also to perform the Covenants of the aforesaid deed of Assignment which Cresset humbly conceives was but reasonable for him to ask and Roberts to give and not any exacting of a double security for the self-same sums of Money Upon a fourth account stated by Mr. Roberts and allowed of there appeared due more 580 l. for securing whereof by like indorsment upon the back of the aforesaid Assignment the two five thousand pounds therein mentioned was made liable Note Mr. Roberts promised to pay Cresset 1000 l. a year before And if he had paid it down when he secured it it would have been less by a 1000 l. than by his ordinary course of practise he might have got in that time without half the trouble he had in this cause or loss of Practise Credit or Estate as also to pay unto the said Cresset one thousand pound