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
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
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
Roberts would move against the Order of the 12th of July 1671 and no motion being made he then moved the Court and it was Ordered That tendering the Decree and Conveyances at the Lord Roberts house should be a good service upon his Lordship and if his Lordship did not seal then upon Affidavit thereof a Sequestration should issue without further motion against John Bodvell's Estate and a Writ of Assistance to put the Purchaser in possession of the Lands sold and that the Master should proceed to tax Cresset his Costs according to the course of the Court. A Proclamation of Rebellion issued against Robert and Sarah Roberts The Lord Roberts was attended in Cornwall by an express Messenger and then sealed the Conveyances which done Mr. Roberts and his Lady had the Conveyances tendered to them again to seal which they both refused to do on pretence that Bodvell's House and Demesnes were conveyed thereby Cresset went into Carnarvonshire to serve Sir Richard Wynn when he came there met with a Letter from Mr. Roberts conjuring the said Sir Richard not to seal which so far prevailed as that Sir Richard would not execute the said Deeds till Attachments were sent for from London and executed upon him which cost the said Cresset together with his Journey above 100 l. The Letter was as followeth SIR How my Father who occasioned all this sale and refused to let Mr. Cresset have 3000 l. worth of Land should now seal away the value of 8000 l. and of both the Mansion-houses with the best of all the Lands and the very name of the Family is a thing so unjust and shameful that it is the talk and wonder of every body you are the chief of my Wife's Family and if you now become the preserver of her and her Estate it will make the world honour you and us ever to serve you and be sure of this that at Michaelmas-Term next his Money shall be paid him and so you shall not have so much as the trouble of a Suit and it had been now ready if any one could but have expected such a compliance of my Father my Wife and I never shall seal and therefore think not Sir we can ever assent as you were informed We abhor to sell away the name of Bodvell My Wife gives you her humble service and thanks and both of us are obliged beyond expression of Your most humble Servant Cousin R. ROBERTS For Sir Richard Wynn Baronet at Gwidder in Carnarvonshire Cresset having a Coppy of the aforesaid Letter from Sir Richard Wynn immediately writ to London to Mr. Roberts who had assured him before his going out of Town that he would give him no hinderance in the Country In answer to which Letter Mr. Roberts writ to him dated the 29th of August 1671 wherein among other things he useth this Expression But since Sir Richard Wynn stops his hand upon my account I shall propose this to you that you press him not to seal for if I do not shortly either pay the whole summ of the Decree or for all the Carnarvonshire Lands I will be bound to joyn in the conveyance c. This you may consent to without prejudice c. A Commission of Rebellion Issued against the said Robert and Sarah Roberts Sir John Coel being attended to tax Costs according to the Order of the 26th of July the Defendants got time to move the Court to know whether Costs of the Appeal in Parliament should be taxed and they gave Cresset six several Notices to move the same at which times he attended with Councel at great charge but they never moved Whereupon Cresset moved to know his Lordships pleasure in that point when it was ordered that the Master should proceed to tax the Costs in general unless upon notice good cause should be shewn the then next seal The Defendants were served with that Notice Councel on both sides attending the Court put off the motion till after the last seal when his Lordship declared he would be attended with and peruse all the Orders made in the cause and then would settle Costs After which Seals Cresset endeavoured but could get no day appointed for attending his Lordship for that purpose though he often petitioned for the same A Serjeant at Arms was awarded against Robert and Sarah Roberts Mr. Roberts and his Lady their pretence for not sealing being because Bodvell's House was sold and promising to seal if they might have that again At their desire Cresset referred it to the present Lord Keeper and Sir Thomas Chichly their own Uncle both of their Nomination to settle what should be paid or given him in exchange for the same the Referees met Note this agreement was to be executed on or before the 25 of March 1671. made an agreement to which Cresset consented and they promised to perform thereby put Cresset to great charge in getting Conveyances drawn for the Execution thereof But Mr. Roberts and his Lady never performed the same The Serjeant at Arms returned that Robert and Sarah Roberts lodged in Whitehall and therefore he could not attach them Cresset moved again for Costs when it was ordered that Sir John Coel should tax Costs since the Decree against John Lord Roberts and that a Sequestration should issue against John Bodvell and Robert Roberts their real and personal Estate for the contempt of the said Roberts and Sarah his Wife unless cause should be shewed the then next Seal though by Affidavit it then appeared they had due notice of that days motion Cause coming to be shewn the Lord Keeper gave my Lord Roberts further time till the first day of the then next Term peremptorily to shew cause against his paying of Costs but disallowed the Reasons offered by Mr. Roberts and his Lady their Councel against the Sequestration and Ordered that the same should issue Upon the Lord Roberts motion it was Ordered That no Costs should be taxed against him personally but that Cresset should have all his Cost of Suits taxed and Sir John Coel to tax them accordingly the same to be paid out of Bodvell's Estate unless on notice to Robert Roberts and his Trustees good cause to the contrary should be shewn the then next day of motion Upon hearing Councel on both sides it was Ordered That Cresset should have his Costs relative to these Suits both before and after his Decree Coel to tax them and to be paid out of Bodvell's Estate The Lord Roberts and Robert and Sarah Roberts moved whereupon notwithstanding all the former Orders the Court Ordered Cresset should have Cost taxed since the Decree only and to be paid as aforesaid Which Order they kept from passing untill When the Court Ordered on Cresset's motion That Mr. Flatman the Defendant's Clerk in Court should bring back the Order pass it and attend the Master therewith Which done The Master taxed 250 l. Costs only Note that one motion might have setled these Costs as well as 15 and
The Case of John Cresset Gent. truly stated and humbly presented to the Consideration of Parliament JOhn Bodvel Esq being seized in Fee of 1700 l. per Annum Intermarried in 1638 with Ann the Daughter of Sir William Russel and by Indenture dated the 20 of February 1639 setled his Estate by which settlement amongst other things there was a Provision made for raising 5000 l. for his Daughter or Daughters that he should have at the time of his Decease to be paid them at their Age of 21 years or day of Marriage which should first happen John had two Daughters Elizabeth and Sarah Elizabeth died in July 1662 Sarah the 21 of December 1657 Intermarried with the Honourable Robert Roberts Esq had by him Issue several Sons and Daughters in the life-time of her said Father who died the 28 of March 1663 after whose Decease one Thomas Wynn Esq with others set up a pretended Will of his whereby he had totally disinherited his said Daughter Sarah and her Children given her only 5000 l. and devised all the rest of his Estate to Griffith Wynn Son of the said Thomas Wynn and one Thomas Bodvel both Infants Whereupon several Suits arose the management whereof was committed to the care of John Cresset who undertook the same and 't was as much as possible he could do so that he was forced to put off above 38 Causes and deny to meddle with any other business for several years together whereby he was greatly prejudiced in his Practice There were six Suits in Chancery two in the Prerogative Court and several at Law violently prosecuted the expence and charges being quick and great Mr. Roberts wanting Money to defray the same prevailed with Cresset to procure him supplys as he had occasion Whereupon the said Cresset borrowed for him the several sums and of the several persons in the Accompt following mentioned and became bound with him for the same amounting in the whole to about 4000 l. to defray the charges of these Suits his Journey into Wales to take possession of the Estate and paying his Fathers Debts and Funeral charges For securing whereof the said Robert and Sarah by Deed indented dated 1. March 1663 assigned to the said Cresset the 5000 l. Portion due by the Deed of the 20 of February 1639 and also the 5000 l. given by the pretended Will aforesaid The tediousness intricacy and trouble of those Suits is so well known that there is no need to give any account how many Hearings there was in Chancery each holding three whole days how many days Hearings in Parliament upon the Appeal how many afterwards before both Houses and his Majesty and Councel when before them by Bill to make null and void the said Will what care Cresset took what trouble he had and industry he used and the charge that those proceedings must necessarily occasion is submitted to judgment The Parliament passed an Act for nulling the said Will and for vesting his Estate in the Right Honourable John Lord Roberts Sir Richard Wynn and Henry Wynn in trust to raise money by perception of rents or sale of part of the premises wherewith to pay Bodvel's Debts due when he died and his Funeral Charges and then to pay 5000 l. to Sarah Roberts for her Portion according to the Deed of 20 February 1639 remainder for life to Sarah remainder in Tail to Charles Bodvell Roberts her Son which Act Cresset consented unto though it cut off half his Security relying upon their Promises of giving other Security in lieu thereof This Trust they having accepted and sold Land for 1700 l. and paid part of Bodvell's Debts therewith Cresset made Application to them for his 5000 l. and prayed Land might be sold for the same had often Promises from some of them that there should so be and for that purpose had Particulars given him and was desired to find out a Purchaser or one that would lend Money upon a Morgage to pay himself 5000 l. and 2000 l. of Bodvell's Debts Note by this that in 1666 Mr. Roberts knew there was above 5000 l. due to Cresset and Mr. Roberts by his Letter dated the 28 Febr. 1666 gave Assurance that the rest of Cressets debt over and above the said 5000 l. should be otherwise secured whereupon a Purchaser was found But the Lord Roberts would not do any thing therein other than what by law or equity he should be directed Cresset having used all manner of Endeavours waited two years after the Act and receiving no satisfaction being arrested and sued by several persons to Judgments and Executions taken out by surprize and executed upon him was forced to sell Lands of his own of the yearly value of 300 l. at least at great under-rates to raise money for to pay part of the said Money so by him borrowed for the said Roberts with the Interest thereof whereby he lost his Estate and was vastly prejudiced in his Practice Credit and Reputation and finding no relief by fair means He thereupon in Drew a Bâ—… in Chancery against the said John Lord Roberts Sir Richard Wynn Henry Wynn Robert Sarah and Charles Bodvell Roberts setting forth the matters aforesaid and his Debt how he suffered for want of receiving the same pray'd a Decree for sale of Lands This Bill before filed was delivered to Henry Wynn to carry to John Lâ—rd Roberts and to amend as he pleased the said Cresset being assured it should be a suit by coâ—sent only to have the Judgment of the Court for the Trustees Indemnity which Bill was â—mended by Mr. Wynn and approved of under his hand to be exhibited against the Truâ—…ees and so delivered back and was engrossed and filed To this Bill alâ— the Defendants except John Lord Roberts put in their several Answers Michaelmas Term fâ—llowing confessed all the matter of the Bill and R. Roberts and Sarah his Wife confessed Cresset debt the justness of his accompt and demands the great services he had done them and his â—â—fferings for them desired Lands might be sold to pay him and submitted to the judgment 〈◊〉 the Court being ready to observe the directions thereof But the Lord Roberts he put into Answer whereupon the Right Honourable the Lord Keeper 16 January 1668 writ to â—is Lordship to desire him if he thought fit to appear and answer the said Bill but he dâ—… not answer though Cresset offered to submit himself and his concerns to his Lordships owâ— appointment and determination Cresset beinâ— assured by Mr. Roberts and his Lady that the Lord Roberts though he had not answered would abide the judgment of the Court thereupon at their importunity he moved for a â—earing against the other Defendants Ordered that is Cause be heard on Bill and answer'd the 8 February 1668 and the Cause was set down â—he Defendants served to hear Judgments and Counsel intrusted accordingly The Lord Robâ—â—ts sent to Mr. Henry Wynn to insist at the hearing upon three things First â—hat
his Lordship had not answered neither was he in contempt therefore no Decâ—â—e ought to be made Seconâ—â—y That Robert Roberts had been in the possession received the Profits ever sincâ— Bodvell died of his Estate and thereby was paid the 5000 l. in question Thirdlâ— That Bodvell's Debts and Funeral-Charges was to be paid before the 500 l. and those not yet paid At which â—â—me Mrs. Roberts telling the said Cresset and Mr Wynn that the Lord Roberts was not satisfiâ— with his Accompts which occasioned his being angry Cresset offered to put off thâ— hearing for 14 days if the Defendants would consent and then appear gratis aâ—â— in the mean time wave all his Securities Judgments Releases and come to an accompt wâ—â—h any person his Lordship should appoint and abide by that persons determination if his Lâ—rdship would be pleased to be satisfied therewith this accordingly was agreed unto â—e said Cresset sent to the Lord Roberts to that purpose and Edward Nosworthy Esq a persoâ— well acquainted with Suits and the chargableness of them was appointed to inspect the Aâ—â—ompts the which were carried to him left many days with him he audited and allowed â—â—e same in Mr. Roberts his presence and no exception taken to them But Cresset never heard câ—â—… word from Lord Roberts after that time or could receive one penny of money Thereon The Cause caâ—e to hearing by consent but the Lord Keeper was pleased not to deliver any judgment bâ—ause the Lord Roberts had not answered The Lord Roâ—â—rts served with a Letter desiring him to appear and answer No answer bâ—â—ng put in a Subpaena returnable immediate was desired and denied The Lord Kâ—â—per writ a second Letter to the Lord Roberts to appear and answer Lord Robert â—is Answer came in and therein saith He knew of no Money lent by Cresset to his Son belâ—â—ves Cresset had no Estate of his own to lend nor Credit to borrow any considerable sum 〈◊〉 others nor believed that he had sold Land to pay Mr. Roberts Debt saith he was his Sollicâ—â—tor had received Gratification sutable to his desert and made great advantage of the said Robeâ—â— Roberts imploy and been enabled thereby to purchase Lands and heard some of Bodvell's Dâ—bts remained unpaid This Answer caused the Persons of whom the said Cresset had borrowed Money for the said Robert Roberts to suspect he designed to defraud them and made them sue him when as the said Cresseâ— to that day had never received directly or indirectly one penny either of the principal Moâ—ey borrowed for him or Interest or for Law-charges or for all his labour and pains six years Sollicitation or so much as a mourning-Ring at Bodvell's Funeral but was really above 6000 l. out of purse for Principal Interest and Law-charges Upon this Answer Cresset writ to Mr. Roberts to know the meaning thereof and desired to be vindicated from the Aspersions cast upon him thereby in answer whereunto he sent the Letter following March 10. 1668. SIR What occasioned those reports your Letter mentioned I know not but since the untruth arises even to scandal I think my self obliged to vindicate you by this short Narrative of your actings for me When my Father in Law died I retained you in my concern against Mr. Wynn which as I take it multiplied into four several Suits all which you carried on with unwearied fidelity to the abandoning all other business and Clients whatsoever Thus I had not only your care but your kindness to such a degree as made you insensible to others and as I engrossed your Pains so had I the command of your Purse which you most freely opened as my business required such was my condition at that time as I could not look upon it to be less than a providence which directed me to you Note in his Petition to the King and Council 8 January 1674 he calls it his great misfortune that he met with Cresset because Cresset is no â—onger able to furnish him with money or forbear what he hath lent to or paid for him for it had been impossible for me without you to have managed any of those Suits mentioned in regard of their great charge and expence I must and shall ever assert that in all my whole business you were to me as a Parent a Counsellor and a Friend my advantage was all you aimed at for you did lay out your self with that frankness that till I was your debtor for 2500 l. you never so much as asked me to give you a Bond or any Security Nay when my business grew so chargeable to you that you were forced to take up great summs of Money to carry it on you would not throw it off nor be discouraged but borrowed even to the Morgaging your Land for me and was forced to sell it at great loss to satisfie part of my Debt The danger you run was evident to the world insomuch that my Lord Mandevil has many times wondred how you would give me so much Credit that could not give you any good Security Note the Act took away the 5000 l. given by the will of Bodwell by setting aside that Will and that was assigned to Cresset as well as the 5000 l. setled by the Deed of the 20. Feb. 1639. and such as it was you parted with half of it when the Act of Parliament passed for the Preserving that Estate which with so much care and pains you got at last settled whatever money you borrowed for me I had it on as good terms as my Lord Mayor and Aldermen could have took it up of all which summes I am still your Debtor having not satisfied you of one farthing nor given you any thing as a Reward though I intended you a thousand pounds as an Acknowledgments of my Gratitude To the matter of your Accounts I must say that although I saw most of the money disbursed and that you gave me the Papers to peruse before we Endorsed any thing by way of Accounts upon the Deed of Mortgage yet such has been your Integrity that you have from time to time subjected the whole to a Review and new Examination so oft as it has been asked and particularly of late to Mr. Nolworthy for the satisfying of my father I must not only bear you witness what you have done but what you have suffered for me if you require it at my hands and though it has been to such an extremity as I am almost ashamed to mention yet could it not alter your Respect to my Father against whom you put not in your Bill before a year was elapsed for the settlement of that Estate and when you did it was with advice of my Vncle Henry Wynne who judged that way necessary to secure the Trustees I am so much engaged to you that I can never be weary of doing you Right by thus asserting your truth and friendship to Sir Your most affectionate Friend and Servant R. ROBERTS For John Cresset Esq
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