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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A35648	The case of Sir Robert Atkyns, Knight of the Honourable Order of the Bath, upon his appeal against a decree obtain'd by Mrs. Elizabeth Took, (the now wife of Thomas Took, Esq.) and others, plaintiffs in Chancery, about a separate maintenance of 200 l per ann. clear above all charges settled on Mrs. Took, beside a large jointure	Atkyns, Robert, Sir, 1621-1709, defendant.; Took, Elizabeth.	1695 (1695)	Wing C999; ESTC R170983	10,525	13

not after the Rules of Equity 3 dly By drawing in a Purchaser to answer to and to be Subject to a Trust to which he is neither Party nor Privy Neither claiming under the Trustee Mr. Bennet nor under Mrs. Took for whom the Trust is contrary to all the Authorities in the Books both Ancient A Trust is the same thing as an Use was and Modern in this very point and against the Rules and Precedents in Chancery A Trust now being the same thing with an Use as it stood before the Statute of 27 H. 8. for Transferring the Possession to the Use. As fully appears by that Statute wherein Use and Trust are often repeated as signifying the same 4 thly By entertaining a Suit and Decreeing in Equity when there is a plain Remedy at Law Mrs. Took hath Remedy at Law in the Trustee's Name in the Name of the Trustee Mr. Bennet For if Mr. Bennet's Estate be good in Law which ought to be determin'd at Law then the separate Maintenance must be good and cannot nor will not be contested And Mr. Bennet's Deed and Title at Law is Prior in time to the Appellant Sir Robert's Mortgage So that if it be not Fraudulent it is not in the least danger 1. It is supposed that this is the first Precedent wherein a Court of Equity hath countenanc'd that new thing a separate Maintenance or Alimony and that against a Purchaser 2. And so large a separate Maintenance as 200. per An. clear above all Payments out of so small an Estate as her Husbands is 3. And which was Granted by the Husband Ten years after their Marriage and not in performance of any Marriage-Agreement 4. And the Husband being at the time of Granting of it greatly Indebted many of which Debts are unpaid to this Day So that the Husband is driven from his Wife and Home by reason of his Debts and the Husband hath nothing left him to live upon but what his Wife secretly spares him as he has receiv'd several Sums since the Granting this separate Maintenance as appears in proof which proves the Fraud 5. The Husband having borrow'd the Appellant's Money to enable him to pay his Debts and to set him at Liberty and to procure and fit him for an Employment in the Army 6. And where the Wife had a former separate Maintenance of 100 l. per An. A former separate Maintenance Granted her about two Years before upon her joining in a Fine and barr'd her self of her Thirds if she Surviv'd in Recompence of which Thirds too A Jointure of 300 l. per Annum she hath by this very last Settlement 300 l. per An. clear above all Payments for her Jointure if she Survive And in this Case the Purchaser the Apellant Sir Robert Atkyns hath not had one penny Principal or Interest after Six years parting with his Money which Money he is still willing to have repaid him and to quit the benefit of the Purchase The Appellant Note Sir Robert hath had so great tenderness and respect to the Respondent Mrs. Took Sir Robert Atkyns lets Mrs. Took enjoy 18 of the 19 houses that claims this present Maintenance as to gain to himself the Possession but of one House of nineteen Houses which he hath gained too not against her nor her Trustee but by his own Suit and at his own charge against one Collins who detain'd it from the Estate of Captain Took several years and conceal'd it from them So that it was given by them for lost and not so much as look'd after by them tho it had some time paid them Rent they contenting themselves all the while with the other Eighteen Houses and may if they will be quiet enjoy their eighteen Houses for the future Which eighteen Houses if well look'd after and if the Rents of them were duly Collected will be very sufficient to answer Mrs. Took her full separate Maintenance of 200. per An. during her Life if Sir Robert might have the naming of the Collector which is deny'd him by the Decree There are Two things more yet remaining in this present Case to be remembred 1. The now Appellant Sir Robert Atkyns then Defendant moved the Lord Keeper at the Hearing That he might have Reparation against the Plaintiffs in that Bill especially against the Plaintiff Bedford a Clerk in Chancery who needlesly thrust himself in to be a Plaintiff and drew the Bill himself as appears by the Bill Fol 34 35 36. and also against the Plaintiff's Council who sign'd the Bill viz. Sir William Williams Sergeant Bretland and E. Otterborn for the Scandals cast upon the Appellant Sir Robert Scandal who at that time was Chief Baron of the Exchequer and an Assistant to the House of Lords 1. The Bill charges the then Defendant Sir Robert as acting against the Plaintiff Mrs. Took by his Greatness and Power Fol. 44. and 46. which Reflects upon him in Relation to his Judge's Office 2. And Fol. 54. and 55. That Sir Robert threatens to ruin the Plaintiff Mrs. Took in Law-Suits unless she will comply with his unreasonable desires 3. And Fol. 58. and 60. That Sir Robert carried on the Suit at Common-Law in the Replevin in the Name of Hook contrary to Hook's desire All which are very false and the Plaintiffs have not made the least proof of them but the contrary of them appears by Hook's owning the Suit by Replevin Nor were they at all material to the Bill which had been as sufficient without them By the Stat. of 8 Eliz. Cap. 2. Parag. 4. The penalty for Suing in another's Name without the consent of such Person is six Months Imprisonment without Bail and not then to be delivered out of Prison till first paying treble Damages and Costs and Ten pounds penalty besides yet the Court would have no regard to all this but it must remain to Posterity upon the File It is usual in Chancery as it was also in the Star-Chamber and other Courts to give Damages to the Defendant for the Scandals in the Bills and there are Precedents of it But the Lord-Keeper held these no Scandals Sir Robert Appeals to the Lords herein and prays he may have Reparation as well against the Council that Sign'd the Bill as against the Plaintiffs and that the Bill may be taken off the File It may perhaps be offer'd by the Respondents Mrs. Took c. upon the Hearing this Appeal before the Lords That in the hearing of the Cause in Chancery a Bill Exhibited by the Appellant Sir Robert in the Exchequer against Mrs. Took and her Husband Capt. Took and against her Trustee Mr. Bennet and against Hook the Tenant of the Rose-Tavern c. was read whereby it appear'd that Sir Robert in Effect then admitted of Mrs. Took's Separate Maintenance and Mr. Bennet's Estate in Trust for her as good and claimed to himself only the overplus of the Rents if any during her Life and the

THE CASE OF Sir Robert Atkyns Knight of the Honourable Order of the BATH UPON HIS APPEAL AGAINST A DECREE obtain'd by Mrs. Elizabeth Took the now Wife of Thomas Took Esq and others Plantiffs in Chancery about a Separate Maintenance of 200 l. per Ann. clear above all Charges settled on Mrs. Took besides a Large Jointure LONDON Printed in the Year MDCXCV Mrs. Elizabeth Took the Wife of Thomas Took now living is Plaintiff in Chancery Sir Robert Atkyns the late Chief Baron Defendant Mrs. Took hath obtained a Decree and Sir Robert Appeals to the Lords The CASE upon the Appeal THE Plaintiff Mrs. Took by her Bill in Chancery Mrs. Took's Title sets forth a Title to Iohn Bennet Esq as her Trustee to a Lease for Lives in Nineteen Houses in Castle-Yard in Holbourn in Trust to pay her 200 l. per Ann. clear above all Charges and Payments for her Life as a Separate Maintenance while her Husband Lives This was by a Deed made by her Husband Mr. Took in April 1686. And by the same Deed she claims further 300 l. per Ann. clear in like manner for her Jointure if she outlive her Husband Sir Robert the Defendant Lent 820 l. to the Husband Sir Robert's Title Mr. Took to help him out of Prison and to pay his Debts and took a Mortgage of him of the same Houses Three years after Mrs. Took's Deed viz. in May 1689. So that Mrs. Took's Separate Maintenance is first in time if it be not fraudulent The Chancery upon hearing of the Cause Trinity Term Decree for a Separate Maintenance Perpetual Injunction 1694. hath Decreed the Separate Maintenance to be good in Law against Sir Robert's Mortgage and hath granted a perpetual Injunction to stay the Trial at the Common Law upon an issue whether Mr. Bennet's Estate be Fraudulent or not Which Issue was join'd before Mrs. Took's Bill was Exhibited But the Chancery will not suffer it to be Tried at Law though it be matter of Fact The ground and pretence for Equity against Sir Robert The Equity Sir Robert's Notice is That Sir Robert had Notice of this Trust of a Separate Maintenance before he took his Mortgage Answ. Sir Robert claims not under the Estate in Trust nor by nor under Mr. Bennet the Trustee and therefore no Bill nor Equity lies for it against him And therefore his Notice of the Trust which he admits he had is not Material That which probably misleads the Chancery as Sir Robert supposes is the common Case in our Law-Books of an Use which was the same thing as a Trust now is Viz. If a Feoffee to an Use before the Stat. of 27. of H. 8. for transferring the Possession to the Use had Enfeoffe'd I. S. of the Land although for a Valuable Consideration yet if I. S. had Notice of the Use he shall be Subject to the Use although he were a Purchaser and a Subpoena lies against him by Cestuy que Use the Party for whom the Use was the true reason is because I. S. in this Case claims in privity of the Estate and derives under the first Feoffee himself and comes into the Estate in the per as the Law distinguishes and terms it and not in the post as Sir Robert does And so are the Books The Defendant in Chancery and Appellant before the Lords comes in not in the per but post viz. 7. H. 7. Fitzh Abr. tit Sub poena plac 18. and 5 E. 4. ib. placit 2. 5. and Dame Burgh ' s Case Moor ' s Rep. 602. And in this Case if I. S. were not a Purchaser and paid no valuable Consideration it is all one whether he had Notice or not and if he paid a Consideration yet if he had Notice before-hand he shall be subject to the Use and liable to a Subpoena in Chancery at the Suit of Cestuy que Use. But Note The true reason and distinction in this Case is I. S. comes in under the first Feoffee himself and under that Feoffee's Estate so that there is a privity of Estate between them which is termed coming in the Per It has been Resolv'd by a Chancellor and all the Judges That the Heir of such a second Feoffee is not liable to a Subpoena by Cestuy que Use but they must seek to the Parliament though he be in the * 22. E. 4. 6. by the Ch. Just. Hussey Bro. Conscience plac 23. Per and under a Privity of Estate 8 E. 4. Fitz. Subp plac 8. and 22. E. 4. 6. Bro. Abr. tit Conscience plac 23. But all the Books are That no Subpoena in Chancery lies against a Stranger that is who is not privy nor comes not under the very Estate out of which the Use issues or the Trust arises which is all one for a † Ld. Cook 4. Inst. 85. in the middle of the Fol. Stranger is he that comes not in the per but in the post and this is very Case of the Appellant Sir Robert Atkyns he Claims not from nor under Mr. Bennet and in such Case Notice is not material Where a Man is a meer Wrong-doer as a Trespasser or Disseisor and who hath Notice too before-hand of an Use or Trust even in such Case the Cestuy que Use or Cestuy que Trust as Mrs. Took in this Case is cannot maintain a Subpoena nor hath any Remedy in Chancery against such Trespasser or Disseisor but must take his Remedy by Sub-poena against her own Feoffee or Trustee if there be Cause to Compel him to enter again upon such a Disseisor Mich. 42. and 43. Eliz. in the Chancery Sir Edw. Cook 4. Inst. 85. Chap. of Chancery And so is the Ld. Cook 1. Rep. 139. b. or to bring an Action against such a Trespasser So is 11 E. 4. 8. Bro. Conscience 17. at the end of that placitum and ib. placit 17. Sir Moile Finche's Case in Chancery referr'd by Queen Elizabeth to all the Judges of England after hearing Councel on both Parts on several days and after Conference between the Judges themselves it was Resolv'd That a Disseisor is subject to no Trust nor was a Subpoena maintainable against him Not only because a Disseisor was in the post but because the right of Freehold and Inheritance was determinable at the Common Law and not in † 22 E. 4. 6. ut supra by Hussey Ch. Just. Chancery neither had Cestuy que Use while he was in being any Remedy in such Case If no Subpoena will lie against a Disseisor i. e. a wrong-doer much less against a Purchaser who comes in by a Legal Conveyance without any Privity of Estate as Sir Robert Atkyns doth But which is yet much stronger than all those Cases before-cited there is not only a want of Privity in this present Case of Sir Robert's which is a sufficient reason why no Subpoena nor remedy in Equity ●ies against him by Mrs. Took the Cestuy que Trust But he pleaded

to her Bill in Chancery and insisted upon it at the hearing That he is a Purchaser upon a Valuable Consideration and that the Estate for Life made by the Husband Thomas Took to Mr. Bennet in Trust for a Separate Maintenance for the Wife is Fraudulent and therefore void by the Stat. A Fraudulent Conveyance 27 Eliz. cap. 4. and that this ought to be tried by a Jury and determined at the Common Law And that by their Distreining the Tenant for his Rent Triable by a Jury not by Witnesses in Chancery who sued a Replevin they themselves had put the matter into a right course at Common Law where a matter of Fact Fraudulent or not Fraudulent ought to be tried by a Jury and not by Witnesses in Chancery and a Fraudulent Conveyance being made void by the Statute before mentioned the Exposition of Statutes belongs to the Judges of the Common Law A Statute is to be expounded by the Judges not in Chancery and not to a Court of Equity and especially there being Estates of Freehold and Inheritance on both sides concern'd in this Case which is examinable and determinable by the Courts of the Common Law and the Rules of Law and not in Equity by Witnesses And they themselves had join'd Issue upon the Fraud The Chancery may not determine Freehold and a Jury return'd to try it before they Exhibited their Bill in Chancery And Notice of the Trust before he took the Mortgage being also confess'd by Sir Robert in his Answer if it be at all material it is so upon the trial of the Issue to prove their Deed not Fraudulent so that she might take the benefit and advantage of that upon the Trial at Law if it be material Note Sir Robert hath no way to overthrow their Deed and Title but by making it out to be Fraudulent If it be not Fraudulent they are safe for their Deed is prior in time to Sir Robert's Deed by Three years so that they had no need if it were not Fraudulent to resort to Equity If it be a Fraudulent Deed Will a Court of Equity support it Which should rather relieve a Purchaser against frauds especially in the Case of such an upstart and mischievous and late invention as a Separate Maintenance is granted by the Husband Thomas Took about Ten Years after Marriage there being no preceding Agreement before Marriage for it and being in Consideration only of her joyning with her Husband in a Fine for the Sale of some other Houses wherein she was also Entituled by the Marriage to her Thirds and this being done in the year 1686. Whereas 1 st She had before in the year 1684 levied a Fine with her Husband to enable him to Mortgage and Borrow Money to pay his Debts and then 100 l. per An. Separate Maintenance was settled on her which was large enough considering his mean Estate and she parted with no Thirds in 1686 so the Consideration was but feigned in 1686. when the 200 l. per Ann. was Settled 2 dly The Husband in 1686. was much more Indebted than in 1684. and yet the Separate Maintenance must then be doubled viz. from 100 l. to 200 l. per An. clear and many of those Debts remain unpaid to this day as is prov'd in this Case 3 dly The only consideration for the Separate Maintenance of 200 l. per Ann. clear in the Deed of 1686. being her then joyning in a Fine and barring of her Thirds all which was done before in 1684. but by this Deed of 1686. She has 300 l. per Ann. besides clear above all Payments settled upon her for her Jointure in Lieu of her Thirds if she survive which is far greater in proportion too than the whole Estate would have born had she been left to her Thirds 300 l. per Ann. Jointure besides And this is a more suitable Recompence too for her Thirds being in case she survive as the Thirds would have been but she must hook in a Separate Maintenance too in the mean time while the Husband is alive And there is nothing else left to maintain him nor to pay his Debts but he was forced to take up Money of Sir Robert to pay off some of his Debts and to fit him for an Employment in the Army for which Money so borrowed Mr. Took Mortgag'd these Houses to Sir Robert Six years ago and not a Penny Principal or Interest paid in Six years time nor like to be if this Decree stand while Mrs. Took lives who is about 34 years old 4 thly A Separate Maintenance is the same thing with Alimony Now in the Exchequer Chamber The nature of a Separate Maintenance 15 Car. 2. in the Case of Manby against Scot the then Chief Justice Bridgman and the rest of the Judges there were of Opinion That by Law the Wife shall be maintain'd according to the present Estate and not only according to the Degree of the Husband See Siderfin's Reports Fol. 128. But this Separate Maintenance and Alimony of 200 l. per Ann. clear of all Payments swallows up all the Husband's Estate none is left There are many other Badges of Fraud which Sir Robert reserved to be made out upon the Trial before the Jury but held them not proper at the Hearing so that the Opinion of that Court for Allowing and Confirming the Separate Maintenance was a surprize upon Sir Robert Sir Robert at the Hearing mov'd the Lord Keeper that he would hear the Opinion of some of the Judges in the Case concerning the Jurisdiction of Courts of Law and a Court of Equity but it would not be granted Yet it appears by the Cases before-cited and many more in the Books That in Cases of Uses the Chancellor was heretofore used to Adjourn such Cases into the Exchequer-Chamber and to go thither himself and to have the Cases there debated by all the Judges which kept a good Correspondence among the Courts and kept Equity within some bounds See the before-cited Case of 8 E. 4. Fitz. Abr. Tit. Subpoena Plac. 8. and much of that Title to the same purpose It may be Observ'd out of all that hath been said That the present Decree incroaches upon the Common-Law in several main points 1 st In Examining and Determining a Matter of Fact whether a Conveyance be Fraudulent or not Fraudulent by Witnesses which ought to be Tried by a Jury of Twelve Men. And this is done by the Chancery too after an Issue join'd at Law upon that very point before any Bill Exhibited And Sir Robert at last must pay the whole Charge of both near 200 l. Costs besides his own Charges and mighty trouble 2 dly The Chancery by this Decree hath taken upon it to determine a Matter of Freehold which is in Question on both Sides and claimed by both Parties which is not Determinable in a Court of Equity but only at the Common-Law and by Judges Sworn to judge according to Law and

Reversion of the whole after her Death In this Bill of Mrs. Took's in the Chancery Answ. whereupon the Decree now Appeal'd from is made there is not any Allegation nor the least touch or mention of that Bill of Sir Robert's in the Exchequer nor of the Matter of that Bill For had it been alledg'd in Mrs. Took's Chancery-Bill Sir Robert could have given it a full Answer and shewn how that Sir Robert at the Exhibiting of his Bill in the Exchequer had not so fully discovered the Fraud of the Separate Maintenance as he has done since but believ'd as the Deed for the Separate Maintenance does alledge see her Deed that the Rents were sufficient to answer her the 200 l. per An. and that 160 l. per. An. over would have been left for Sir Robert which by her proofs appear to be false and the Rents short of making good her 200 l. per An. as she alledges See her Bill A Court must proceed Secundum Allegata 2 dly The reading that Bill of Sir Robert's in the Exchequer and indeed all the proof offer'd at the hearing the Cause in Chancery were irregular there being nothing in the Cause in the Chancery put in Issue by the Bill and answer The only Equity of the Plaintiff Mrs. Took's Bill being a Trust of the Separate Maintenance and Sir Robert's Notice of it both which were confess'd by Sir Robert in his answer He only insisted upon it both by his Plea and Answer that their Deed was Fraudulent which ought to be tried at the Common-Law and that he being a Stranger neither Party nor Privy therefore the notice was not material Here was nothing remain'd that requir'd proof in Chancery yet to increase the Charge the Plaintiffs proceeded to proofs which has given occasion to Sir Miles Cook to load Sir Robert with near 200 l. Cost which tho excepted too is confirm'd by the Court. 3 dly Had the matter of Sir Robert's Bill in the Exchequer been the least hinted at or stirr'd in Mrs. Took's Bill in Chancery Sir Robert had been awakened by it and forewarn'd to have answer'd to it and made proof upon it Viz. That his Bill in the Exchequer was designed meerly to state the Debt owing to him by Mr. Took and to compel him to a Redemption of the Mortgage or to be barr'd of his Redemption and all Parties as was propos'd to Sir Robert on the behalf of Mr. Took were inclin'd to get an Act of Parliament pass'd for the sale of Mr. Took's Estate and to have the Debt due to Sir Robert upon the Mortgage and the Debts to his other Creditors paid off and a provision afterwards made for Mrs. Took which Sir Robert offer'd to further So that it was not so seasonable nor proper at that time to question their Title nor to object Fraud against it Nor was it proper for Sir Robert to Object or Controvert the Fraud of it in Equity there being sufficient Remedy against it at the Common-Law which Course too he afterwards pursued when he found they proceeded not in their Agreement to get the Act of Parliament pass'd And the Fraud more plainly appearing 4 thly Sir Robert at the hearing of this Cause in Chancery oppos'd the reading of his Exchequer-Bill in Evidence as being no regular proof or evidence either in Law or Equity A Bill in Equity is no Evidence in another Suit Bills in Equity being the Invention and Surmises of the Council that draw them and the Suggestions and Allegations that are in them are indeed but of the Nature of Interrogations to enforce a Discovery from the Defendants but are no Conclusions nor Estopples to the Parties that exhibit them nor evidence against them who do not so much as Sign them themselves Nor shall Sir Robert's Bill in the Exchequer controll his Indenture of Mortgage whereby the Fee-Simple of the Houses in Question is conveyed in possession to him and not a Reversion only Nor shall it overthrow his Answer upon Oath in this Cause wherein he makes Title to the Houses in Possession as being the Purchaser of them for a valuable consideration Note and being indeed forced to accept the Mortgage by Mr. Took's defrauding him of a former security which Sir Robert had for his Money or else Sir Robert must have lost his money Now that Sir Robert's Exchequer-Bill ought not by the Rules of Law to have been allow'd for Evidence no not in the Chancery tho between the same Parties appears by a printed Case by the Resolution of a Lord-Chancellor too in the very like Case in the main but the present Case on Sir Robert's part is much stronger than that too on his Side The Case is Mich. 14. E. 4. Fitzh Abr. Tit. Subpoena plac 15. One Tate was Sued in Chancery by a Bill in Equity as Sir Robert is and made to answer upon Oath at the Hearing just as was in this present Case a Bill of Tate's then Defendant exhibited by him in the same Court too and for the same matter and thereupon so much the stronger against Tate was offer'd to be read which did contradict and differ from his answer By the Chancellor by advice of the King's Sergeants Tate's Bill was not to be regarded for he was Sworn to his Answer but not to his Bill 5. If Sir Robert's Exchequer-Bill had been Evidence as it is not yet it serves only to prove that in Sir Robert's opinion at that time when his bill was Exhibited Mrs. Took's Deed of Separate Maintenance was not Fraudulent or that he then had not discovered the Fraud This would then have been proper to have been offer'd upon the trial of the Issue at Common-Law but is no Ground for a Decree And Sir Robert may change his Opinion upon further Discovery of the Truth of the Case for it is at most but his then apprehension of it it alters not the truth of the Case nor the matter of Fact in it and he was seduced into that good opinion of Mrs. Took's title to her Separate Maintenance by Mrs. Took's own Deed which did affirm the yearly value to be 360 l. per An. which had it been true would have been sufficient for both their turns but in truth there has not been enough to pay the 200 l. per An. Separate Maintenances are but of late Invention and bring many mischievous consequences after them And not one Precedent of the Chancery as 't is believ'd can be produc'd where ever before this Decree a Separate Maintenance hath been Countenanc'd against a Purchaser Which Purchase to the Appellant Sir Robert Atkyns never was made out of any greediness of profit Sir Robert was forced to take this Mortgage but he was meerly driven to it to accept it as a farther Security after he had parted with his Money to the Husband who had defrauded Sir Robert of a former Security as appears by the proofs And either the Husband or the Wife or any Friend of theirs on their behalf may still redeem if they please if it be done in some reasonable time Sir Robert will be willing to accept of his money again Sir Robert hopes to be excus'd for using this Freedom with the Chancery It being generally known that long before this present occasion even while he himself Sate in a Court of Equity established by Act of Parliament he both in that Court and in the Highest Court the House of Lords discharg'd his Conscience by inveighing against the Encroachments of Courts of Equity To Conclude The Apellant Sir Robert Atkyns humbly moves the Lords to take up the same resolution in this present Case which appears in the Precedent and Example to be of highest consequence as their Noble Ancestors and Predecessors did in the Twentieth Year of King Henry the IIId when the Statute of Merton was made Chap. 9 th The Lords being press'd by all the Bishops to make the Ancient Law of England to conform to the Constitution of the Church but in one point Viz. That Children born before Matrimony might be accounted Legitimate and Inheritable to Lands All the Earls and Barons with one Voice answered That they would not change the Laws of the Realm which hitherto have been Used and Approved Erratum P. 4. l. 30. add the. FINIS