C9/5/33

Contents

Bill of Complaint Charles Lord Cranbourne and Diana is wife. 1

Answer of Heneage FINCH. 4

Further Answer of Robert ABBOTT. 4

Bill of Complaint Charles Lord Cranbourne and Diana is wife

24^th October 1650

SMYTHE

To the Right Honourable the Lord Commissioners for the custody of the great seal of England

Humbly complaining show unto your Lordship your daily Orators Charles Lord CRANBOURNE and the Lady Diana his wife that whereas James MAXWELL Earl of DIRLETON in // Scotland father of your Oratrix the Lady Diana was in his life time seized amongst other things of and in his demeasure as of fee and in the Capital House called the Friars and the house barns and //  Buildings, courtyards, gardens, orchards, walks, ways, easements profits commodities and hereditaments with their appurtenances thereto belonging situate lying or being at or near Guildford // in the county of Surrey and also of and inn those closes and parcels of lands meadows and pastures with their appurtenances called or known by the name or names of the Lees lying and being in // the parish of Stoke near Guildford aforesaid. And also of and in all that the park called or known by the name Guildford Park. And also of and in all those messuages farms lands and enclosed // grounds lately disparked and before that parcel of the park called Guildford  Park or so of late heretofore reputed to be called or known the said park and lands containing by estimation one thousand and // five hundred Acres situate lying and being in or the parishes of St Nicholas in Guildford , Compton and Worplesdon or some or one of them. And also of and in the Manor of Wanborrow [Wanborough] and the // Rectory and of Wanborrow [Wanborough] farm in the County of Surrey together with all and every of their appurtenances and of diverse other lands and tenements in the County of Surrey and of the Manor // of Kidland in the County of Northumberland. And the said James MAXWELL being thereof seized as is aforesaid about the [nineth?] of April last past died in Scotland by and after whose // decease the said Manor messuage park lands ad premises of right did descend and come unto to your orator the lady Diana and [?] lady Eliza wife to William HAMBLETON als Duke of HAMBLETON [HAMILTON] in Scotland his sister aforesaid as // [?] and co heirs of him the said James MAXWELL Earl of DIRLETON they being his only daughter and heirs by virtue whereof your said Orator in right of the said Lady Diana his wife after // the decease of the said James MAXWELL Earl of DIRLETON into the said Manor Messuages Lands and premises entered and by virtue thereof is seized in right of his said wife as [co?] wit the said // other sister of one moiety of the same But now so it pay please your Lordship that the said Duke and Lady Duchess HAMBLETON [HAMILTON] being at this time [incapable?]  of the enjoyment of her moiety of premises as co-heir [?] // Your said Oratrix by reason of the delinquency of the said now Duke HAMBLETON her said husband to the Parliament of England and to defeat and hinder your Orator of his moiety in right of his // wife as a foresaid hath together with and by the assistance privity contrivance and combination of the said Duke HAMBLETON [HAMILTON], Elizabeth MAXWELL Countess of DIRLETON (mother of  the said Lady Duchess and your Oratrix Sir John // PRATT knight Eliab HARVEY of London Merchant, William WESTON Esquire Heneage FINCH esquire, John PRESTWOOD merchant Henry PRATT, Robert ABBOTT, Thomas WOODFIELD, Thomas [JENNINGS?] //  And HARWOOD set on foot some estate pretended to be made of the premises by the said James MAXWELL Earl of DIRLETON in his life time thereby the right of your Orator and Oratrix is barred and // to that purpose do give out in speeches that the said Earl of DIRLETON by his several deeds of bargain and sale executed in his life time did convey the said Capital [?] house lands // and premises for some pretended consideration in money unto the said Heneage FINCH  of the Inner Temple London esquire John PRESTWOOD of London merchant and Henry PRATT of London // Haberdasher and unto William WESTON of London Merchant with the same condition or proviso in the said several deeds or in some other of the same date that if the said Earl of DIRLETON // His heirs executors or assigns or any of them should at some day afterwards pay unto the mortgagees or some or one of them in the said several deeds named certain sums of money in the said // provisos or conditions expressed them the said deed of bargain and sale of the premises to be void in the said some of money was not accordingly paid as by the said confederates is // pretended whereby the said premises are become forfeited had hereupon the said Duke and Duchess of HAMBLETON [HAMILTON] who refuse to join with your orator and Oratrix for redeeming the said // Mortgages (if any such be) [?] of the premises by the agreement or conveyance to the said Heneage FINCH John PRESTWOOD Henry PRATT // and William WESTON mortgaged in the said deeds and with [..] Countess of DIRLETON Eliab HARVEY Thomas WOODFIELD, Thomas JENNINGS and [Jane?] HARWOOD do endeavour to obtain from them the said Heneage FINCH, // John PRESTWOOD, Henry PRATT and William WESTON an absolute estate of the said premises upon pretence of paying the money mentioned in the said condition or proviso by way of redemption // of the same when in truth there was no such mortgage really made of the said Messuage, manors, lands and premises by the said Earl of DIRLETON in his life time  but if any such were the same was // [?] and not bona fide and the said consideration pretended was the money of the Earl of DIRLETON himself, or if not it was but paid in [collom?] at that time only for this purpose // and by him or by his appointment shortly after repaid or directed to be by the said Eliab HARVEY out of the money of the said Earl of DIRLETON left him in the hands of the said Eliab HARVERY // Or Robert ABBOTT or of some other by his privity and knowledge and herein your Orator is the more confirmed for that he demanded to redeem the said premises if there were in truth any such [?] // Mortgages and hath several times offered to pay the money which is pretended to be due upon the same so as the said mortgages would [?] the estate in the premises unto him your said Orator // Or to such as he should nominate and appoint which they the said Heneage FINCH, John PRESTWOOD, Henry PRATT and William WESTON being the mortgagees named in the said deeds so absolutely // Refuse and do stand upon the forfeiture thereof and do endeavour there upon at the common law to  evict the premises from your Orator or to convey the same or have already so done unto // some other person or persons at the insistence of the said Countess of DIRLETON and Duke and Duchess of HAMLETON [HAMILTON] and to their or several of their use or uses benefit or behoof they the said

Absolutely refusing to join in the redeeming the premises (if the same were really in mortgage) with your Oratrix her other sister and coheirs by means whereof if those proceedings should // take effect your Orator and the lady Diana his wife would be utterly defeated of their just right and interest in and to the moiety of the said premises as co-heirs unto her said father // all which doings are contrary to equity and good conscience and tend to the great loss [?] hindrance and [? Of your Orator and Oratrix in the estates. In tender consideration // whereof and for that your Orator and Oratrix have no proper remedy by the cause of the Common Law of this land for that purpose there may be some deed of conveyance [?] // Of the said premises against which in respect of the said forfeiture nothing [?] be pleaded in bar by Orator and Oratrix but are left wholly for relief unto this Honourable Court according // to the rules of equity. And to the end therefore that the said Duke and Duchess of Hambleton [HAMILTON] may be compelled to joint with your Orator and Oratrix in redeeming the said mortgages and to make [?] // Of the premises as a [?] and that they and the said Elizabeth Countess of DIRLETON, Heneage FINCH, John PRESTWOOD Henry PRATT, William WESTON, Eliab HARVERY, Robert ABBOTT, Thomas JENNINGS, and Jane HARWOOD, Thomas WOODFORD // May upon their several corporal oaths answer the truth of all and singular the said premises particularly whether or not any such mortgage or other estate was really and bona fida //Made by the said Earl of the premises or of any part thereof and of what part thereof and to whom it was so conveyed and for what consideration and on what condition and [?] // the money pretended to be the consideration was not the money of the said Earl of DIRLETON or was not afterwards by him paid or directed to be paid in discharge of the  said mortgage // or whether there is not in the hands of them the said Countess of DIRLETON Duke or duchess of Hambleton [HAMILTON] Eliab HARVEY, Robert ABBOTT or some of them or some other to their knowledge // To pay and discharge the same or some part thereof and how much thereof and that the said Heneage FINCH, John PRESTWOOD, Henry PRATT and William WESTON may set forth what estate they // claim in the premises and what estate or estates they have made of the premises or any part thereof and to whom and what sum or sums of money they or any of them // did really pay the said Earl for or by reason of any such pretended mortgage or conveyance as aforesaid and how much money doth now justly remain due unto them or any of them // Them concerning the same and whether or not your orator hath not offered to pay the principal money together with the interest justly due upon the mortgage and that // Your Orator and Oratrix may be relieved concerning all matters before alleged and set for the. May it please your Lordship the premises considered to grant unto // Your Orator and Oratrix be [?] unto Elizabeth Countess of DIRLETON the said Duke and Duchess of HAMBLETON [HAMILTON], Sir John SCOTT knt, Eliab HARVEY [Merchant?], William WESTON, Heneage FINCH // Esquire John PRESTWOOD merchant, Henry PRATT, Robert ABBOTT, Thomas WOODFORD, Thomas [JENNINGS?] Jane HARWOOD // Commanding them and every of them at a certain day and under a certain pain therein to be limited personally to appear before your Lordship in the High Court of Chancery then // [..] as to your Lordsip shall seem meet.And Your Orators shall duly pray. //

BURROUGH.

Barth. [?]

Answer of Heneage FINCH

27 January 1650

John PAGE

The several answer of Heneage FINCH of the Inner Temple London Esquire unto the Bill of Complaint of the Right Hon. Charles Lord Cranbourne and the Lady Diana his Wife Complainants.

This defendant saving to himself now at hereafter all times all advantages of exception to the many uncertainties // and insufficiencies of the said Complainant’s Bill of Complaint for answer unto so much thereof is material for // for him the said defendant to make answer unto saith that he believes it to be true that the said James MAXWELL Earl of DIRLETON did make the // conveyance of the lands in the Bill mentioned unto the said Heneage FINCH, John PRESTWOOD Henry PRATT // as in the Bill is alleged.  And that the said conveyance was intended to be as a security for money lent unto the //   James MAXWELL Earl of DIRLETON but whether the said Complainants have ever offered to pay the principal money // with the interest since grown due he this defendant doth not certainly know neither did he this defendant pay the // said monies upon the said conveyance or any part thereof. And this defendant doth utterly deny that the said // James MAXWELL Earl of DIRLETON did leave any monies in this defendant’s hands towards the discharge or satisfaction // of the said security or any part thereof or that he hath any part of the estate of the said James MAXWELL Earl of // DIRLETON in his hands or custody. And this defendant also saith that he hath not nor claims to have any estate title // right or interest in any of the lands in the said Bill mentioned nor ever made any estate of the same or any part thereof // to any person or persons whatsoever. And this defendant doth also deny that he did ever enter into any // confederacy or combination with the Lord Duke HAMBLETON [HAMILTON] or any person or persons whatsoever to defraud or // defeat the said complainants of their estate and interest in the said lands as by the said Bill of Complaint is most // unjustly and untruely alleged without that any other matters or thing in the said Bill of Complaint set forth material //  for him this defendant to make answer unto and not herein sufficiently answered unto confessed and // avoided traversed or denied is true. All which matters and things the said defendant is ready to [?] and prove // as this Honourable Court shall award and humbly prayeth to be hence dismissed with his reasonable costs and charges in // this behalf wrongfully sustained. //

Thomas [ENSISON?]

[end]

Further Answer of Robert ABBOTT

The Further Answer of Robert ABBOTT Scrivener unto the Bill of Complaint of the Right Hon Charles Lord CRANEBOURNE and Lady Diana his Wife Complainants.

29^th May 1651 John PAGE

This defendant being still unto himself now at all times all advantages of exception to the many uncertainties and insufficiencies of the said Complainant’s Bill of Complaint [?] other answer [?] // as so much as he conceives doth yet concern or remains any way material for him this defendant to make any further answer unto saith That he hath heard that James MAXWELL Earl of // DIRLETON did make a conveyance of part of the lands in the Bill mentioned unto William WESTON is by the said Bill is supposed but upon what consideration the conveyance was made or whether // the Consideration mentioned in the said deed of Conveyance (if any be therein at all mentioned) [were?] truly and really paid or only in colour and show and afterwards repaid the William WESTON // unto the said Earl of DIRLETON or upon what other terms conditions agreements between the said Earl of DIRLETON and William WESTON the said conveyance was made and executed he this // Defendant doth not know nor was he this defendant ever made privy to the passing of the said conveyance or to any other of the proceedings or passage between the said Earl and William // WESTON concerning the same and saith that to the making of the said conveyance between the said Earl of DIRLETON and William WESTON and to all matters and things inquired after by the said Bill of // Complaint concerning the same he this defendant is a mere stranger and of his own knowledge know nothing thereof and this defendant also saith that at the time when the bargain and sale was // made of part of the lands in the Bill mentioned unto Heneage FINCH, Henry PRATT, and John PRESTWOOD he this defendant did verily believe that the said conveyance was made really and bona fide // and that the monies paid upon the said bargain and sale as the consideration thereof were the proper monies of them the said Heneage FINCH and John PRESTWOOD or [?] // some of them nor did he this defendant they believe or imagine that there was any other intention in the making of the said bargain and sale and [?] other indenture of the same date then to [service?] // Unto the said Heneage FINCH, Henry PRATT, and John PRESTWOOD the repayment of the sum of five and twenty hundred pounds with the interest thereof which as this defendant was then [thoughly?]  // [Refunded?] was a true and [?] debt owing by him the said James MAXWELL Earl of DIRLETON unto to them the said Heneage FINCH, Henry PRATT, and John PRESTWOOD And although this defendant // Hath [?] since the putting in of his former answer unto the said Complainant’s Bill of Complaint partly by information from others and partly by the answer which the said John PRESTWOOD// hath likewise made unto the said Complaint’s Bill of Complaint that the said monies were the proper monies of the said Earl or DIRLETON  and that the said conveyance was only [intended ?] // [?] a trust for the benefit of the said Earl his heirs and assigns [unless?] he the said Earl should afterwards really borrow the sum of five and twenty hundred pounds of the aforesaid //John PRESTWOOD yet if any such agreement as these were made the same were transacted privately between the said Earl of DIRLETON and John PRESTWOOD and as this defendant believes // Were purposely concealed from the knowledge of him this defendant so that he this defendant is not able upon his own certain knowledge to make any further answer or [?] // Touching any part of the premises the he hath already made and this defendant likewise saith that the said Earl of DIRLETON did not leave in his hands nor to the knowledge of this defendant // In the hands of any other person or persons any money towards the discharge of the said several mortgages made to the said William WESTON and to the said Heneage FINCH and Henry // PRATT and John PRESTWOOD or either of them or the monies by them or either of them owing  or mentioned to be owing or any part thereof without that that any other matter or thing in the said Bill of Complaint // Matters and things he the said defendant to make further answer unto and not herein and hereby sufficiently answered unto confessed and avoided traversed or denied is true. All which // matters and things he the said defendant is ready to Abeur. And as this Honourable Court shall award and humbly prayeth to be hence dismissed with his reasonable costs and charges in that // Wrongfully sustained. //

Edw PECK.

Hillary 1650 to SMYTH

[end]