Slike strani
PDF
ePub
[ocr errors]

in such manner as the Court should order and direct, or to that effect; after which said assignment so made, the earl believes that the said Mr. Edwards used great endeavours to obtain payment and satisfaction of the said debt from Mr. Wilson; but, finding all his endeavours fruitless, and that the said Wilson had long before stopped payment, and was in no condition of paying his creditors the whole of their debts, but that he was willing and had offered to come to a composition, and to pay them in proportion the utmost he was able; the said Mr. Edwards thereupon, about the 30th day of June in the year of our Lord 1722, preferred his petition to the said earl, as Lord Chancellor, setting forth in substance the state of the case, as before mentioned; and praying, "That it might be referred to one of the Masters of the Court, to see if such composition, so proposed by the said William Wilson, were for the benefit of the persons entitled to receive the same;" and the same was accordingly, by order of the said earl, referred to Mr. Hiccocks, the then senior Master of the Court, to inquire into, and make his Report therein, and about the 26th day of July then next following, the said Mr. Hiccocks made his report, "That the said William Wilson had, under his hand, in writing, proposed to assign over to the said Mr. Edwards as a composition for, and in full discharge of, the sum of 24,0467. 4s., therein mentioned to be due and owing from him to the said Mr. Edwards as assignee of the said Mr. Dormer, the sum of 10,000l., part of a large sum due to the said William Wilson from Edward Poulter of Hackney, gentleman, in this Article mentioned; and to pay the said Mr. Edwards in specie the sum of 1,4631. 2s. 1d., over and above the sum of 5601. then already paid to the said Mr. Dormer, in part of the said composition; and that, upon consideration had of the circumstances of the said William Wilson, and the said several matters, he was of opinion, that the accepting the said composition would be for the benefit of the person or persons entitled to receive the same." Upon which said report, the said Mr. Edwards, about the 3d of August then next, preferred another petition to the said earl, with the said report annexed; and thereby expressly prayed the said earl to order him the said Mr. Edwards to accept of the said composition: Whereupon the said earl, in a proper and usual manner, ordered the same as prayed. And the said earl saith, That he was informed, and believes, that the said composition was made and agreed to, upon a consultation of all or most of the Masters of the said Court, who the said earl did believe, would use their best endeavours to get as much as they could; and the said earl saith, he bath heard, and believes it to be true, that, besides the 1,4637. 2s. 1d., then paid down, there hath been since got in by Mr. Edwards, on account of the said debt from Edward Poulter, the sum of 1,000l. or thereabouts; and that, at the time of the said assignment, the said debt,

claimed by Wilson from Poulter, was a just debt, and judgment at law has been since obtained for 18,000l. part thereof; and the said Poulter was looked upon to be a substantial person, though, to avoid payment of the said Wilson's debt, which arose on account of their dealings in South Sea Stock and subscriptions in the year 1720, the said Poulter not only brought his bill in Chancery, but, after the same was dismissed, and that he was taken in execution at Wilson's suit at common law, he found means to make his escape out of the custody of the marshal of the court of King's Bench, and to get over to France or Holland, where he still continues, as the earl is informed; but he is likewise informed, that, after the said escape, a commission of bankruptcy was taken out against him by the said Wilson, upon which some effects were recovered; and likewise an action at law brought. and a verdict and judgment for 18,000l. and upwards, obtained by the said William Wilson against the marshal, on account of the said escape; and saith, he hath likewise been informed, that the said Edward Poulter, and the marshal have each of them offered considerable sums of money, by way of composition for the said debt; but the said Wilson, from a persuasion of the abilities of the said Edward Poulter to pay the whole, did at first refuse any composition with the said Poulter, and since hath been afraid to make any composition either with Poulter or the marshal: and what may be the consequence thereof with regard to the suitors of the Court, or what further sums of money may be recovered upon account of the said debt towards making them satisfaction, the earl saith, he cannot with any certainty take upon him to answer.

"XV. To the Fifteenth Article; the Earl saith, That, about the month of February in the year of our Lord 1720, he gave orders to his secretary, to write to the several Masters of the Court of Chancery, to bring in their accompts of the cash, effects, and securities, in their hands, belonging to the suitors of the Court; and believes he did so; but denies that the same was done with any unjust purpose, or with any thought to terrify the said Masters to make any contribution towards satisfying the demands upon the said office of Fleetwood Dormer: but believes, what they did contribute they paid freely and voluntarily, and out of their own money; and therein, as the said earl believes, did no more than follow a precedent of the like nature, on the failure of Dr. Edisbury, formerly a Master of the said Court. And the said earl saith, that his real and whole intention, in calling for the said accompts, was to inform himself, in the best manner he was able, of the state and condition of the several offices, and thereby to be the better able to make proper regulations concerning the same: And therefore, though the said Article seems to insinuate as if the calling for the said accompts was dropped as soon as the Masters

were prevailed on to contribute: the said earl cle; the said Earl saith, That the fact was, saith, That afterwards and without any regard that one Jackman having, in the cause in the thereto, he still continued to call for the said Article mentioned, been confirmed the best Masters' accompts: and, not finding them purchaser of part of the estate of T. Harper, at brought in as he expected, he did, about the the price of 2601. so long ago as the 19th of beginning of November following, cause ano- December, 1717; and it being at the same ther letter to be sent to them, requiring them time ordered, "That the writings belonging to to bring in their accompts; and, by both the such estate should be delivered to his counsel, letters sent to them on that occasion, he di- and that the tenants should attourn to him, on rected the particular method in which he would | his bringing his purchase-money before Mr. have their accompts made up; but the said earl, Dormer, then one of the Masters;" and the being afterwards convinced how difficult and said money having been brought before the tedious a work it would be, and what obstruc- said Master the 24th day of December, 1717, tion it would give to the business of the Court, and the tenants having attourned to Jackman; and that at last it could not be depended upon but the conveyances not being then executed, with any certainty, was forced to lay aside that though long before approved; a motion was design, and to content himself with going on made in the Court of Chancery, before the in the same road which his predecessors had said Earl, on the fifth day of December last, done; and humbly begs leave to observe, "That all parties might execute the conveythat what has been lately done with respect to ances, and the 2607. be paid to the plaintiff, the accompts of the said Masters, plainly shews towards satisfaction of a demand she had out the insuperable difficulties of such an under- of the estate of the said Harper;" and those taking. that were to have the residuum of the said T. Harper's estate insisted, "That they were al"XVI. To the Sixteenth Article; the Earl ways ready to join in the conveyances, if the saith, That he believes that on or about the purchase-money were applied to discharge the 17th of March, 1725, such order was made, as rest of the estate; that they were apprehensive in the said Article is mentioned, for Henry Ed- of a deficiency of Mr. Dormer's estate; and wards, esq. to pay Elizabeth Chitty 1,000l. therefore neither they nor the plaintiff ought to part of the money formerly brought before Mr. be sufferers by such deficiency, the delay havDormer; but does not remember that the said ing been occasioned by the purchaser, and not Henry Edwards made any complaint thereof by the plaintiff; and therefore scrupled exeto the said Earl; but believes Mr. Edwards, cuting the deeds, unless upon payment of the not having then sufficient effects of Mr. Dor- money to the plaintiff, and discharging the rest mer's in his bands, refused payment thereof; of the estate therefrom :" And this being the and that in July following, Mr. Lochman, in first time that any question relating to Mr. the Articles named, applied himself to the said Dormer's deficiency had been laid before the Earl several times and in a very earnest man- Court by any of the suitors, the said Earl took ner, to help the said Mrs. Chitty to the said notice of its being so; and believes he might 1,000l.; alledging, "That he the said Mr. express himself to this effect, "That he had Lochman was to marry her; and that he had indeed heard of the said Dormer's deficiency; made a composition with his creditors, upon but that it had never yet come judicially be which 1,000l. was to be paid in a very short fore him, upon complaint of any of the suitors time, which he then mentioned; and that he of the Court;" and further declared, "That the said Mr. Lochman was to have the said if there should be any deficiency in his office, 1,000l. for that purpose; and that if he had several circumstances had concurred thereto, it not by the time, the composition would be as Wilson's the banker's stopping payment, void, and he should be utterly ruined;" and greatly indebted to him; Poulter's going away at length the said earl, being greatly moved by in Wilson's debt 18,000l. and upwards, after a the pressing importunities of the said Mr. Loch- verdict and judgment at law, and Poulter in man, and by compassion for the very great actual execution for it; and that, as he had distress in which he then appeared to be, did heard, Wilson had then lately brought an acpromise to supply him with the said 1,000l. tion of escape against the marshal, and recoout of his own pocket; and accordingly di- vered a verdict against him for the like sum; rected Mr. Cottingham, then his secretary, to and how all these matters would at last come pay it, taking from the said Mrs. Chitty an as-out, the said Earl said, he did not know" or signment of the benefit of the said order; and believes the same was done accordingly; and that upon Mr. Lochman's pressing for a further sum for the said Mrs. Chitty, for her own use, the said Earl might tell him, "That the said 1,000l. was all that he must expect from the said Earl," and the said Earl does not believe that he had any discourse with the said Masters, to persuade them to pay the said 1,000l. to Mr. Lochman.:

9.00

“And as to the last branch of the said Arti

be expressed himself to that effect, and no other; and thereupon ordered, "That it should be referred to Mr. Edwards, to examine whe ther the said 260l. was deposited with Mr. Dormer for the benefit of any particular person, and whom and what was the occasion of the delay, that the said conveyances were not executed, and the said 2607. purchase-money paid out, before the year 1720; and whether there was likely to be a loss of any money deposited with the said Mr. Dormer; and that

upon the Master's report, such further order should be made, as should be just." And the said Earl hopes the said order was very proper and necessary; and takes the liberty of representing to your lordships, that this was after the accompts of the Masters had been laid by the said Earl before the Lords of the Council, and had been for some time under the consideration of the judges and others, appointed by his Majesty to inspect the same.

"XVII. To the Seventeenth Article; the Earl saith, "That he never endeavoured to conceal the deficiency occasioned by Mr. Dormer's failure; but, as the said earl was under a full persuasion that the same would all in due time be made good; and as Mr. Dormer's effects were coming in by degrees, and no application was made to him, by any of the persons concerned, to put a stop to or any restraint upon the payments; he did not think it incumbent upon him, er officio, to make a declaration of an average: And the said Earl saith, That he does not know that any order was made by him, for Mr. Edwards to pay any money that had been lodged with Mr. Dormer, except the order aforementioned in the case of Chitty; but believes several orders have been made by the Court for that purpose; and that the said Mr. Edwards, under a firm persuasion that the whole deficiency would be made good, paid out the whole sums so ordered, so far as the money then in his hands would extend.

"XVIII. To the Eighteenth Article, the said Earl saith, He never knew how the Masters kept or disposed of the money and effects belonging to the suitors of the Court; and as he believes that after Dr. Edisbury's failure, the then Lord Chancellor, so he knows that after Mr. Dormer's misfortune the said earl, thought of several methods to prevent any inconvenience upon the like accident for the future; but they had both the same misfortune, not to bring any of them to such perfection, as to venture to put them in practice.

"That several proposals were made to him by the persons he consulted upon that occasion, but none that he believes, it will be held criminal not to have then established. Some things were proposed that he thought impracticable, some insufficient, some inconsistent with that complete regulation he hoped to make. The objects be proposed to himself were, to provide for whatever deficiency might happen in the office late of Mr. Dormer, to secure the suitors from any future loss, and to make several regulations relating to the offices of the Masters; and he, thought these would be best done together; nor had he perfected the scheme of any one of them to his own satisfaction; he remembers no proposal, that he thought would take it totally out of the power of the Masters to dispose of the securities or effects, or effectually secure the cash. The said Earl admits, that he did not demand any security to be given by any of the said Masters at the time of their admittance, because it had

not been done by his predecessors, who were much wiser men than himself; nor was he so much as asked, by any of the parties interested, so to do: As to what the said Earl did with relation to the accompts of the said Masters, he hath already set forth; and saith, That he gave no permission nor encouragement to the masters of the court, to employ or traffic with the suitors money for their own gain or profit. He owns that with respect to the se curities in the hands of the Masters, be made no general order; and thinks it the less material, because, notwithstanding what is alledg ed in the close of this Article, he believes all the present Masters did, in December last, produce all the securities in their hands, and the Court of Chancery hath since secured the same for the benefit of the suitors.

"XIX. To the Nineteenth Article; the said Earl saith, That, upon great consideration of Mr. Dormer's deficiency, and of the danger there might be of further inconveniences with relation to the money and effects in the hands differences that had arisen in the Court of of the Masters, and of several disputes and Chancery, and of some applications of the said Masters for establishing them in their just which the said Earl thought ought to be rerights, and of some practices of the Masters formed; he was convinced, that the same was a work of too great a consequence for him singly to attempt; and, being highly sensible of his most sacred Majesty's paternal goodness to his people, did presume humbly to beseech his Majesty, as the fountain of justice, to depute some of his most honourable privy council, to take the matters aforesaid into, conside ration, in order to the establishing such regulations, as might tend to the honour of that high Court, and to the advantage of his Majesty's subjects being suitors there; which request his Majesty, out of his wonted goodness, was pleased to receive very graciously, and named several lords, and other honourable persons of his privy council, to be a Committee to take the saine into consideration; and, pursuant to his Majesty's command, the said Committee met, and began with the accompts of the said Masters; wherein the said Earl begs leave to appeal to such of your lordships who attended in that Committee, whether be did not contribute to the utmost of his power, to have every thing done which the said Committee thought expedient; Aud the said Earl saith, That he made all such orders as were by them judged requisite; and so pressed the execution thereof, that not only the accompts of all the Masters then in being were brought in, but all the securities in all their hands; and the cash of most of them were actually lodged in the Bank of England; and therefore the said Earl is greatly surprised to find himself charged with obstructing the taking those accompts which he had thus desired might be taken, and contributed to the taking of them with all his power: And the said Earl saith,

That he never thought of preventing a parliamentary inquiry, any otherwise than by making it unnecessary, and procuring to the suitors a full redress of all their grievances, and rectifying whatever he found amiss; and that he looked upon to be his duty; and begs leave to say it here once for all, in answer to all the several insinuations of that kind contained in the Articles.

"And the said Earl further saith, That, while the said Accompts were taking, every one of the said Masters declared over and over, "That they had effects sufficient to answer their whole accompts;" and the said Earl firmly believed the same to be true; and as all of them that he saw (which he believes were all, or at least all but Mr. Kynaston) had told the said Earl, "That they were able to answer their accompts;" and when they brought their accompts to the said Earl, for him to lay before the said Committee, Mr. Holford had wrote under his accompt some declaration to that effect; and some others of them, as he remembers, had made use of some other expressions, which he thought not so proper, and some, as he believes, had wrote nothing (but he cannot distinguish the persons): And the said Earl thinking that, when the said accompts

came to be laid before the Committee of council by him, it would be proper that the same thing should be declared to the Committee, which had been said to him singly; he advised them all to write the same words under their accompts; and did tell them, in great sincerity and friendship, "That, at a time when so many men's mouths were open against them as insolvent, it would be for their honour and interest to make it appear that they were able and sufficient, as he then believed them to be;" but never thought of a contrivance to have them deceitfully appear or seem what they really were not; and he says, they did then withdraw to make the subscription, or at least so many of them whose accompts were then ready, and soon after delivered them to the said Earl, who carried them with him to the Committee of council, whither he was then going, without looking upon them; but, upon reading them at the council, it was observed, that they had not all used the same words, having varied considerábly; but what any of the subscriptions were, he cannot take upon him to set forth.

"And the said Earl further saith, That a subsequent order being made by the said Earl, for the said Masters to produce their securities and their cash, before the persons appointed to inspect their accompts, they made great complaint, that so many hundred thousand pounds should be required at so short a warning; and some of them, saying, "that though they had effects sufficient, and could raise the whole if they had a little time," desired the said Earl to allow them further time for that purpose: But the said Earl saith, That he required them to bestir themselves, and raise it immediately, telling them, "that, since they VOL. VIIL

bad effects to give security, they might find friends to furnish the money;" and believes he did say, "That some of their own brethren might perhaps be able to let them have money, till they could raise it another way."

"But if any of them did supply others with cash or effects to produce, only to make a false shew and appearance of their ability and readiness to answer the balance of their accompts, the said Earl knows nothing of it, and is sure they had not the least encouragement from him so to do.

Earl saith, That it never entered into his "XX. To the Twentieth Article; the said thoughts to make use of, nor did he ever make use of, any of the money belonging to the suitors of the court, for his own private advantage; but believes that, in December 1720, having occasion for the sum of 1,500l. and ther he could lend him the same?" he said, asking his secretary Mr. Cottingham, "Whe

and accordingly borrowed the same from Mr. He could not, but would procure it for him; Godfrey, one of the Masters of the said Court; and the said Earl gave his own note for payFebruary following re-paid 1000l. part of the ment thereof to the said Mr. Godfrey; and in said principal sum; but in the same month of February 1720, upon a fresh occasion, borrowed again part of the said 1000l. so paid back, and a note or notes were given for the payment thereof; and some time after, the said Earl ordered the whole money borrowed of the said Mr. Godfrey to be paid, with all the interest due for the same; and the said Godfrey received the principal, but would not be prevailed upon to take the interest, or any

the said money was repaid within the compass part thereof: And the said Earl saith, That all of a year after it was borrowed; and the said Earl declares, That he never received or borrowed any sum or sums of money whatsoever of any of the Masters of the said Court, except as above set forth.

"XXI. To the One and Twentieth Article the said Earl saith, That, upon the strictest review of his own behaviour during the time he had the honour of serving his most sacred Majesty in the office of Lord Chancellor, be is not conscious to himself that he ever did, in any illegal or arbitrary manner, extend his power, or the power of the Court, beyond their lawful and just bounds; or that he did arbitrarily or illegally assume to himself, as Lord Chancellor, or by colour of his office, auy unjust and unlimited power of dispensing with, suspending, or controuling, the laws or statutes of this realm; or that he any ways oppressed the suitors of the Court, or was guilty of any breach or violation of the rights or liberties of the subject, or of his own oath as Lord Chancellor And with regard to the particular complaint against him in this Article; the said Earl saith, That Rachael Tyssen, in the Article named, as the Earl is informed, caused a bill to be exhibited in the Court of Chancery, in the name of 2 G

[ocr errors]

6

that particular; and the said John Tyssen and sir Cæsar Child (whose daughter the said John Tyssen had married) had such confidence in him the said Robert Doyley, that, upon the 18th day of March 1718, they entered into a recognizance, together with him, in the penalty of 7,000l. for the said Robert Doyley's duly accounting for and paying the money he should receive out of the said infant's estate: And the said Earl saith, That no complaint was ever made to the said Earl against the said Robert Doyley to the time of his death; but he owns that he hath beard, that, upon the Masters stating the accounts since Christmas last, there does appear due from the said Robert Doyley about 2,500l. or 2,600l.; but believes there is not any fear or doubt but that the same is very well secured by the said recognizance.

"And the said Earl saith, That he does not remember the particular expressions used by the counsel, or himself, upon arguing or re-arguing the said exceptions; but he cannot be lieve that any counsel of great ability and expe rience in the said Court would have thought what the said Earl did extraordinary, much

said Earl as in the Articles, which is an indecent censure of his proceedings; and here being a decree in this case, approved of by all parties,

her son and daughter, in the said Article like-fore was to take care of the infant's interest in wise mentioned, by their prochein Amie, against herself, and the said John Tyssen and others, to have the trusts in the will of her late husband duly performed; and the same was brought to hearing, at the Rolls, the seventh day of July 1718; and, by the decree then made, it was, amongst other things, ordered, upon the prayer (as the said Earl bath heard and believes) of the counsel employed by the said Rachael Tyssen, That a receiver should be appointed, of the rents and profits of the real estate, who was to have a salary allowed him, and power to let and set the said cstate, as there should be occasion, with the approbation of the Master to whom the cause was referred: And the said Earl saith, That, in execution of that part of the decree which directed a receiver to be appointed, the Master having certified, That he had appointed John Nicholas esquire to be the receiver of the rents and profits of the said estate; the said John Tyssen, thinking himself aggrieved thereby, did, in the usual course of proceedings in the said court, cause exceptions to be filed against the same; and, upon the arguing thereof before the said Earl by counsel of both sides, affidavits were read, to shew That the said Johnless would have used such an expression to the Nicholas was an improper person; that the said testator had declared in his life-time, that the said John Nicholas, by name, should not have any thing to do with the management of his estate; and that a considerable part thereof consisted in old houses and water-works.' And the said Earl, upon a full hearing of both parties, was of opinion, that the said John Nicholas ought not to be appointed the receiver; and, upon the proposal of the said John Tyssen, then in court, ordered Robert Doyley esquire to be receiver, he giving security to be approved of by the said Master; which order was made, as he believes, on the fifteenth of January in the year 1718, and affirmed upon the re-arguing the same exceptions on the 6th of March 1718; since which time, the parties in terested have never thought fit to complain thereof to your lordships by appeal, in order to have it reversed, as mistaken or unjust, though now the making thereof is complained of as a crime. And the said Earl is not ashamed to own, that he was very well acquainted with the said Robert Doyley for some years before the said order, and believed him to be a person of great honour and integrity, application and exactness; and believes there are several persons of distinction, to whom he had the honour to be known, who had the same opinion of him; but the said Earl did not appoint him receiver because of his own respect for him, but because he was named by the said John Tyssen, who was uncle of the said infant, and executor of his father's will, in trust for him, and by the same will appointed his guardian, in case of his mother's death or marriage, and to whom the said testator had devised the said estate in case of the death of the said infant without issue male, and whose interest it there

That a receiver should be appointed to receive the rents and profits of the infant's estate,' the said Earl is at a loss to understand how the fixing on the person to be the receiver, upon good security to account for and pay the same for the infant's use, is reviving the Court of Wards, whose business it was to take the rents and profits of the infant's estate for the King's use, without accounting for any of them to the infant, but barely providing a maintenance for him, at the discretion perhaps of some grantee of the custody.

"Thus the said Earl has laid his case before your lordships; and doth further, for Answer to all the said Articles, say, That he is not guilty of all or any of the matters contained in the said Articles, or any of them, in manner and form as they are therein charged against him: And the said Earl doth further insist upon the benefit of his Majesty's most gracious and general free pardon, granted to all his subjects (not therein excepted,) in and by an act of parliament for that purpose made, in the 7th year of his Majesty's reign, in bar of, and. in his defence against, his said Impeachment, and the said Articles exhibited in maintenance thereof, and all and every the proceedings thereupon, so far as the same extend to any neglect, offence, or misdemeanor, or supposed neglect, offence, or misdemeanour, or any other act, matter, or thing, suffered, doue, or committed, or omitted, by him the said Earl, before the 24th day of July in the year 1721; and. doth humbly insist, that no evidence ought to be given against him, for or concerning any of the matters or things aforesaid, in and by the

« PrejšnjaNaprej »