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Barnard vs. Barnard & Siday

Complaint (GOTO Answers)

PRO C3/257/6/1 (19 June 1612)

NB: Habend{um} in the text below refers to the Latin legal phrase Habendum et tenendum - "To have and to hold" (OED).

19 Iunij 1612 Clapham

To the right Honorable Thomas Lorde Ellismere Lorde Chauncello{u}r of England

In moste humble wise Complayninge sheweth vnto yo{u}r good Lo{rdsh}ippe yo{u}r poore Orato{u}r Will{ia}m Barnarde sonne of Will{ia}m Barnarde late of White Colne in the Countie of Essex yeoma{n} deceassed. That whereas the right honorable Edwarde de Veer late Earle of Oxenforde deceassed was in his life time about Twentie yeares since lawefullie seised in his demeasne as of ffee of & in the Mano{u}r of Barwicke hall w{i}th thapp{ur}ten{au}nc{es} scituate lyinge & beinge in White Colne aforesaid And so beinge thereof seised did take to wiffe Elizabeth the nowe Countesse of Oxenforde dowager widdowe of the saide Earle which Marriage so had & solempnized the saide Earle did about some ffifteene yeares nowe last paste bargen sell & assure the said Mano{u}r w{i}th thapp{ur}ten{au}nc{es} vnto one S{i}r Ierome Weston of Roxwell in the saide Countie of Essex knighte latelie deceassed & to his heires for ever After w{hi}ch Conveyaunce & assur{a}unce so had & made the said S{i}r Ierom Weston beinge lawefullie seised of the saide Mano{u}r w{i}th thapp{ur}ten{au}nc{es} as aforesaid about some eight yeares since died thereof so seised and one S{i}r Richarde Weston knight beinge sonne & heire appar{a}unte to the saide S{i}r Ierome entred in to the said Mano{u}r w{i}th thapp{ur}ten{au}nc{es} as it was lawefull for him to doe and beinge thereof so lawefully seised did by his Indenture of lease about some seaven yeares since demise gr{a}unte & to ferme lette the saide Mano{u}r w{i}th thapp{ur}ten{au}nc{es} to the saide Will{ia}m Barnarde the father his executo{u}rs ^\\administrato{u}rs// & assignes for & duringe the terme of xxj yeares then to come vpon such good considerac{i}ons & Cove{na}unt{es} as in & by the saide Indenture of demise more plainelie at large doeth & maie appeare And the saide Will{ia}m Barnarde the father so beinge by vertue of the saide lease lawefullie possessed of the said Mano{u}r w{i}th thapp{ur}ten{au}nc{es} And the said Earle of Oxenforde beinge allso deceassed as aforesaide the said Elizabeth nowe Countesse brought her writte of dower against the saide S{i}r Richarde Weston for her Third{es} of & in the saide Mano{u}r w{i}th thapp{ur}ten{au}nc{es} to w{hi}ch the said S{i}r Richarde appeared & defended the same yet the saide Countesse by a triall at the Com{m}on Lawe recovered the thirde p{ar}te of the saide Manor w{i}th thapp{ur}ten{au}nc{es} And had the same apporcioned devided & sette out in severaltie & the possession thereof delivered to her by the Sheriffe of the saide Countie accordingelie and thereby enioyed & still doeth enioy the same After w{hi}ch devic{i}on so made the saide Will{ia}m Barnarde the father condiscended & Agreed w{i}th the saide S{i}r Richarde Weston to holde occupy and enioy the other two p{ar}t{es} of the saide Mano{u}r w{i}th thapp{ur}ten{au}nc{es} and had his rente deducted & abated accordingelie for the saide thirde p{ar}te It was allso then further concluded & agreed betweene the saide S{i}r Richarde Weston & the saide Will{ia}m Barnarde the father That if it shold or shall fortune the saide Elizabeth Countesse of Oxenforde to dep{ar}te this life at any time duringe the saide terme of xxj yeares mencioned in the said demise or lease that then the saide Will{ia}m Barnard the father his executo{u}rs Administrato{u}rs or Assignes shoulde holde & enioy the whole Mano{u}r againe w{i}th thapp{ur}ten{au}nc{es} duringe the residue of the saide terme then to come for suche Rentes & vpo{n} such Coven{a}unt{es} as in & by the saide receited Indenture of demise is sette downe & expressed and the saide Will{ia}m Barnarde the father occupied manured & enioyed the saide two p{ar}tes of the saide Mano{u}r w{i}th thapp{ur}ten{au}nc{es} accordinge to his agreem{en}te w{i}th the saide S{i}r Richarde by the space of three yeares or there about{es} after the saide recoverie and then havinge made his last will & testam{en}te in writinge wherein & whereby he nominated & appointed Marie Barnarde his then wiffe to be his executrix the saide Will{ia}m the father died And the saide Marie not onelie neglected to prove the saide will by reason that the saide Testato{u}r died further indebted then he was worthe but the will beinge made in private & secretlie delivered vnto her she concealinge the same denied that there was any such will and p{er}swaded yo{u}r saide Orato{u}r beinge the Testato{u}rs onelie childe to take l{ett}res of Administrac{i}on w{hi}ch he did accordinglie whereby the interest & right w{hi}ch his saide father had in the saide lease as aforesaide came to the possession of the saide Will{ia}m Barnarde the sonne and he honestlie & iustelie satisffied & paide all his fathers debt{es} to his greate losse & hinder{a}unce w{hi}ch beinge discharged the said Marie the relicte widdowe of the saide Will{ia}m Barnarde the father beinge but mother in Lawe to this Compl{ainan}t combyned her selfe w{i}th one Richarde Sidaie her sonne by her first husbande & they published & declared that there was such a will as aforesaid threateninge him that if he would not assure his interest in the saide Lease vnto the saide Marie for such considerac{i}ons as the saide Marie & Richarde thoughte meete that then (the debt{es} beinge paide by yo{u}r saide Orato{u}r as aforesaid) the saide Marie woulde prove the saide will & so take the saide lease fron him as executrix wherevpo{n} the saide Will{ia}m Barnarde the sonne beinge vnwillinge to contende w{i}th her for that she had beene his fathers wiffe was p{er}swaded & drawen by the saide Marie & Richarde to assigne & sette over his saide interest in the saide rented lease to his said mother in lawe her executo{u}rs Administrato{u}rs & Assignes And yo{u}r saide Orato{u}r meaninge honestlie & plainelie not mistrustinge any fraude was by the inticem{en}t{es} & devices of the saide Richarde Sidaie p{er}swaded that one Will{ia}m Simpson of Bures Ste Marie in the Countie of Suff' kinseman to the saide Marie & Richarde shoulde make the saide assignem{en}t{es} from the saide Will{ia}m Barnarde the sonne to the said Marie of such his ^\\saide// right & interest in & to the saide lease of Barwickhall w{i}th thapp{ur}ten{au}nc{es} And the saide Compl{ainan}t havinge a greatte confidence & trust in the saide Richarde Sidaie was contented that the saide Richarde shoulde give instrucc{i}ons to the saide Will{ia}m Simpson for the draweinge & p{er}fectinge of the saide Assignem{en}te wherevpon the saide Richarde intendinge vtterlie to ruinate & overthrowe the estate of this Complayn{a}unte w{hi}ch he knewe to be verie small notw{i}thstandinge that he knewe that it was fully concluded & agreed betweene yo{u}r saide Orato{u}r & the saide Marie that the saide Will{ia}m Barnarde the sonne should sette over assigne & assure vnto her noe greater nor larger estate in the saide Mano{u}r w{i}th thapp{ur}ten{au}nc{es} then in him was nor that he should not warr{a}unte the saide recited lease nor any thinge therein conteyned in any sorte whatsoever the saide Richarde contrarie to the true intente & mea= ninge aforesaide & against all right honestie equitie & good conscience gave instrucc{i}ons to the saide Will{ia}m Simpson his Coussen a man not greatelie experienced in such businesses to make the saide Assignem{en}te in manner & forme followinge first to recite the saide grounde lease of the saide Mano{u}r w{i}th thapp{ur}ten{au}nc{es} made from the saide ^\\S{i}r// Richarde Weston vnto the saide Will{ia}m Barnarde the father his executo{u}rs Administrato{u}rs & Assignes then to sette downe that by reason of the saide l{ett}res of Administrac{i}on all the good{es} & chattell{es} of the saide Testato{u}r came to the possession of this Compl{ainan}t & that he beinge so possessed for considerac{i}ons by the saide Marie & Richarde devised and by their saide Coussen Simpson in the saide Assignem{en}te sette downe w{hi}ch was made accordingelie in= so much that the saide Compl{ainan}t by his Indenture bearinge date the laste daie of November in Anno D{omi}ni 1607 did bargen sell gr{a}unte assigne & sette over vnto the saide Marie the saide grounde= lease and all the time & terme of yeares then to come of in & to all & singuler the p{re}misses thereby demised and allso all the good{es} & chattell{es} w{hi}ch weare yo{u}r saide Orato{u}rs fathers, the wordes of the Habend{um} are theis To have & to holde aswell the saide Indenture of demise & all the terme of yeares to come & vnexpired of & in all the p{re}misses and allso the demised p{re}misses vnto the saide Marie Barnarde her executo{u}rs & Assignes in as large ample & beneficiall manner as the said Will{ia}m Barnarde deceassed his executo{u}rs Administrato{u}rs or Assignes mighte should coulde or oughte to have by force or virtue of the saide demise or lease to him made or otherwise And to have & to holde all the saide good{es} & chattell{es} vnto the saide Marie her executo{u}rs Administrato{u}rs & Assignes for ever w{i}th verie large wordes & Coven{a}unt{es} for the quiet enioyinge of the saide lease goodes & Chattell{es} as in & by the saide recited Indenture of Assignem{en}te more at large it doth & maie appeare makinge noe menc{i}on therein of the saide Countesses Third{es} recovered as aforesaid nor of the saide agreem{en}te betweene the saide S{i}r Richarde Weston & the saide Will{ia}m Barnarde the father for the holdinge but of the saide two p{ar}t{es} of the saide Mano{u}r vnlesse the said Countesse shoulde fortune to die duringe the saide lease nor of the abatem{en}te & deductinge of the Rente as aforesaide w{hi}ch saide Assignem{en}te notw{i}thstandinge it was thus made contraiie to meaninge & agreem{en}te of yo{u}r saide Orato{u}r w{i}th the saide Marie this compl{ainan}t ^\\not knoweinge the validitie & force [of the ...] of the wordes therein conteyned nor the inconvenience [&] or daunger he should runne into// was by the meanes aforesaid drawen to seale & deliver the same vnto the saide Marie as his Acte & deede w{hi}ch beinge done the saide Richarde Sidaie havinge taken Councell before howe to intrappe this Compl{ainan}t w{hi}ch was that if he coulde drawe him to seale & deliver to the saide Marie such an Assigem{en}te [sic] w{i}th wordes of warr{a}untie as aforesaid that then yo{u}r saide Orato{u}r was compellable by the lawe to make good vnto the saide Marie the Third{es} of the said Mano{u}r recovered by the saide Countesse as aforesaid the saide Richarde Sidaie never ceased p{er}swadinge & intreatinge his saide mother vntill he had p{ro}cured her to make over the saide Assignem{en}te to him w{hi}ch she had from this compl{ainan}t that thereby he might have adv{a}untage against yo{u}r saide Orato{u}r w{hi}ch he havinge obteyned presentelie therevpo{n} & many times since hath threatned to p{ro}secute & com{m}ence his suite at the como{n} lawe against yo{u}r said Orato{u}r w{i}th all extremitie thereby to compell & inforce him to warr{a}unte the Countesses Third{es} recovered longe before he had any interest in the saide lease as aforesaid contrarie to the intent true meaninge & agreem{en}te of yo{u}r saide Orato{u}r & of the said Marie and contrarie to all right equitie & good Conscience In tender ^\\considerac{i}on// whereof notw{i}thstandinge that the saide Marie Barnarde & Richarde Sidaie have beene oftentimes requested & intreated not onelie by the said Compl{ainan}t but allso by his friend{es} that the saide Assignm{en}te from him to his mother in lawe might be reformed altered & made accordinge to the agreem{en}te & true meaninge of yo{u}r saide Orato{u}r & the saide Marie or that some other release might be made from the saide Marie & Richarde to this Compl{ainan}t in discharge of the saide warr{a}untie of the saide Countesses Third{es} w{hi}ch was inserted contrarie to the saide agreem{en}te yet the said Marie & Richarde ^\\not onelie// refuse so to doe but allso denie the saide agreem{en}te contrarie to all right & equitie for reformac{i}on whereof forasmuch as the said Compl{ainan}t is w{i}thout remedie by the Course of the comon lawe to relieve him selfe in this behalfe Maie it please yo{u}r honorable good Lo{rdsh}ippe the p{re}misses considered to gr{a}unte vnto yo{u}r saide Orato{u}r his Ma{ies}t{ies} gracious writte of Subpena to be directed to the saide Marie Barnarde & Richarde Sidaie comaundinge them & either of them thereby at a daie certen & vnder a certen paine therein to be lymited to be & p{er}sonallie to appeare before yo{u}r good Lo{rdsh}ippe in his Ma{ies}t{ies} highe Courte of Chauncerie to awnswere [3 minims?] the p{re}miss{es} & to stande to abide such further order & directio{n} therein as to yo{u}r good Lo{rdsh}ippe shall seeme to stande w{i}th right equitie & good Conscience And yo{u}r saide Orato{u}r shall & will dailie praie for the pres{er}vac{i}on of yo{u}r Hono{u}r in good Hono{u}r in health longe to continue

Barnard vs. Barnard & Siday

Answers (GOTO Complaint)

PRO C3/257/6/2 (19 June 1612)

Vterq{ue} iur{ati} 29 Iunij 1612

The Ioynt and seu{er}all answers of Mary Bernerd Wydowe and Richarde Sydey defend{an}t{es} To the bill of Complainte of Will{ia}m Bernerd Complain{an}te

The saide defend{an}t{es} savinge to them selves the benifitte of exception to the Incertentie & Insufficiency of the saide bill nowe and at all tymes hereafter they answere and saye that they tyinke it to be true that Edwarde late Earle of Oxen' named in the saide bill was in his lyfe seized of some estate of Inheritance of and in the saide Mannor of Berwicke Hall named in the saide bill of Complain{an}te [sic] And the saide Earle beinge soe seised did Marry and take to wyfe Elizabeth the nowe Countesse of Oxen' named also in the saide bill. And theise defend{an}t{es} doe also thinke it to be true that afterwardes the saide Earle did sell the ^\\saide// mannor vnto S{i}r Ierome Weston knight also named in the saide bill. And afterwardes the saide S{i}r Ierome died seised of the saide Mannor by and after whose death the same Mannor as these defend{an}t{es} doe beleeve discended vnto S{i}r Richard Weston knight as sonne and heire to the saide S{i}r Ierome Weston. And w{i}thin a shorte tyme after the death of the saide S{i}r Ierome Weston, the saide S{i}r Richard Weston his sonne did by his deede Indented dated In or about the Moneth of Ianuary in the seconde yeare of the raigne of our Sou{er}aigne Lorde the King{es} Ma{ies}tie that nowe is over these his Realmes of Englande ffraunce & Irelande demyse graunte and to fearme lett vnto Will{ia}m Bernerd the father of the saide Complain{an}te The Scyte of the saide Mannor w{i}th Certeine howses buylding{es} landes Tenement{es} and hereditament{es} mentioned and Contayned in the saide Indenture for certeine yeares yett to Come and not expired w{i}th and vnder suche Coven{a}unt{es} exceptions Condic{i}ons reservac{i}ons payment{es} and agreement{es} as are Contayned In the saide Indentures whervnto for the more Certentie therof these defend{an}t{es} doe referre them selves more at large it doeth and maye appeare. And these defend{an}t{es} doe also Confesse that they thinke it to be true that after the makinge of the saide lease, The saide Countesse of Oxen' did recover a thirde parte of the sayde mentioned demysed p{re}misses from the saide S{i}r Richarde Weston for her dower and had Iudgment and execution therof accordinglie, and nowe yett doeth holde & enioye the same in seu{er}altie as ten{au}nte in dower by vertue of the saide recou{er}y. And by reason therof these defend{an}t{es} doe also beleeve that after the saide recovery and iudgment and execution deliu{er}ed to the saide Countesse The saide S{i}r Richard Weston did abate one thirde p{ar}te of the rente Reserved to him by the saide Indenture as in lawe & Iustice it ought to be. And theise defend{an}t{es} doe also Confesse that they doe also thinke it to be true that the saide Will{ia}m Bernerd the Lessee w{i}thin a shorte tyme after the saide execution died possessed of the other two part{es} of the lease of the saide landes tenem{en}t{es} and hereditam{en}t{es} mentioned to be demised as is aforesaide / And this defend{an}t Mary Bernerd for her selfe further answereth and sayeth that shee never did nor mente to sett forth anie suche will or to take vpon her ananie suche executorship as is mentioned or p{re}tended In the saide bill of Complainte, ffor this defend{an}t was willinge and yett is well pleased and Contented that the saide Complain{an}t should have take and enioye the sole administration of all the good{es} and Chattells of his saide father towerds the payment of his saide fathers debt{es}. And concerninge the saide supposed bargaine and assignem{en}t of the saide Lease of the Mannor of Barwicke Hall in the saide bill supposed to be Indirectlie obtayned and Cavtelovsly [word in a different hand] assigned by the Complain{an}te to this defend{an}t Mary Barnerd by the solicitac{i}on or procurem{en}t of the saide Richarde Sydey thother defend{an}t / These defend{an}t{es} doe therevnto answere and saye that theire bargaine betwene the saide Mary and the Complain{an}te made for the saide lease was on her parte made playenlie and truely and w{i}thout anie entente of fraude or Circumvention. And the saide Complain{an}te did give to the saide Master Simpson named in the saide bill directions to make the assuerance therof. W{hi}ch saide M{aste}r Sympson beinge a man of good vnderstandinge honestie and experience hath truelie & faythfullie done the same accordinge to theire true Intente & meaninge as theise defend{an}t{es} are verylie p{er}swaded, howe soeu{er} the saide Complain{an}te now vniustlie seemeth to Clamo{u}r both against the saide Mr Simpson and his owne wryting{es} wrytten by his owne direction and p{ro}curement, w{i}thout that the saide Complain{an}te did trust the saide Richard Sydey to give Instructions to the saide Mr Simpson for the drawinge and p{er}fectinge of the saide assignement as in the saide Bill is most vntrewlie alledged, for these defend{an}t{es} doe saie and affirme that the same assignement as they doe take it was drawen and made w{i}th all Indifference and accordinge to theire agreement. And for the Considerac{i}ons therin mentioned and Contayned, w{i}thout that the saide assignement was made Contrary to the meaninge and agreement of these defend{antes} & of the saide complainant as in the said bill is also vntrulie alledged And both these defendant{es} are so farre from anie desire to have anie Contention or sewt{es} w{i}th the saide Complain{an}te, That heretofore they have ben very forwarde and desirouse all questions whatsoeu{er} shoulde be quietlie ended betwene them, w{hi}ch they are p{er}swaded had ben longe eithence effected, yf some other p{er}sons had not hindred the same. And both these defend{an}t{es} are still willinge & desirouse of anie good and Iuste ende to be made betwene them by anie Indifferent p{er}sons whatsoeu{er}. W{i}thout that that anie other matter or thinge Contayned in the saide bill Materyall or effectuall for these defend{an}t{es} or eyther of them to answere vnto & herein before not Sufficientlie Confessed avoyded trau{er}sed or denied is true in suche manner and forme as the same in the saide bill is sett forth and declared All and every w{hi}ch matters these defend{an}t{es} are readie to averre and prove as it shall please this honorable Courte to awarde and praye to be dismissed w{i}th theire Cost{es} and Charg{es} in this behalfe most wrongfullie Susteyned

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