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Chancery Depositions (PRO C3/257/6 Wm Barnarde v Mary Barnarde widow and Rich Siday)

.6.1612 (June 1612)

document 16000679

to the right honourable Thos lord Ellesmore lord chancellor of England in most humble wise complaining shows unto your lordship for poor orator Wm Barnarde late of White Colne in Essex yeoman deceased whereas the right honourable Edw de Vere late earl of Oxford deceased was in his lifetime about twenty years since lawfully seised in his demesne as of fee in the manor of Barwick Hall with the appurtenances situate in White Colne and so being seised did take to wife Eliz now countess of Oxford dowager widow of the late earl which marriage so had and solemnized the said Edw did about some fifteen years last past bargain sell and assure the said manor unto sir Jerome Weston of Roxwell in Essex knight lately deceased and his heirs forever after which conveyance and assurance so had made the said Jerome Weston being lawfully seised of the manor with the appurtenances about some eight years since died so seised and one sir Rich Weston knight being son and heir to the said sir Jerome entered into the manor with its appurtenances as it was lawful for him so to do and being thereof so lawfully seised did by his indenture of lease about some seven years since demise and grant and farm let the said manor with its appurtenances to Wm Barnarde the father and his executors administrators or assigns for and during the term of twenty one years then to come upon such good considerations and covenants as in and by the said indentures of demise plainly appear and Wm Barnard the father so being by the virtue of the lease lawfully possessed of the manor with its appurtenances and the said earl of Oxford being also deceased the said Eliz now countess brought her writ of dower against sir Rich Weston for her thirds of and in the said manor with its appurtenances to which sir Rich appeared and defended the same yet the countess by trial at common law recovered a third part of the manor with its appurtenances and had the same apportioned delivered and set out in severalty and the possession thereof delivered her by the same after which division so made Wm Barnarde the father condescended and agreed with sir Rich Weston to hold occupy and enjoy the other two parts of the manor with its appurtenances and have his rents deducted and abated accordingly for the third part and it was also then further concluded and agreed between sir Rich Weston and Wm Barnarde the father that if it should or shall fortune that Eliz countess of Oxford should depart this life at any time during the term of twenty one years mentioned in the demise or lease that then the said Wm Barnarde the father his executors administrators or assigns should hold and enjoy the whole manor again with its appurtenances during the residue of the term then to come for such rents and upon such covenants as in and by the recited indenture of demise is set down and expressed and Wm Barnarde the father occupied manured and enjoyed the two parts of the manor with the appurtenances according to his agreement with sir Rich by the space of three years about after the recovery and then having made his last will in writing and whereby he nominated and appointed Mary Barnarde his then wife and executor Wm the father died and Mary not only neglected to prove the will by reason that the testator died further indebted than he was worth but the will being made private and secretly delivered unto her she concealing the same denied that there was any such will and persuaded the orator being the testator's only child to take letters of administration which he did accordingly and by the interest and right which his father had in the lease came to the possession of Wm Barnarde the son and he honestly and nicely satisfied and paid all his father's debts to his great loss and hindrance which being discharged Mary widow of Wm Barnarde the father being mother in law to the complainant combined herself with one Rich Siday her son by her first husband and they published and declared that there was such a will threatening him that if he would not assure his interest in the lease unto Mary for such considerations as Mary and Rich thought meet that then the debt being paid by the orator as aforesaid Mary would prove the will and take the lease from him as executor whereupon Wm Barnarde being unwilling to contend with her for that she had been his father's wife was persuaded and drawn by Mary and Rich to assign and set over his interest in the recited lease to his mother in law her executors administrators and assigns and the orator meaning honestly and plainly not mistrusting any fraud was by the enticements and devises of Rich Siday persuaded that one Wm Simpson of Buers St Mary in Suffolk kinsman to Mary and Rich should make the assignment from Wm Barnarde the son to Mary of his right and interest in and to the lease of Barwick Hall with its appurtenances and the complainant having a great confidence and trust in Rich Siday was contented that Rich should give instructions to Wm Simpson for the drawing and perfecting of the assignment whereupon Rich intending utterly to ruinate and overgrow the estate of the complainant which he knew well to be very small notwithstanding he knew that it was fully concluded and agreed between orator and Mary that Wm Barnarde the son should set over assign and assure unto her no greater or larger estate in the manor with the appurtenances than in him was nor that he should not warrant the recited lease nor anything therein contained in any sort whatsoever the said Rich contrary to the true intent and meaning aforesaid and against all right honesty equity and good conscience gave instructions to Wm Simpson his cousin a man not greatly experienced in such business to make the assignment in manner and form following first to recite the said grand lease of the manor with the appurtenances made from sir Rich Weston unto Wm Barnarde the father his executors administrators and assigns then to set down that by reason of the letters of administration all the goods and chattels of the testator came to this complainant and that he being so possessed for considerations by Mary and Rich devised by their cousin Simpson in the assignment set down which was made accordingly in so much that the complainant by his indenture dated the last day of 0.11.1607 did bargain sell grant assign and set over unto Mary the said grand lease and in the time and term of years then to come as in and to all and singular the premises thereby demised and also all the goods and chattels which were the orator's father's the words of the lease and all the time and term of years then to come of and in all and singular the premises thereby demised and also all the goods and chattels which were the orator's father's the words of the "habends" are these "to have and to hold as well the said indenture of demise and all the term of years to come and unexpired of and in all the premises and also the demised premises unto the said Mary Barnarde and the said Wm Barnarde deceased his executors administrators or assigns might should could or ought to have by force or virtue of the said demise or lease to him made or otherwise and to have and to hold all the said goods and chattels to the said Mary her executors administrators and assigns forever" with the very large words and covenants for the quiet enjoyment of the said lease goods and chattels as in and by the said recited indenture of assignment more at large it does appear making no mention therein of the countess's thirds recovered as aforesaid nor of the agreement between sir Rich Weston and Wm Barnarde as the father for the holding but the said two parts of the manor unless the countess should happen to die during the lease nor of the abatement and deducting of the rent of these which said assignment notwithstanding it was thus made contrary to ruling and agreement of the orator with the said Mary this complainant not knowing the validity and form of the words therein contained nor the inconvenience and danger he should run into was by the means aforesaid drawn to seal and deliver the same unto Mary as his act and deed which being done the said Rich Siday having taken council before how to entrap this complainant which was if he could draw him to seal and deliver the said Mary such an assignment with words of warranty as aforesaid that then the orator was compellable by law to make good unto Mary the third of the manor recovered by the countess and the said Rich Siday never ceased entreating and persuading his mother till he had procured her to make over the assignment to him which she had from this complainant that thereby he might have advantage against the orator which he having obtained presently thereupon and many times since has threatened to prosecute and commence his suit at common law against the orator with all extremity thereby to compel and enforce him to warrant the countess's third recovered long before he had any interest in the said leases contrary to the intent true meaning and agreement of the orator and of Mary and contrary to all right equity and good conscience in tender consideration whereof notwithstanding that the said Mary Barnarde and Rich Siday have oftentimes requested and entreated not only by the complainant but also by his friends that the assignment from him to his mother in law might be reformed altered and made acceptable to the agreement and true meaning of the orator and the said Mary or that some other release might be made from Mary and Rich to this complainant in discharge of the said warranty of the countess's thirds which was inserted contrary to the agreement yet the said Mary and Rich not only refuse so to do but also deny the agreement contrary to all right and equity for reformation whereof forasmuch as the complainant is without remedy by course of common law to relieve himself on his behalf may it please your honourable lordship the premises considered to grant the orator writ of subpoena directed to Mary Barnarde and Rich Siday commanding them either of them at a day certain and under a certain pain therein to be limited to personally appear before your good lordship in his majesty's court of chancery etc Tyffyn