Chancery Depositions (PRO C5/44/2 Robt Aylett v Robt Abbutt)

27.4.1664 (Wednesday 27 April 1664)

document 16700554

humble complaint and showing unto your honour the orator Robt Aylett of Stisted gentleman that one Edw Westney late of Halsted in Essex and since of Stisted yeoman being as the orator has heard disappointed in monies due to him for the supply of his occasions in or about .11.1656 borrow of one Robt Abbutt of Earls Colne in the said county yeoman the sum of 50li or such like money and for the security of repayment thereof with interest the said Edw Westney by his writing obligatory dated as is mentioned 7.11.1656 became bound unto Robt Abbutt in the penal sum of 110li with condition for the repayment of the sum of 58li6s on or about 18.11.1657 but whether the said writing bears date as abovesaid or what was the certain sum of money the said Westney did borrow of the said Abbutt the orator knows not he then being no way privy to the dealings of the said Westney and the orator further shows that at the time mentioned for the borrowing of the monies Westney was of good estate and ability and so continued for several years and did afterwards as this orator has been informed well and truly pay and satisfy to Robt Abbutt the sum of 58li6s either upon the day limited and appointed for payment according to the condition of the writing obligatory or at a day shortly after and at the same time Westney did pay the monies to Abbutt in discharge of the obligation he did demand of Abbutt the obligation to be delivered up to him to be cancelled which the said Abbutt did then refuse to do pretending that he had mislaid the obligation and could not then find it but at the same time of the payment of the said monies as aforesaid Abbutt as the orator has been informed faithfully promised to Westney that he would presently after make search for the obligation and upon finding of it either cancel it or else send or deliver the same to Wesney or in case it should not be found he Abbutt would give a sufficient release of the obligation and monies so by him received unto Westney but he has hitherto failed in the performance of these particulars unto him and the orator shows that Westney some years after the time of the borrowing of monies of Abbutt had many great losses and hindrances in his trading and dealing being indebted to several persons in several sums of money and amongst others to the orator in the sum of 200li did about the month of .9.last absent himself from his place of abode which Abbutt taking notice of and having then in his custody the said writing obligatory uncancelled minding if he can be doubly paid the said 58li6s did about the month of .11.last being after the time of Westney's absenting himself pretend and give out that the orator had undertaken and made promise to pay him his intended debt which he claimed by the said obligation and upon the pretences of such promises albeit the said Abbutt does very well know that the monies due by the obligation were fully paid and discharged by Westney yet he has lately recommenced an action of the case upon a supposed promise in his majesty's court of kings bench against the orator and in hilary term last issued forth a declaration against him pretending therein amongst other things that for the obtaining of 110li being the penalty of the obligation he Abbutt 30.5.15Chas2 intend to sue Westney upon the obligation whereof the orator as is pretended did then take notice and then in consideration that the said Abbutt at the request of the orator as is pretended would forbear to sue Edw Westney upon the writing obligatory and the orator did then promise as in the declaration is supposed that he would pay Abbutt by after the pretended promise so much money as Edw Westney did owe to him the said Robt and does in his declaration aver that the orator did then know that Westney did then owe to Abbutt 110li and that he the orator has not paid the said sum of 110li unto him although Abbutt did request it of him whereas in truth the orator did neither did nor knows that Westney did owe unto him the sum of 110li as is pretended or that he intended to sue him upon the obligation or ever had notice of such intention of Abbutt as in his declaration is suggested and he Abbutt does well know that he is satisfied his debt from Westney and does also very well know that the orator did never make any promise to pay the pretended debt mentioned in the recited declaration or any part of it nor had he any reason so to do for that Westney was before and at the time mentioned for such pretended promise indebted to the orator in the sum of 200li which is now due and owing to him and he is likely to be a great loser by Westney and Abbutt does very well know that he did never treat with the orator about the said pretended debt or ever desire him to undertake for the payment thereof or ever give notice to him that Abbutt did intend to sue Westney upon the obligation as in the declaration is supposed and yet notwithstanding he does endeavour by his action to recover the sum of 110li against the orator all which doings of Abbutt are very vexatious and oppressing and tend to the manifest wrong and injury of the orator in consideration whereof and forasmuch as the orator has not any matter in law proper for him to plead in discharge of the action and forasmuch also as the orator has no means to discover payment of the monies upon the obligation by Westney but by the oath of Abbutt nor to discover his promise to deliver up the obligation to Westney to be cancelled or to give him a discharge thereof otherwise than by Abbutt's oath for the witnesses who were present at such payment and promise are either dead gone beyond the seas or removed to some remote parts of the nation unknown to the orator so that he cannot be able to produce them at any trial at law to the end that Robt Abbutt may set forth and discover upon his oath what sums of money he lent to Westney upon the writings obligatory and when he lent such sums of money to Westney and did not before he absented himself as be foresaid pay Abbutt all the monies due upon the obligation and all interest for the same or but part thereof and how much money was paid unto him upon the obligation and how long since at what place and who was present at the payment and whether Abbutt did not promise to deliver up the obligation to Westney to be cancelled or else to give him a release for the monies and to the end that Abbutt may likewise set forth and discover whether the orator did promise or undertake to pay him the pretended debt or part of it or any part or any other monies claimed to be due to him from Westney and what sums of money and when and where and upon what consideration such pretended promise was made and by whom and in what place and who present etc and Abbutt may deliver up the obligation to be cancelled or else give good discharge and release thereof to the use of Westney or show cause to this honourable court why he should not do so and that he may answer the truth etc and asks for a writ of subpoena to be directed to Robt Abbutt