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Chancery Depositions (PRO C9/32/1 Robt Aylett v Mary Brand)

1664 (1664)

document 16700711

(date uncertain) complaint of Robt Aylett of Stisted (first part just a summary) Wm Brand husband of Mary Brand loaned money to Wesney Westney did by his writing obligatory bearing date as is mentioned the 22.4.14Chas2 become bound to Mary Brand in the penal sum of 40li with condition for the payment of 20li12s upon the 22.10.14Chas2 then next ensuing but whether the said writing obligatory bears the date as abovesaid or what was the sum of monies lent if any to the said Edw Wesney by Mary Brand he the orator does not know he being no was privy or acquainted with the lending of the same and he further shows that Edw Wesney before and at the time mentioned for borrowing the money is reputed of good estate and ability and did afterwards as he has been informed well and truly pay and satisfy to Mary Brand the sum of 20li12s either on the day appointed for the payment according to the condition on the writing obligatory or at a day shortly after and she Mary Brand did then accept the monies in full discharge of the obligation and thereupon he Edw Wesney did desire Mary Brand to deliver up unto him the writing to be cancelled which she then pretended was mislaid and not to be found at that time but did faithfully promise to him Edw Wesney as the orator has been informed that she would presently after make search for the writing obligatory and upon finding thereof either cancel it or else send or deliver the same unto him and in case it should not be found she would then give to him Edw Wesney a sufficient re lease and discharge from the writing obligatory and from the monies by her Mary Brand received but she did not perform any of these particulars to him as in justice and conscience she ought to have done the orator further shows that Edw Wesney after his time of borrowing monies of Mary Brand had many great losses and hindrances in his dealings and being indebted to divers persons in sums of money and amongst others to the orator in the sum of 200li did about the month of .9.1663 absent himself from his place of abode which she Mary taking notice of and having in her custody the writing obligatory uncancelled and minding if she can to be doubly paid for her 20li12s did about the month of .11.1663 and not before being after the time of Edw Wesney's absenting himself pretend and give out that your orator had undertaken and made promise to pay her the debt which she claimed by the obligation and upon pretence of such promise albeit she does very well know that all money due by the writing were fully satisfied and paid to her by the said Edw Wesney yet she Mary Brand has lately commenced an action of the case upon a supposed promise at his majesty's court of king's bench against the orator and in hilary term in 15Chas2 and 16Chas2 did cause a declaration to be issued forth and delivered against him in the said court pretending therein amongst other things that for the obtaining of the 40li being the penalty of the writing obligatory she Mary Brand did 30.5.15Chas2 intend to sue Edw Wesney upon the obligation and that the complainant as is pretended did take notice of such her intention and then in consideration of Mary at the request of the orator as is pretended would forbear to sue Edw upon the writing obligatory your orator did then promise as in the declaration is supposed that he would pay to Mary so much money as Edw to Mary did owe before the feast of michael the archangel next after the pretended promise in her declaration she does aver that the orator did then know that Edw Wesney did owe Mary 40li and she does likewise in her declaration allege that she Mary from the time of the pretended promise until the term of hilary did forbear to sue Edw Wesney upon the writing obligatory according to the request of the orator as is pretended and that the orator has not paid her the 40li although she did request it of him whereas in truth she did never request or demand the same of him neither did nor does he know that Edw Wesney did owe unto her the sum of 40li as is pretended or any other monies or that she intended for the obtaining thereof to sue him Edw Wesney upon the writing obligatory if any such sum were owing by him to her nor had the orator notice of any such intention of Mary as in her declaration is surmised and although she Mary does very well know that she is satisfied her debt from Edw Wesney and does also very well know that the orator did never make any promise to pay her the pretended debt mentioned in the declaration or any part of it nor had he nay reason for to do for that Edw Wesney before and at the time mentioned the such pretended promise was indebted to the orator to sum of 200li which is yet due and owing to him and he is likely to be a great loser and although she Mary Brand does very well know she nor any other person from her did entreat with the orator about the pretended debt or ever did desire him to undertake the payment thereof or the orator did ever promise to her or to any other person to pay the pretended debt or any part thereof upon forbearance of suit by her against the said Edw Wesney and does likewise well know that she never did forbear to sue Edw Wesney on any request of the orator yet notwithstanding she has endeavoured by her action to recover the sum of 40li against the orator and does threaten further to pretend the same action or to commence another action against him in the same term or in some other term for the recovery of the 40li from the orator upon the pretended promise in her declaration mentioned which doing and persecutions of Mary Brand are very vexatious and oppressive and tend to the manifest wrong and injury of the orator in tender consideration whereof and for that the orator has not any matter in law proper for him to plead in bar or discharge of the action or in any other action that shall or may be commenced and presented on the pretended promise against him and forasmuch also that the orator has no means to discover the payment of the money upon the writing obligatory by Edw Wesney nor to discover her promise to deliver up the writing obligatory to Edw Wesney to be cancelled or to give discharge and release thereof to him otherwise than by the oath of Mary Brand for that witnesses who were present at such payment and promise are either dead gone beyond the seas or removed into some remote places of this nation unknown to this orator for that he cannot be able to produce them at any trial at law to the end therefore that Mary Brand may set forth and discover upon her oath what sum of money she lent to Edw Wesney upon security of the writing obligatory and when she lent such sum and whether Edw Wesney before he absented himself pay to Mary Brand all the monies due upon the obligation and all interest for the same or if but part thereof how much money the said Edw did pay upon the obligation either principle money or interest and how long since and at what place and who were present at such payment and whether she Mary Brand did not promise to deliver up the said writing obligatory to Edw Wesney to be cancelled to give him sufficient release thereof and the moneys secured thereby and to the end Mary Brand may say whether she at any time entreat the orator about the pretended debt or ever move him to undertake the payment thereof unto her for Edw Wesney and whether the orator did promise or undertake to pay her the pretended or any part of it and how much if any and whether she or any other person and who did at any time and when acquaint the orator at any time of any intention of Mary to sue Edw Wesney upon the obligation and what was the consideration inducing the orator to make such promise as is pretended when where and to whom and in whose presence was such promise made and at what time and from whom did she first know and hear of such promise as is pretended and mentioned in her declaration and whether she did forbear to sue Edw Wesney at the request of the orator or his promise of payment upon such forbearance as is pretended at any time between 30.5.1663 and michaelmas day next following or at any other time at what other time or what other cause did or does she forbear to sue Edw Wesney upon the obligation and to the end Mary may deliver up the writing to be cancelled or else give good discharge and release thereof to the use of Edw Wesney or show good cause to this court why she should not so do and why she should not cease her further persecution of the orator on pretended promise and that she may answer and set forth the truth of all and every the premises upon her oath to the end the orator may be released therein according to equity and justice may it please the good lord to grant writ of subpoena to be directed to Mary Brand commanding her to appear at a certain day under certain pains etc