Court of Requests (PRO REQ2/105/12 Edw Sibthorpe of Braintree v: Xoph Sibthorpe Math Everard and wife Roger Harlakenden etc 1591-2)

27.7.1592 (Thursday 27 July 1592)

document 19601578

according by her majesty's commandment by commission from the court of requests I have called before me as well Edw Sibthorpe the plaintiff and Math Everard and Xoph Sibthorpe two of the defendants whom the cause chiefly concerns and by conference had with them and by perusal of the pleadings of both parties I find the case to be such Edw Sibthorpe the complainant being possessed of a lease for certain years of the hop grounds in question by demise of Roger Harlakenden esq one of the defendants about 7years before this suit commences borrowed of his brother Xoph Sibthorpe 40li for the security whereof the complainant by writing assigned his term absolutely to Xoph his brother upon trust nevertheless and especial confidence that Xoph after the 40li levied of the issues and revenues of the hop ground should suffer the complainant to take the profits of it to his own use Xoph being possessed of this lease the plaintiff his brother being departed beyond the seas put one Wm Stammer who had married his sister in trust as a bailiff and factor to see and manure his hop ground to disburse all such sums of money as should be expended about the same to pay the yearly rent returned upon the lease and to receive the profits of the grounds and thereof to render a true account this done Wm Stammer as appears by deposition took upon him the charge disbursed money about the dressing of the ground for one year or thereabouts paid the rent reserved and received the profits making nevertheless his account for that year in such deceitful manner as that the charges seemed more than the profits and coveting afterwards to gain the hop ground to himself he abused the simplicity of Xoph suffered the rent to be unpaid whereby the lease was forfeited and took a new lease in his own name after which Xoph Sibthorpe in consideration of one annuity of 10li for the term of 4years to be paid released all his estate and title and interest and promised to procure a release also from the plaintiff his brother unto Stammer writing to him as his letters appear that he had obtained the said release and had it in his custody nevertheless Xoph now denies that the plaintiff ever made any such release and offers to depose as much so by this it appears that Xoph the assignee of the lease consented to Wm Stammer doing after they were done but it does not appear by any proof I see that Xoph was beforehand a practiser or privy to the fraudulent forfeiting of the lease this new term and estate for years being obtained by Stammer he makes his last will and testament and ordains his then wife Mary one of the defendants his executrix and dies she possessed of the term is married to Everard against whom and others the plaintiff has brought his bill by all which course it is evident enough that the plaintiff is abused and defrauded if he has not released his right he ought as I think in equity be relieved but in the manner how to be relieved is the doubt for restored to the old lease he cannot be for it is made void the immediate wrong done to the complainant was his brother Xoph indiscretion who appointed such a bad bailiff and was so careless to look to the payment of the rent Stammer the deceiver being dead the new lease has come to the possession of an executrix who by law is to answer the value thereof to creditors and legators if otherwise there be not sufficient and an arbitrament or decree in court of equity in this case I take to be no plea in discharge of the executrix at common law nevertheless in this rare case this course I thought most indifferent viz that all the profits of the hop ground already received and to be received till michaelmas next coming being all or to the most part liable to the performance of the last will be and remain to the defendant Everard and his wife and at michaelmas next the defendants should assign over their term and interest in the grounds that are to come unto the plaintiff to his own use and commodity leaving the same planted and poled in such sort as they now are being rather inclined to move this end for that I find by some depositions how Stammer the testator had an intention and purpose to have assigned this new term to the plaintiff as recompense of the former so by his means forfeited and made void and to which my intended order the defendant Math Everard seemed so much to disassent having only for that he pretended that he had divers legacies to pay and might be charged with debts over and above the value of the other goods to Stammer and therefore required bond of the plaintiff with surety to save him harmless if by law he should be hereafter charged to the value of the lease which assurance the complainant thought no mete to grant neither do I think it convenient as yet partly for that the defendant Everard made it not appear unto me that besides the lease there is not sufficient to pay and satisfy all the creditors and legatories of Stammer according to his will partly for that it seemed to me by some speech uttered by Edw that if such bonds of assurance were entered into he himself at his pleasure might cause the assignment of the term unto the parties to be of little or no value and so the cause rests without any end made by me all which matters and proceedings etc I do signify under my hand and seal to the counsel of the court of requests 18.7.34Eliz1 Jas Morris and seal