IT is alledged in the Paper, That Mr. Fitton had been but Four Years in Possession, and that before that time the Earl of Macclesfield was in pos­session by vertue of the Will.

As to the Fitton's Possession, the Case stands thus: Sir Edward Fitton died in 1643. In 1647. William Fitton recovered the Possession of the Mannor of Alford and Gawsworth-Park, which was all the Estate that was not in Mort­gage or Jointure. In 1652. the Mortgage was redeemed by Mr. Fitton, and about 1655. the Jointress died, and from that time he had possession of that part of the Estate also.

As to the Earl's prior Possession, the Fact is thus: He, together with the other Co-heirs, upon the death of Sir Edward Fitton's Mother, did enter upon Alford, and receiv'd his seventh part of the Profits, as one of the Co-heirs, till the Fittons recovered the Estate from them; which is so far from being a Possession under the Will, that it is a demonstration he did not then believe there was any such. And for many years in many Suits between the Co-heirs and the Fittons, as well when they were Plaintiffs as Defendants, the Earl was joined with them.

The 2d Matter alledged is, That the Chancery did no wrong to Fitton, by not suffering him to try the Title to the Will, because upon his Answer he never contested it.

The falsity of this Allegation appears by the Words of the Answer; And these Defendant say, That they nor either of them Know or Believe, that Sir Edw. Fitton did make his Will in Writing, in the Bill mentioned, pretended to bear date, &c. Which is a plain denial of it, and that the Earl took it to be so, is as plain by his endeavouring to prove the Will in the Cause.

The 3d Allegation in the Paper is, A pretended Answer to that which ever was and ever will be required in all Courts of Law and Equity, That the Plain­tiff must make out his own Title, before he be admitted to controvert the Title of the Defendant, who is in possession. And therefore the Earl's Title being a Title at Law under the Will, which was devised, he ought to have made out that Title at Law, before he should have been admitted to controvert the Deed-Poll, which was part of the Defendant's Title.

The next thing is, A cunning Insinuation, as if to assert the Deed-Poll were a Reflection on the Judgments of the House of Lords, given upon the Earl's complaint against Fitton and Granger about the Libel; which is a meer Fallacy, for that Paper might be justly censur'd as a Libel, and the publishing of it as a Crime, tho' every word of it was true, because it was not asserted in a legal Course. And it is most true, that the Verdict was given upon Granger's Evi­dence, and upon that of his Servants or Companions, who swore what Gran­ger told them.

• 1. There was no occasion to produce the Deed-Poll at any of the Tryals, with the Co-heirs, because Fitton's Title was under the Settlement, which they never pretended to be revoked.
• 2. There was no cause to produce it upon the Marriage-Treaty, for Mr. Fit­ton's Wife's Relations looked on his Title as undoubted, he being in possession upon three Judgments at Law, so that no Deeds at all were produced, but the Marriage took effect upon Articles.
• 3. William Jolliffe, Esq a Gentleman of Quality and undoubted Reputation, and divers others, proved, That they saw the Deed-Poll some years before the time that Granger swore he forged it.
• 4. As to the pretence, That Fitton's Father knew nothing of the time, 'tis false, and affirm'd without proof.
• 5. The Witnesses to the Deed-Poll, Rich. Davenport, Esq Tho. Smalwood, and Edw. Barwick, Gent. were persons of such Credit, that the Earl never went about to impeach it. They, upon their Examination in the Cause in Chancery, swore, That they were present, and saw Sir Edw. Fitton Seal and Deliver, as his Act and Deed, the said Deed then shewn to them, and that their Names endorsed on the Deed was their proper Hand-writing. Now 'tis not probable, that Witnesses Names, who were all living, and strangers to Fitton, should be put to a Deed, supposed to be forged twenty years after the pretended Date.
• 6. 'Tis not at all strange, that they should not on the sudden recollect the time and place of executing the Deed, it being after 20 Years, and they having been Witnesses to divers Deeds seal'd by Sir Edw. Fitton.
• 8. All the three Witnesses did afterwards recollect themselves, and fre­quently in their Life-time, and severally on their Death-beds, declared, they perfectly remembred the Time and the precise Place where the Deed was seal'd, viz. In the Compass-Window in the Hall in Gawsworth-house. Therefore let any Man that can believe that Mr. Davenport asked Pardon for swearing that he was a Witness to the Executing the Deed, when he died affirming it.
• 9. As to the nature of Granger's Evidence, If it were true, he must be a great Villain, and guilty of Forgery, and 'tis considerable what Credit he ought to have who swears himself at that instant to deserve none. And Granger himself, from the time of that Tryal till his Death, which was very lately, own'd, That he never saw Fitton till the Morning when the Tryal was had, and that one was then employ'd to shew him Fitton, as he came into Westminster-hall. And at his Death confess'd, That of all the Villanies of his Life, that which troubled him most was the wrong he had done Fitton, in swearing he forged the Deed-Poll, of which there are many Witnesses beyond all exception. And if Granger could deserve Credit, in behalf of the Earl, after he had own'd himself guilty of Forgery, he may be allow'd to Deserve as much Credit, in behalf of Fitton, after he had been guilty of Perjury; Especially when the very persons con­cerned in suborning Granger, and who paid him for it, confess their knowledge of the Fact.
• [Page 3]10. As to what the Answer call an Evidence from the nature of the thing that it was improbable Sir Edw. Fitton, who was married, and in a possibility of having Children, should release his Power of Revocation. It is to be observed, That Sir Edward continued Tenant in Tail after the Release, and so might cut off the Remainders by a Recovery, if he had Issue; but 'tis probable, it was done to prevent any sudden act he might be prevail'd upon to do, to the pre­judice of his Heir-Male, by the Importunity of his Sisters, who were his Heirs; and also to establish and strengthen his Settlement, (the Times grow­ing ill, and he being about to enter into the War) which would have signified nothing, as to the saving his Estate in his Family, if he had had a power to revoke it.

In Answer to the fifth Objection, 'tis plain, the Possession, and Deeds and Account of the Profits, were Decreed before any Tryal was had upon the Will, and before the Tryal which the Chancery it self thought fit to allow, which was plainly before the Cause was Determined. 'Tis also evident, that the Deed was at first sent with prejudice to be Tryed, for it was called a pretended Deed.

Nothing can be more frivolous than the sixth Allegation, that the Right of Inheritance was not touch'd, but only the Person bound by the Decree. For all Deeds were taken from Mr. Fitton, together with the Possession, and the Deed-Poll Cancelled, and he Decreed to have no farther Tryal, and he that has no Remedy, has no Right, or at least his Right can do him no good.

Whether the Court of Chancery has exceeded their Power, is now the Que­stion before the Lords; and therefore to draw Arguments from the Judgment of the Lord Chancellor or Lord Keeper, is begging the Question, and is indeed to make an Argument: Which if it have any force at all, will indifferently serve against all Appeals to the Lords, the Jurisdiction of this Great Court being founded upon a supposition that Chancellors and Keepers may mistake. Besides, the now Lord Keeper, being prevented by a Plea and Demurrer, could never look into the Proofs in the Cause.

That the Decree is larger than the Plaintiffs Petition will be obvious to any Person who looks on both, nothing is pray'd, but to set aside the Lease, and to be at Liberty to examine Witnesses to the Will. But the Decree is for the Possession, for an Account of Profits, for Delivering up and Vacating Deeds, and does exclude the Defendant from Trying his Right at Law for the future.

The pretended Answer divides the Proofs of the Will into three Heads.

As to the first, which mentions Sir Edward's Intention, to settle his Estate on the Earl of Macclesfield, Mr. Manwairing, the first Person named, had for many Years together been in Suit; which Mr. Fitton, as one of the Co-heirs of Sir Edward, and therefore could not believe there was a Will. And Sir John Trevor, Mr. Davenport, and other Persons of undoubted Credit, did fully prove in the Cause, that Sir Edward did ever intend to keep the Estate in the Name, and to settle it on William Fitton, and sent for him out of Ireland for that pur­pose, and declared, that rather than a Fitton should not have it, he would leave it to Ned Fitton the Bang-beggar. Nor could Sir Edward Fitton conceive any prejudice against William Fitton, because he was engaged in the Irish or English Rebellion, since'tis utterly false, that he was engaged in either, being well known to be a Gentleman of very Loyal Principles. And Philip Pritchard, Esq Ralph Jamon and Thomas Cowley, William Sweetenham, Edmund Barwick, Ed­ward Gardiner and John Snelson prove, that when Sir Edward Fitton, upon his Death-bed, was sollicited by Earl Rivers and Mr. Davenport, to settle his Estate upon the Lord Gerrard, he absolutely refused it. And John Cowley and ano­ther, proves, that when the Earl of Dorset, and Earl Rivers at Oxford, at se­veral times, about three Months before his Death, importun'd Sir Edward Fit­ton, to settle his Estate on the Lord Gerrard; he made answer, he could not do it, having settled it before on the Fittons: Which is, in effect, a proof that Sir Edward Fitton own'd he had Releas'd his Power of Revocation.

As to the second Head, the Witnesses, who spoke positively to the Will, were two, Dr. Smallwood and Hollingshead.

Smallwood being Examined as a Witness, in a Cause in Chancery, between the Co-heirs and Mr. Fitton, did Depose, that he knew not of any Settlement made by Sir Edward Fitton, by Deed, Will, or otherwise; which Oath of his must be false, if he had at that time the Will in his Doublet, where he preten­ded to have carried it seventeen Years.

2. Whereas (according to the Settlement) Edward, the Eldest Son of William Fitton, at his Age of fourteen Years, tendred himself to marry the Lord Brereton's Daughter; Smallwood being then his Domestick Chaplain, per­suaded the Lord Brereton to marry his Daughter to him, which he could not do, without the basest Infidelity, if he knew the Estate was given away from the Fittons.

As to Hollingshead, he was the Person who treated a Marriage between Ed­ward, the Eldest Son of William Fitton, and the Daughter of William Jolliff, Esq (which was prevented by Edwards Death) and who after treated a Marriage between the Petitioner and the Daughter of Thomas Jolliff, Esq and upon both those Treaties, he constantly affirmed the Title of the Fittons under the Settle­ment.

2. After the Marritge had taken effect, he pressed the Petitioner for a Lease of a Farm, part of the Lands in question, and offered a considerable Fine for such Lease, which he would not have done, if he knew the Petitioner had no Title, and he often affirmed that he was present when Earl Rivers press'd Sir Ed­ward Fitton, to settle his Estate on the Plaintiff; which he refused.

He also advised others to renew their Leases from Mr. Fitton, which they did thereupon.

And notwithstanding, it is alledged with so much assurance, that the Will was clearly Proved at the Tryal at Chester, Sir Job Charlton (before whom the Cause was Tryed) directed the Jury that they ought to have no regard to Hol­linshead's Testimony, as a Person not credible, and that the only Evidence for the Will was Dr. Smallwood, if they did believe him.

As to the rest of the Witnesses, who speak to Hollingshead's Report, their Te­stimony falls together with Hollingsheads.

'Tis true, there was an Information of Perjury Exhibited against Smallwood and Hollingshead, but Mr. Fittons most material Witnesses, being then beyond Sea, when the Cause was to be Tryed, and the Court refusing to put off the Tryal, no Evidence at all was given, and the Defendants acquitted of course.

As to that Objection, which may at first seem plausible, that it will be a hard­ship upon the Earl, to come to a Tryal after so long a time, if it be examined, it will appear to have to weight in it. For the Question being upon the reality of the Will, and the Earl's Witnesses, having been all Examined, their Deposi­tions remain for his advantage, and they cannot be cross-examined by the Court, which they might have been, if they were yet alive, and that is only to the disadvantage of Mr. Fitton.

There is no time of limitation fixed in case of an Appeal from an Erroneous Decree. In this Case the Plaintiff and Defendant are still living: Mr. Fitton has been Prisoner, almost ever since the Decree, but has made Entries and Claims on Record from time to time, though under a disability, not only to Prosecute this Suit, but another Suit upon a Mortgage of part of the Lands in question, which he might have done, (if able) at a much less charge than bring on this Cause.

The Tryal had at Chester is much insisted on, but if the Fact were stated, would have little weight with it.

Mr. Fitton was then a Prisoner, the Sessions appointed in Term-time, all the Principal Council below retain'd by the Earl, and Mr. Fitton could get no Council in London, to leave the Term to go to that Tryal; nor could he pre­vail with divers of his material Witnesses to go down. All which appears, by several Affidavits made in Chancery, before the Tryal, and in order to put if off. And at the Tryal, he lost the use of several Witnesses who were dead, being not suffered to read their Depositions, because the Bill and Answer in the Cause were forgotten to be brought down, as appears by another Affidavit made in the same Court for a new Tryal.