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other side surmise the boundary to be Shadwell
, / part of the ground, that had a large orchard which they would have to be placed a great and garden, and ground. And upon this par way higher, by the place called Cock hill; chase made by Winterburn, who was lessee of bere comes an old man that tells you, he knew the chureh, the plaintiff's counsel do raise a the place sixty years ago and above, and there very considerable argument, that this was the was no other well called Shadwell, but that church's inheritance : For say they, why which was where the church now stands, and should Winterburn, that bad a lease in being that is on the west part of Fox's-lane. Now I wbich would have continued him to be sure in must tell you, upon the evidence it is pretty possession, and that too before all these houses strong, because he gives such an account of were built, (for they talk all the fine bouses it that it was bricked over, and a common well were built since the king came in) give 9,5001. to all people, which must make the thing for the inheritance under the title of the Dean very notorious ; and he never heard of any and Chapter, if he knew (as he must if he had other well called Shadwell. It is true, there the long lease in his possession, and so Knowles might be a spring on the one side of this swears be bad) it was not theirs ; and he himground in question, and the other ; you have self bad a lease for thirty years to come, under heard the evidence on both sides, I must leave a trivial rent of a pepper-corn. Especially it at large to you.
considering that those times sold lumping Then to make the thing more plain, they penny-worths of other people's lands. offer to you that this was a tide-mill, and not But then they come to the last point of evias the defendant pretends, an overshot- dence, and that you must very narrowly obmill; and that is notoriously plain it is serve and weigh. Say they, because you deso, and it is against sense it should be other peod so much upon Carter's lease, which takes wise, Here was one that wrought at the notice of such and such boundaries; and also mill, and his father before him, sixty years ; that of Roper, which you pretend to be made at nay, it appears that to have water to drive an such a time, these, we say, are forged. And overshot-mill in that place must drown the for it they give this evidence. whole level, because it must be raised so much The first part is a natural, legal evidence, and higher than the wheel ; and if so, that stands a proper evidence in things of this nature, to higher than the place, were it raised never so detect a forgery; an evidence that we learn high, of late called Fox's-lane. But there out of our books of law, and it is an argumenwere tides that came within twenty foot of it; tative one. If you produce deeds made in such and you must give me leave to tell you, I un- a time, when, say you, such titles were used, derstand so much of it, that a tide-mill is never and such prefaces made to them in their presuffered to have the water just swim up and ambles, when indeed there were no such titles back again ; but they have cuts to retain the used at that time, that sheweth your deeds are water a while, that it may go the easier off. counterfeit and forged, and not true deeds. And so the great number and length of the And there is Digitus Dei, the finger of God in cuts and ponds, and ditches here, were but only 1 it; that though the design be laid deep, and receptacles and basons to receive the tide, the contrivance sculk, yet truth and justice will which did not rise (as they tell you it should appear one time or another; and though they Dot) above half the wheel. The nature of the may put some gull upon justice for a while, thing itself speaks against what they would yet it will in time be discovered, to the confuhave it to be ; and to strengthen the argu- sion and shame of the undertakers. Say they, ment, they have called five or six, or more you have taken wonderful care to have both witnesses, that have known it all along so to deeds carry the same flourish at the top of
be : avd yet this I apprehend, the other side each of them, you call Philip and Mary king · take to be their most material point to make it and queen of Spain, and both Sicilies; and you marsh-ground.
put Burgundy in the ducal stile, before Millan: But the counsel for the plaintiff say this this is the language of both deeds, but that further to you : They have a survey taken sheweth them not to be true deeds, that carrieth in Oliver's time, which they produced, but forgery in the very face of it; for Philip and were opposed by the counsel of the other side ; Mary never came to write themselves king and and I must confess I did wonder to hear the queen of Spain and Sicily, till Trinity term, in objection, that it was strange this should be the second and third years of their reigns; surveyed as Dean and Chapter's lands, in a whereas your deeds bear date in November betime when there were no Deans and Chapters; fore. Till Trinity term Naples was a kingwhereas it was surveyed as that which was so, dom, and they were but princes of Spain and while there were such things as Deans and Sicily. And besides, they used always before Chapters, and it was in order to be sold as that time, to put Millan among the dukedoms such. And upon my word, if the lands of the first before Burgundy. Dean and Chapter's inheritance were no bigger For instances and proofs of this objection, than the defendant would have them, there was they shew you the titles of the acts of parliaa good round sum paid to the state for the mill ment in that year, in October, November, and only. But alas! you have a witness that tells December ; they shew you the fines levied you (there being in the survey mention of one in Hillary-term, and Easter-term, and TrinityCraven,) that there was a Craven on the east term; till which term the records of the king
dom, of fines and recoveries, bore all the old head Jandlord. What needed that? I suppose stile; and so do the conveyances enrolled and it was recited in my lady Ivy's mortgage benot enrolled of that time. And with great fore: but he must take notes out of it, forsooth, bravery they challenge the defendant's counsel to make over the lease and house as a security to sbew any one conveyance or record (except to sir Charles Cotterel for 80l, and when it is those of your own making) that is otherwise. brought as such, knowing no otherwise, sir And as a further evidence they say, we have Charles Cotterel takes it; and they two, my some leases entered in our books, and so not lady Ivy and Sutton, are witnesses to it. What calculated for this purpose, which have no other it proved afterwards you hear, an absolute deed than the old stile of the king and queen. of sale ; and yet all this while my lady Ivy
And in truth this is a material evidence to (who, as sir Charles Cotterel understood it, was prove these to be forged deeds: and it is made indebted 1001. to sir William Salkhill) has a the more material by this circumstance, which debt of 1500l. owing from sir William, by Mr. Attorney was pleased to mention ; and that mortgage to her on the same house. is, the notice they had from Mr. Neale's brag- Sir C. Cotterel. My lord, I am ready to giug of this very objection to their deeds, and make it all good. yet
they should not come prepared to give it an L. C. J. First of all, I say, it was not well answer. And I must deal plainly with you, done, if there were such a security for 15001. to that very one thing makes it an objection of persnade sir Charles to accept the house as a very great weight and moment.
security for his fourscore pounds, without tellBut still, say they, besides all this evidence ing him of the prior mortgage. Then it is we shall go a step further, and evince the like- strange, she should acknowledge herself inlihood that these deeds should be forged; for debted 1001. apon her taking the four pounds your client, the defendant, is apt to forge deeds. from my lady Salkhill, if she had so great a And to prove that, we produce this evidence. sum owing her. And what a slovenly answer
First of all, sir Charles Cotterel gives you an is that given by the counsel for my lady Ivy, account of a long story which doth not only that she and others were called upon for nine reach the defendant, my lady Ivy, but it looks years diet? whereas sir Charls Cotterel swears, very bad upon my friend Sutton too; who, if she owned herself upon the account indebted sir Charles Cotterel swears true, is a very | 1001. and there was no bartering for diet; but knave. Now sir Charles Cotterel, though he that she had gratis for three quarters of a year does not swear he saw her forge the mortgage after sir William's death, as she had it several she pretended to from sir William Salkhill, yet times before. he gives a shrewd evidence to make it unto- And now, while it is in my memory, I would wardly suspicious. for he tells you, upon sir remind you of one thing more before we come William's death, my lady Ivy was so far from to the other witnesses, there is a thing that to pretending to any debt from sir William, that me cramps this business very home upon my upon accounts stated between my lady and her, lady Ivy: how comes it to pass that my she was indebted to sir William Gl. which lady Iry should be so wonderful kind to my upon her parting from her husband, and being lady Salkhill's daughter, as to part with 15007. under great want, sir William had lent her, be- so secured, to have the house settled upon her, sides his relieving her otherwise : and, says sir without any consideration the world that I Charles Cotterel, I was present when she took can hear of? That is such a melting piece of 41. more of my lady Salkhill's money, and then kindness, that they would do well to find out acknowledged herself 10 owe my lady 100l. some flam to authorize it. It seems upon sir After this, my lady Ivy, without the seeking or Charles Cotterel's desire to see this pretended intreaty of sir Charles Cotterel, comes to him, mortgage, and its being brought him by my and, says she, does not my lady Salkhill owe brother West, who is now dead, she was wonyou money ? yes, said he, 'she does, fourscore derful careful that he should not see the pouvds; but I live in her house, and can soon witnesses to it, it was so precious and tender eat it out in rent. But, says my lady Ivy, she a thing: but alas! it is all melted down and 'bas a' mind you should have the house made gone ot'a sadden, without any consideration at as a security to you. Good now, how comes all whatsoever ; and she can readily join with *my lady Ivy to be so concerned for sir Charles sir Charles Cotterel to settle this upon Mrs. Cotterei's security, when he was not concerned Duftett, the lady Salkhill's daughter, and enter fór himself? Nay, and why should she be so into bond not to disturb the enjoyment. earnest to bave him have a security upon that Then there comes another evidence, and house, which, if it were true, was mortgaged that is the gentlewoman Mrs. Duffett, who it before to herself. If her mortgage were a true seems they would have to be a loose sort of one, this practice carrieth no great face of ho- creature; but methinks she has a good round nesty or virtue in it, I must needs say ; I must oath upon her tongue: for she does directly crave leave to make that observation by the swear that she was present, and saw Mr. way. Ay, but into the bargain, when sir Duffett her husband forge that very mortgage Charles Cotterel yielded to her importunities, sir Charles Cotterel speaks of; that my lady Mr. Sution is the man that must be intrusted Ivy directed it, and gave her order to put saffroa to draw the writing, and to that purpose must in the ink to make it look old; that she saw see ray lord of Salisbury's lease, who is the him writing in a parchment; which he told her VOL. X.
was Glover's lease and other things, and all This is a substance of the evidence that has
her husband, to charge them with any
That supports the credibility of the woman's Now upon the main, after this very long evitestimony : but besides that there is another dence, though the case has been darkened as thing that looks very untoward, because Mrs. much as ever any case could be endeavoured to Duffett doth directly swear, that out of the be; and though the event of it be a matter of 1000l. paid my lady Ivy by sir Charles Coto considerable value, yet the matter of fact is as terel, 2001. was paid and given to her husband, clear as the sun at noon day; and a plain point and Mr. Sutton forsooth had 2001. more: for of fact it is, and must depend upon. If we do what service, I wonder, must my lady Ivy be admit all their deeds to be good deeds, without so liberal tó Mr. Sutton and Mr. Duffett? any consideration of the forgery, pro or con, Mr. Sutton shuffle and rouse bimself as be yei if the mill-ponds, ditches, orchards, garpleaseth, it will stick upon bin; and I must dens, &c. can be iaken to be seven acres; then confess it looks untowardly, his getting my the boundaries upon the mill or hilly-bank, lord of Salisbury's lease to pick notes out of which may well be Fox's-lane, that will anit, and then to have such a mortgage truinped swer both the deeds of the plaintiff and of the up in this manner. It is very rank, I assure defendant, and though never so many houses you.
be built upon it, it will sigpity pothing in the
case. And that it is so, whereas the defendant's Concerning the operation which the fact surveyor swears, that 130 acres will not be that a female witness had passed a life of in- made up without the lands in question; the continency shall have upon her credibiliiy, plaintiff has brought two surveyors, that swear much was said in the House of Commons upon there is full 130 acres, and more, without them. occasion of the Inquiry into the Conduct of the So you have two surveyors on the one side, Duke of York, a. D. 1809. See 12 Cobb, l'arl. and one on the other; and you yourselves bave Debates 179 et seq.
After this long evidence, gentlemen, you materiam sequen' videlicet, This Indenture have had as good an account of the substance of made the 13th day of November, in the 2d it, as I can by ny notes and memory recollect. and 3d year of the reign of our lord and lady, If any of the gentlemen that are of the counsel • Philip and Mary, by the grace of God, king for the plaintiff or for the defendant, do think and queen of England, Spain, France and I have omitted any thing that is material, on | Ireland; defenders of the faith, arch-dukes either side, they have free liberty to remind • of Austria, dukes of Burgundy, Milan, and the court of it. You are the judges of this • Brabant; counts of Hasburg, Flanders and fact, whether this land do of right belong to 'Tyrol: Between Marcellus Hall of Radcliff, the plaintiff or to the defendant: And I leave miller, on the one part, and Richard Roper, it to your consideration.
* citizen and salter of London, of the other part,. After which, the jury withdrew to consider
• witnesseth,' &c. prout per pred falsum et of their verdict, and the court arose. That controfact factum plenius liquet et apparet evening the jury gave in a private verdict be
Quodq; pred' Theodosia Bryan alias dict'
Domina 'T. Ivy postea, scilicet die, anno, &c. fore a judge: and appearing the next morning at the bar, were called over, and demanded if apud, &c. scient subtilit' et falso pred falsum they did abide by the verdict they had given causavit ut verum factum pred Marcelli Hall
ei fabricatum factum publicavit et publicari the night before ; to which they answered, sigillat' et deliberat p. prefat M. H. ubi revera Yes: which being declared by the secondary eadem T. B. alias dict' Domina T. I. adtunc to be " for the plaintiff,” the jury were dis
et ibidem bene scivit et intellexit dictum factum charged.
Then a motion was made by the plaintiff's 'fore falsum controfact et fabricat Anglice counsel
, that several deeds produced by the forged, et non fuisse factum pred M. H. nec defendant, that were detected of forgery,
might p:ipsum sigillat el deliberat' Et ulterius pred' be left in court, in order to have them pursued, Domino Rege dat
Curbic intelligi et infor
Coron’ et Attorn' dicti Dom' Regis pro eodem and convicted of the forgery. The court, upon mari quod eadem T. B. alias, &c. die et avno declaring they would prosecute an information suprad' &c. vi et armis, &c. apud, &c. ex suo of forgery, the deeds of the 13th of November, falso et fraudulent fabricavit et fecit et fieri et
proprio capite et imaginatione scient subtilit' and the 22d of December, 2 and 3 Philip and fabricari causarit quoddam al falsum factum Mary, were ordered to be left with the clerk of continen' materiam sequen' videlicet, . This Inthe crown till further order, and in the mean time the plaintiff to have copies of them from tionat falsum et controfactum factum plenius
• denture, made, &c.' prout per pred' ult' menthe Clerk ; and by a rule of court a trial at bar liquet et apparet et pred T. B. alias, &c. posis ordered in Michaelmas term.
tea scilicet die ando suprad', &c. apud, &c. In Trinity-term there was an information scient subtilit et falso pred falsum et fabriagainst lady Ivy, for forging and publishing catum factum ult' mentionat publicavit et pubthe said two indentures, as follows:
licari causavit ut verum factum pred' M. H. Rex versus Ivy.
sigillat' et deliberat per prefat M. H. ubi re
vera eadem T. B. alias, &c. adtunc et ibid. INFORMATION against the lady Ivy, for forging bene scivit et intellexit dictum ult' mentionať
and publishing two Indentures, Trin. 36 factum fore falsum controfact et fabricat AnCar. Secund. Rot. 48.
glice forged, et non fuisse factum pred M. H. ss. Quod Theodosia Bryan, de, &c. ahas dicť nec per ipsum sigillat aut deliberat? Ad grave Theodosia Ivy, de, &c. vid. die anno, &c. Vi et dampn' ejusdem G. B. in contempt' dicti DoArmis, &c. apud Westm. in Com. Midd' ex mini Regis nunc Legumq; suar' in malum et suo propr. capite et imaginatione subtilit' falso pernitiosum exemplum omn'al' in tali casu deet fraudulent fabricavit et fecit et fieri et fabri- linquen' ac contra pacem dicti Domini Regis cari causavit quoddam falsum factum continen' nuoc Coron' et Dignitat' suas, &c.
314. The Trial of ROBERT BAILLIE,* of Jerviswood, in Scotland,
for High Treason: 56 CHARLES II. A.D. 1684.
Curia JusticiaRLE, S. D. N. Regis tenta in præ- | or of the established government of this king
torio Burgi de Edinburgh vigesimo tertio dom, or the concealing, and not revealing of die mensis Decembris, 1084, per Nobilem any treasonable design, project, or discourse et Potentem Comitem Georgium Comitem tending thereto; or the assisting, aiding, or de Linlithgow, Dominum Livingstown, abetting such as have any such designs, does vc. Justiciarium generalem totius Regni infer the pains and punishment of treason. Scotize, et honorabiles viros Dominos Ja And by the third act of the first parliament of cobum Foulis de Colintoun Justiciarize king James 1. The rebelling openly against Clericum, Joannem Lockhart de Castle. the king's person ; and by the thretty-seventh hill, Davidlem Balfour de Forret, Rogerum act of his second parliament, The resetting, Hoge de Harcarss, Alexandram Seaton de maintaining, or doing favours to open or notour Pirmedden, et Patriciun Lyon de Carss, rebellers against the king's majesty is declared Commissionarios Justiciariæ dicti S. D. N. treason, and punishable by forfaulture. And by Regis. Curia legitime affirmata. the hundred fourty and fourth act of the twelfth
parliament of king James 6. It is declarer Intrat
treason to reset, supply, or intercommune with Mr. Robert Baillie of Jerviswood, Prisoner,
traitors. And by the first act of the first session
of his majesty's first parliament, It is declared, INDITED and accused, That where not- That it shall be high-treason for the subjects of withstanding by the common law of this, and this realm, or any number of them, less or more, all other well-governed nations, the conspiring upon any ground or pretext whatsomever, to to overturn tire governinent of the wonarchy, rise, or continue in arms, to make peace or war,
* “Upon what was thus screwed out of only fine and imprison. It was to no purpose these two persons, the earl of Tarras, who had for him to say, that by no law, unless it was married the duchess of Monmouth's elder in a court of inquisition, a man could be resister, and six or seven gentlemen of quality, quired to swear against himself, the temptawere clapt up. The ministers of state were tion to perjury being so strong when self-prestill most earnestly set on Baillie's destruction ; servation was in the case, that it seemed though he was now in so languishing a state, against all law and religion to lay such a snare occasioned chiefly by the bad usage be met in a man's way. But to answer all this, it with in prison, that if his death would have was pretended lie was not now on his life, and satisfied the malice of the court, that seemed that whatsoever he contessed was not to be to be very near. But they knew how ac- made use of against his life ; as if the ruiu of ceptable a sacrifice his dying in a more violent his family, which consisted of nine children, way would prove. So they continued even in and perpetual imprisonment, were not more that extremity to use him barbarously. They terrible, especially to one so near his end as he were also trying what could be drawn from was, than death itself. But he had to do with those gentlemen against him. Tarras had inexorable men: so he was required to take married his niece, who was his second wife. this oath within two days. And by that time, So they concluded that their confidence was he not being able to appear before the coueil, entire.' Baillie's illness increased daily: and a committee of council was sent to tender bim his wife prayed for leave to attend on himn : the oath, and to take his examination. He and, if they feared an escape, she was willing told them, he was not able to speak by reason to be put in irons: but that was denied. Nor of the low state of his health, which appeared would they suffer bis daughter, a child of twelve very evidently to them: for he had almost years old, to attend him, even when he was so died wbile they were with him. He in general low, that it was not probable he could live protested his innocence, and his abhorrence of iany weeks, his legs being much swelled. all designs against the king, or the duke's life : But upon these examinations a new inethod for the other interrogatories, he desired they in proceeding against him was taken. An ac- might be left with him, and he would consider cusation was sent him, not in the form of an them. They persisted to require him to take indictment, nor grounded on any law, but on a bis oath: but be as firmly refused it. So, letter of the king's, in which be charged him upon their report, the council construed this not only for a conspiracy to raise rebellion, refusal to be a confession : and fined him but for being engaged in the Rye-plot ; of'all 6,0001. and ordered him to lie still in prison which he was now required to purge himself till it was paid. After this it was thouglit that by oath, otherwise the council would hold this matter was at an end, and that this was a him guilty of it, and proceed accordingly. He final sentence : but he was still kept shut up, was not, as they said, now in a criminal court and denied all attendance or assistance. He upon his life, but before the council, who did seemed all the while so composed, and even sq