Chancery Suit Herdson v Herdson
Bill of Complaint
Cordell ii Junii 1578
To the right honorable Sr Nicholas Bacon Knight Lord Keper of the greate Seale of England
Humblie complayninge sheweth unto your good Lordshippe your daylie Orators Thomas Herdson and Jhon Herdson two of the sonnes of Henry Herdson late one of the Aldermen of the Citty of London deceased.
That whereas the saied Henry Herdson was in his lyftyme Lawfullie seised in his demeasne as of Fee of and in the Mannours of Folkestone Newton ales Newington Fee Newington Bellowes Walton Sweton and Terlingham with thappertenances in the County of Kent with divers Landes tenementes and hereditamentes to the saied Mannours belonginge and appteyninge in the saied County and so beinge therof seised did make and ordeyne his last will and Testament in writinge and by the same did appoint and sett forth the thirde parte of the saied Mannours Landes and Tenementes to descende and comto Thomas Herdson his eldest sonne for his full thirde parte and porcion and the rest of the saied Mannours Landes and Tenementes so devised by the saied last will unto Jhon and Edwarde Herdson and to three other of his sonnes to them and the heires of their bodies begotten
And died of the saied Mannours and other the premisses seised, And after the saied three sonnes died without issue of their bodies begotten by reason wherof the freeholde of two partes of the saied Mannours Landes and Tenementes did wholly com unto the saied Jhon and Edwarde by waye of survivour for the Tearme of their lyves and the longest lyver of them, and the inheritance of the fee simple of the saied premisses was wholly invested in the person of the saied Thomas Herdson his eldest sonne and next heire.
And afterwardes it was agreed betwene them by all their consentes that certen Arbitratours by them elected should make an equall and indifferent particion of the saied premisses betwene the saied three bro[t]h[er]s which survived wherupon the saied Thomas and Jhon Herdson becam bounde by severall obligacions in the sommes of one thousande poundes unto the saied Edwarde Herdson for to abyde fullfill and performe the order of the saied
particion Arbitartours forthe saied particion
(And for asmuch as the saied Edwarde was absent by reason wherof he could not enter into the like bonde for the performance of the saied order) he made a letter of Atturney unto Dame Barbara Champion his mother to do any Acte in his behalf for the ratefyinge and confirminge of the saied particion who did becom bounde in the behalf of the saied Edward by severall obligacions in the sommes of one thousande poundes unto your saied Oratours to abyde the saied order that the saied Arbitratours should sett downe for the saied particion which saied particion was by the saied Arbitrators made accordinglie and every of the saied three brothers condiscended therunto and severally occupyed the saied parte to every of them allotted accordinge to the teno purporte and intente of the saied order of particion made as is aforesaied by the space of seaven or eight yeres untill that the saied Lady Champion died and made both your saied orators and the saied Edwarde hir sonnes hir executors who proved the saied will and toke upon them the Administracion of the saied last will and whereby hir saied severall bondes of one thousande poundes a pece made to your saied Oratours for and in the behalf of the saied Edwarde for the performance of the saied particion were becom utterlie voyde and of none effect in the lawe and then also the saied Edwarde gat into his handes and possession as well the saied letter of Atturney as also divers other bondes and writinges of the saied Lady Champion So that the saied Thomas and Jhon your saied Oratours remayned still bound to the saied Edward in the saied severall sommes of one thousande poundes for the performance of the saied particion and the saied Edwarde is at liberte to stand to the saied Arbitrement and particion or no by reason that the saied bondes made in this behalf by the saied Lady Champyon are becom voyde which great advantage he perceyvinge and havinge take out of the parte of the saied Mannours Landes and Tenementes so to him allotted divers great profitte and comoditees and havinge raysed out of the same by certan wood sales by him there made dyvers and sundry great sommes of money and havinge wasted and spoyled many comoditees risinge on his saied parte of the saied Landes doth now refuse to stand to that particion by him so accepted by the space of seaven or eight yeres and for the further disinheritinge of his saied brothers hath of late made a Feoffment of the thirde parte of all the saied premisses unto one Richarde Wisedome and William Riche agenst whom as Tenantes of the saied thirde parte of the saied Mannours Landes Tenementes he the saied Edwarde hath caused one Richarde Ravenscrofte to bringe and pursue a writt of Entry ser disseisen in le post and therupon meaneth to prosecute Recovery in due order and forme of the comon Lawes of this Realme and hath caused the possession therof to be kept to the use of the saied Tenamentes for divers dayes since the Teste of the saied writt of Entry and before the returne of the same by the power & force of thirty or Forty personnes whereby he meaneth and intendeth to disinheritt and to take from yoursaied Orators their interest to them growen by the saied particion contrary to the saied Arbitrament and particion aforesaid and contrary to all equite and good conscience and your saied Orators dare not interrupt any manner of wayes the saied possession so taken of the saied thirde parte nowithstandinge that the saied Edwarde hath eyther no interest at all or elles but for Tearme of lyve in most parte of the saied Landes the Revercion therof to the saied Thomas Herdson one of your saied Orators for feare of forfeture of their saied bondes of one thousand poundes a pece wherin they stand bound to abyde the saied particion
And moreover your saied Oratours by defeatinge of their interest in the porcion to them allotted are to forfeit great bondes for performance of their [.. ...] and of Leases by them made of divers partes of the saied premisses since the saied particion
by made and yet shalbe enforced to suffer the saied Edwarde to kepe the possession of the parte to him allotted by the saied particion bicause that he standeth not bounde to abyde the particion and your saied Orators remayne bounde to the saied Edwarde in two thousande poundes which [con]venience and dannger of disinherison in parte of the saied Landes and losse of great bondes made for performance of Jointures and Leases unto others do urge your saied Orators to crave instantlie at your Lordshippes handes that the saied Recovery maye be staied by the order of this honorable Courte from preceadinge any further to the great impoverishment of and [...]ge of your saied Orators.
And also that the saied Edwarde may be enforced to enter into like bondes of one thousand poundes a pece unto your saied Oratours to abyde and stand to the saide [...] or elles that your saide Orators maye be discharged of their saied bondes of two thousande poundes made to the saied Edwarde.
In tender consideracion wherof maye it please your good [Lordshi]ppe to grannte unto your saied Oratours the Quenes Mates most gracious writt of subpoena to be directed out of hir Mates highe Courte of Channcery unto the saied Edwarde commandinge him [...] a certan daye and under a certan payne therin to be limited personallie to appere in the saide Courte then and there to answere unto the premisses and further to stand and abyde such further direction therin as by your Lordshippe shalbe thought good and your saied Oratours shall praye unto god for the longe preservacion of your honour
The answer of Edward Herdson defendant to the bill of Complaint of Thomas & John Herdson his bretherne
The seid defendant seyeth that the seid bill of Complaint exhibited againste hym in this honorable Corte ys alltogether untrewe & insufficient in the Lawe for divurs apparant caus[es] to be answered unto, & the matters therein conteyned practised & devised by the seid Thomas Herdson one of the seid Complainants withowte the consent of the seid John (as this defen[dant] supposeth) onlye to oppresse the seid defendant with thes dayelye trobles, vexacions & charges thereby thinkinge to staye or deteyne the seid defendant from the lawfull demannde of the assurance of that porcion of land which as well by the laste will & testament of the seid Henrye Herdson his father, as also by the particion and awarde mencioned in the seid bill, ys to hym dewe to demannde.
Nevertheless yf the seid defendant shalbe compelled by order of this Corte to make anye further answer to the seid bill, the advantage of the insufficiencye thereof to the seid defendant allwayes saved, the seid defendant saythe.
That true yt ys that Henrye Herdson theire father was seised [in]? his Demesne as Fee of & in all & singular the seid mannors landes tenementes & hereditaments mencioned in the seid bill & of & in divers other parcelles of land in the Countie of Kent & so beinge seised dyd make his laste will & testament in writinge, & by the same did devise a full third parte of all his londes to the seid Thomas
& his heires one of the seid Complainants & his heires & the residewe of all his londes to this defendant & the seid John one of the other of the seid Complainants & to three others theire brethren which are now decessed & the heires of theire bodyes begotten, & so dyed therof of suche estates seised by vertew of which devise the seid Thomas John & Edward were & are tenantes in comon that ys of a third parte to Thomas & his heires & the other two partes to the seid John & Edward & theire heires of theire bodyes begotten, which this defendant supposeth to be an estate of Inheritance invested in them by lawe, to give grannte or alter at theire or ether of theire will & plesure.
And this defendant further sayeth, that he havinge occasion to goe beyonde the Seas did give authoritie by his writinge unto dame barbara Champion his mother to alowe anye acte that she should doe in his absence towchinge the particion of the seid londes, but not as this defendant supposeth by anye expresse woordes conteyned in the same writinge ether to enter into bond for the abydinge of the awarde of anye person, nor yett to chose anye arbitrators towchinge the same, & yett since that contented to performe his mothers acte done in his behalffe so as agrementes had byn performed accordingelye by them, for this defendant saythe that in truthe a particion was agreed uppon by the consent of the seid Complainants, & the seid dame barbara, for the seid defendant, & the same sett downe in writinge under theire handes by the vertew of the seid awarde or arbitrament mencioned in the seid bill, (as this defendant supposeth) & the seid Complainants bounde themselves to this defendant eyche of them in one thowsand poundes to abyde the same awarde [&] particion, & the seid barbara bounde hir selfe to the seid Complainants (althoughe withowte anye direct authoritye from this defendant).
And this defendant further saythe that by the seid awarde yt was ordered that the seid Complainants & eyche of them should make suche assurance to this defendant & the heires of his bodye of that his parte of lond set forthe by theire seid agrement in paper as should be devised by this defendant or his lerned counsell before a certayne daye lymited in the seid awarde, before which daye the seid defendant demannded an assurance of his parte & porcion of the seid Thomas one of the seid Complainants which was tendered hym in the presence of one of his lerned Counsell, whoe refused to acknowledge & passe the same so tendred, whereuppon (as this defendant thinketh) the obligacion of the seid Thomas was forfett, notwithstandinge which forfeture the seid defendant never disturbed his possession in his third parte sett owte, nor yett ever soughte thadvantage thereof, but only kepeth the same his bonde & the bonde of the seid John, the other Complainant, as lawfullye & rightfullye he maye doe, untill he maye have from them & theire heires suche assurance of his seid parte as shalbe devised by his lerned Counsell.
And yett accordinge to the same awarde & agrement of particion the seid defendant did holde hymselfe contented with that his parte so setforthe, for this fyve or sixe yeres or better, and hath taken the profittes thereof by wood sales and otherwise (as he thinketh) he mighte lawfullye doe.
And likewise the seid Complainants have enjoyed & taken the profittes of theire partes so to them allotted and the seid Thomas of his parte (as this defendant hathe hard crediblye reported) hathe made verye nere
eighte five hundred poundes, whereat this defendant nothinge repyneth nor yett ever did intend nor now intendeth to disturbe the possession of the seid Complainants or theire farmers tenantes or assignes in anye theire partes to them by theire seid agrement setforthe, so that he maye forthewith have suche assurance of his parte & porcion from them & other of them as by his lerned Counsell shalbe devised.
And in truthe this defendant saythe that for asmuche as he was informed by his lerned Counsell the same agrement of particion as ys aforeseid, sett downe in paper under theire handes & the hand of the seid barbara, & not theire Seales, to be therefore voyde in Lawe, he was advised this Ester terme laste to suffer a Recoverye of that his parte & to appoynte [...] to be uppon the groundes for the better protectinge of the same Recoverye, at the tyme of the writt broughte, which he did accordinglye, & passed the same to Ryche & wisedome as he might lawfullye doe & after they by the advise of his Counsell suffred a Recoverye thereof by the name of all that his thirde parte onlye unto one Ravenscrofte ret before the Quenes maiesties Justices of hir highnes corte of Common ples at westminster in the firste retorne of this present Trinitye terme, where the seid Complainants by their lerned Counsell moved the same Justices for the stayeinge of the same Recovurye, & did sett downe articles in paper (as was then there ordered by the seid Justices) conteyninge the verye substance of the seid bill, thereby shewinge theire causes whie the same should be stayed, to the answer of which articles the seid defendant by his lerned Counsell did likewise the same terme deliver into the same Corte certaine Articles in paper conteyninge in maner (as this defendant supposeth) the verye substance of this his answer, & the seid Justices for the better understandinge of the seid cause had Copyes shewed them & delivered them of bothe the seid articles, whoe havinge considered the same & the resonable answer of this dedendant, which was that uppon the assurance from them of his seid parte setforthe in theire seid agrement he would deliver them theire seid obligacions, & in the meane tyme untill that were performed, to leave the same in the seid Corte [word scrubbed out] did order that the seid Recovurye should passe  same Terme, was entred & exemplified & delivered to this defendant accordingelye fully executed, and the seid defendant in the seid terme [acc]ordinge to the order of the seid Corte did deliver into the handes of master Forde one of the Preguntories[?] of the same Corte theire seid [oblig]acions saffelye to be kept, until the seid defendant shall have from them a sufficient particion of his parte allredye setforthe, & a sufficient [assur]ance from them by fyne or Releas or otherwise at his proper costes & charges & the same beinge done he ys not onlye contented the same [missing portion]ns shalbe delivered, but also will make them the like assurance of theire partes, wherein the seid defendant prayeth the ayde of this honourable Corte, withowte that that the seid defendant dothe refuse to stand to that seid particion in anye other maner [...]re alledged or hathe made anye estates or feffementes to incumber theire or anye of theire partes so setforthe as in the seid bill ys moste untrewlye
And withowte that that anye other matter or thinge
herein conteyned in the seid bill materiall to be answered unto & herein not sufficientlye confessed traversed avoyded ys trewe all which matters the seid defendant ys Redye to averr & prove as this honorable Corte shall awarde & prayeth to be dismissed [...] resonable costes in this behalffe moste wrongefullye susteined.