THis Respondent saving the benefit of Exception to the Un­truths, and Imperfections of the said Petition, in Obedience to the Order of this Honourable House, for Answer, saith, That Sir Edward Fytton, this Respondent's Uncle, having made a Lease of his Estate for Ninety nine Years to the Lord Wharton, and other Trustees, upon several Trusts in June, 10 Car. 1. settled the Inheritance to the Use of himself for Life; and after his Death, to the Use of Jane his then Wife for her Life: Remainder to the Use of the Heirs of his Body; the Remainder to this Respondent in Tayle, with power for the said Sir Edward to revoke by Deed or Will.

That Sir Edward Fytton in November 17 Car. 1. after the Death of Jane his Wife, settled the Estate to the use of himself in Tail, with the Remainder to such persons, and for such Estates, as he by Deed or Will, in the presence of two Witnesses should appoint. And if no such Appointment, to the use of William Fytton (a remote Kinsman) for Life, with the Remainder in Tail to the Now Petitioner Fytton his Son, with power of Revocation or Alteration, at his pleasure.

That Sir Edward Fytton, and this Respondent, being in the Actual Ser­vice of his Majesty King Charles the First, in the late Wars: He the said Sir Edward Fytton (according to his frequent Declarations) 16 August 19 Car. 1. duly made and published his Will in Writing, in the presence of Doctor Smallwood (late Dean of Litchfield) Francis Hollinshead Gent. and other persons, and thereby Revok't all former Settlements, and declared this Respondent (being one of his Co-heirs at Law) to be his Sole Heir, to whom he devised all his Estate, and soon after died without Issue, leaving the said Will in Doctor Small­wood's Hands. After whose Death, this Respondent's Agents entred by vertue of the said Will, and received some Profits for some time: And this Respondent had Administration duly granted to him of the Estate of Sir Edward Fytton, with the said Will annexed. But the Wars increasing, and this Respondent continuing in the King's Service, could not attend his particular Affairs, being soon afterwards forced out of this Kingdom, for his Loyalty to his Prince; where he continued with his late, and present Majesties in Exile, till their most happy Restauration.

In which time Fytton's having set up several Titles to the said Estate, and gotten in some Incumbrances of the said Sir Edward Fytton's, and [Page 2] there being several Suits between them, and the other Co-heirs; the Fyttons got Possession by the Settlement of 17 Car. 1.

That this Respondent, soon after the King's Restauration, in Easter Term, 1661. Exhibited his Bill in Chancery, against the Trustees in the Leafe for Ninety nine Years, against the Petitioner and his Father, and against the Co-heirs at Law, and others, complaining, That he was out of Possession, and could not make his Right appear, till his Maje­sties blessed Restauration, and that he then Entred; and the Fyttons did Combine to defeat him of the Estate, and to incumber it so, as he could not enjoy the possession of it. Of all which, among many other things, Discovery is prayed, and also of the Deeds and of the Titles, Claims, and Pretentions of the Fyttons, and other Defendants, and Relief upon the whole Matter. Whereunto the Defendants having Answered, and the Fyttons having in their Answer, insisted on their Title under the Settlement of November, 17 Car. 1. did set forth a Deed Poll, as a Re­lease of the Power of Revocation in April, 18 Car. 1. not mentioned in the former Suits with the Co-heirs; but contrived to Avoid this Re­spondents Title under the said Will, and that they knew not whether Sir Edward Fytton made such Will. Howbeit, 'twas not material to them whether there was such Will or not: For that the Power of Re­vocation was released by the said Deed Poll; so that the said Fyttons made their whole Title and Defence, on the Validity of the said Deed Poll, without so much as controverting in their Answer, the Reality of the Will, acknowledging by Answer, That they were in possession of the Estate, and had received the Profits thereof, and justi­fied the same under their said Title. And the Trustees having an­swered, that they were ready to Assign, as the Court should direct.

the 13th of June, 14 Ca. 2. the Cause came to be heard before the late Earl of Clarendon (then Lord Chancellor) upon reading the Proofs touching the pretended Deed Poll, and also touching the Will, and upon the View of the said pretended Deed and Will, his Lordship directed a Trial, to try whether the said Deed was Signed, Sealed, and Delivered by Sir Edward Fytton, and after the Tryal, either party might resort to the Chancery.

In Michaelmas Term 14 Car. 2. a Tryal was had at the Kings Bench Bar, by a Jury of Gentlemen of Reputation, who after a full and clear Evidence (besides that of Granger, one of the Agents in the Forgery) the Tryal lasting about Nine Hours, the Petitioners Deed Poll was found to be Forged. At which Tryal, though the Matter of the Will was not directly in Issue, yet the same, and Sir Edward Fyttons frequent Declarations of Kindness, and leaving his Estate to this Respondent, were fully proved and offered, together with many other Facts, as Circumstantial Evidence against the said pretended Deed Poll.

The 27th of November, 14 Car. II. the Cause coming after the said Verdict to be heard, for the final determination of the Chancery: it was decreed that the Trustees should Assign to this Respondent, or as this Respondent should appoint, and that the Possession should be delivered to this Respondent, and the Deeds brought into Court, the mean profits computed since the entry of the Fyttons, and Costs paid by the Fyttons; which Decree this Respondent insists was just [Page 3] and well grounded. And yet the Court in favour to the Petitioner, declared, That notwithstanding the said Decree, the Fyttons might within twelve months bring an Action at Law for Tryal of their right upon the said Deed. At which the said Lease for 99 Years was not to be given in Evidence. And if the Fyttons should recover, did reserve a further consideration touching the said Lease, notwith­standing the Assignment; and the Examiner was to produce the pre­tended Deed-Poll at the Tryal. But if the Fyttons should not reco­ver a Verdict within that time, then the same was to be damned and made void.

That thereupon the Fyttons, within the Year according to the li­berty given them by the said Decree, did bring an Ejectment against this Respondent, which came to be Tryed the second day of No­vember, 1663. before Mr. Justice Charleton and Mr. Milward, then Ju­stices of Chester, by a Jury of eminent Gentlemen of that County; At which Tryal, which lasted about eight hours, the said Will came directly in question, as consistent with the limitations and power in the Deed of 17 Car. I. and was fully proved by Dr. Smallwood and Mr. Francis Hollinshead and other Witnesses, all since dead. Where­upon the said Fyttons stood upon the Deed-Poll (which was) no­duced by the Examiner of the Chancery, at this Respondents charge, according to the Decree) and endeavoured to prove the same to be a real Deed; which, if so, had destroyed this Respondents Title un­der the said Will. But upon a full and clear Evidence, with the ap­probation of the said Court, it again a ppeared the said Deed-Poll was forged, and a Verdict was found for this Respondent.

After which second Tryal, by Order and Decree of the 28th of November 1663. the said Court of Chancery confirmed the Decree of 1662. and ordered it to be executed, and that the Deed-Poll should be utterly damned, and made void. Since which time, being now twenty Years and upwards, this Respondent hath had the possession of the said Estate, but never got any of the Profits received by the Fyttons, nor any Costs.

That the Petitioner, with his Accomplices, having published false and libellous Reflections on this Respondents Title, and Proceedings in the said Suits; and the same being taken notice of, and the mat­ter thereof heard by this Honourable House on the 9th of July, 1663. the same was declared and adjudged to be a false, odious and infa­mous Libel. And it was adjudged by this Honourable House, after a very serious and deliberate consideration of the whole matter, That this Respondent was clear and free from all or any of the matters of the said Libel. And that the Petitioner should undergo the Judg­ment of the House, whereby he was fined to the King, and this Respondent to proceed at Law for Reparations; and that he should be committed till he produced Granger; and that he and his Accom­plices should find Sureties for their good behaviour during life.

That this Respondent prosecuting the faid Fytton in the King's-Bench for the Forgery of the Deed-Poll, at his humble supplication, after earnest sollicitation, surceased his prosecution.

That the Petitioner attempting all ways and means to invalidate this Respondents Title, to expose his Witnesses to the Will, and to lessen the credit of the said Verdicts and Decrees, caused an Informa­tion of Perjury to be filed against Dr. Smallwood and Mr. Francis Hollinshead, two of the Witnesses that proved the Will, and Assigned the Perjury in their proving the said Will, which came to be Tried at the King's-Bench Bar, in the 20th Year of the Reign of His late Majesty: And upon a full Evidence, to the satisfaction of the Court, they were found not Guilty: whereby the truth of the Will is again justified by another solemn Trial and Verdict at the Bar.

That after all these Proceedings, and more than twenty Years un­interrupted Possession, joyned to these Verdicts, Judgments, Decrees and Proceedings, and the Acquiescence of the Petitioner therein (though at liberty enough during most of the said time to travel in­to remote parts, and publickly to sollicite and manage his own and other Persons Causes) without Presenting or Prosecuting any Ap­peal to the Lords in Parliament, or any Bill of Review in Chancery till April 1684. he was admitted to his Bill of Review, by the pre­sent Lord Keeper, without paying either the Profits or Costs, a very ra [...] and extraordinary dispensation in Chancery. And this Respon­dent pleaded the matters aforesaid in bar thereof; and upon a long debate thereof, his Lordship, who heard no less than Ten Councel for the Petitioner at that time, declared, That he saw no reason to reverse the Decree: therefore dismist the Bill of Review; which dismission is since duly Signed and Inrolled. Wherefore, and in as much as it is now above Forty Years since Sir Edward Fytton died, and the Witnesses to his Will are all dead, and the said Decree was made and grounded upon so solemn Proceedings as aforesaid, and an Ac­quiescence therein for all the said time, and a Bill of Review dismist in Chancery, since this Respondent is advised it is without president, and that it would be of dangerous Example and Consequence to draw now, under another or further Examination, any the matters of Fact aforesaid, so solemnly and deliberately settled, and render the Ju­stice of the Kingdom unstable and unsafe to be relied upon:

And therefore he humbly prays the Judgment of this Hono­rable House, Whether they will be any further troubled in this Matter, but that the said Petition may be dismist with Costs, &c.