This document is at the National Archives Kew under the reference C_12_952/46 Traies v. Wivell and consists of three parts :-
Transcription was carried out in situ at Kew by reading a few words of the document, temporarily memorising them, writing them into an A4 notebook, going to the next few words, and repeating the process. This was done over a period of 4-5 hours. There was insufficient time to proof read the resulting A4 transcript and to transcribe the whole of the document. The transcription covers about one third of the total lines in all 3 parts of the document. This method of transcription is error prone. There is high risk of returning to the wrong section of the document and thus omitting part, particularly when so much of the document consists of the same repeated phrases. Great care was taken and the transcriber believes the transcript to be substantially correct.
The documents have been transcribed using spelling of original except:-
From a family history point of view, the document does the following:-
Amended by order later the 14th day of May 1798
To the Right Honourable Alexander Lord Loughborough Baron of Loughborough in the County of Leicester Lord High Chancellor of Britain
Humbly complaining whereunto your lordship your orator William Traies the elder of Crediton in the County of Devon one of the surviving
executors named in the last Will and Testament of John Traies late of the parish of St Pancras in County of Middlesex gentleman deceased
and also your orators and oratrix John Traies, James Traies, William the younger, Samuel, and William Jackson of Crediton aforesaid sadler,
and Mary his wife, late Mary Traies, your orators John Traies, James Traies, William Traies the younger, and Samuel Traies and your
oratrix Mary Jackson being the sons and daughters of your orator William Traies the elder
that Abraham Wivell of Saint Pancras aforesaid carpenter and joiner of the defendant hereinafter named for a full and valuable consideration
duly executed a bond of obligation bearing date on or about the 13th day of February 1786 whereby he bound himself his heirs executors and
administrators unto the said John Traies deceased in the penal sum of two hundred pounds with a condition thereunder written for making the
same void on payment by him the said Abraham Wivell his heirs executors or administrators unto the said John Traies deceased his executors
administrators or assigns of the sum of £100 of lawful money of Great Britain with lawful interest for the same on a day therein mentioned
and long since past as by the said bond when produced to this Honourable Court will appear
and your orators and oratrix further shew unto your lordship that the said sum of one hundred pounds or any part thereof was not paid
according to such condition of the said bond but that the whole of the said principal sum of one hundred pounds and all of the interest
thereof at the rate aforesaid remained due and owing to the said John Traies deceased at the time of his death
and your orators and oratrix further shew that the said John Traies deceased made his last Will and Testament in writing bearing date 16th
day of July 1787 and after several devices and bequests therein gave all the residue of his chattels and effects unto the children of his
brother, your first named orator, to be divided amongst them and the said testator made? your first named orator and Daniel Baston (since deceased) and the said Abraham Wivell executors of his will and shortly afterwards died without revoking or altering such will and which the executors named duly proved in the Prerogative Court of the Archbishop of Canterbury
and your orators and oratrix further shew to your lordship that the funeral expenses debts and specific legacies of the said testator have
been all long since paid and discharged and the general amount of his personal estate and effects accounted for to those interested therein except in respect of the said bond from the said Abraham Wivell to the said testator on which there is now due for principal and interest computed to the 9th day of October 1797 the sum of £68 18s 2d the same being reduced to that sum by the amount of the said Abraham Wivell’s bill for funeral expenses of the said testator amounting to £50 4s 8d and the sum of £10 paid by him to your orator James Traies on account of the money due on the said bond
and your orators and oratrix further shew that your orators and oratrix the children of your first named orator have all attained their
ages of 21 years and, being entitled to the residuum of the said testator’s estate and effects of which the money remaining and due for
principal and interest on the said bond is part, they have, at several times applied by themselves or their agents unto the said Abraham Wivell and requested him to pay the said sum of £68 18s 2d so remaining due for principal and interest on the said bond as aforesaid and your orators and oratrix hoped that the said Abraham Wivell would have complied therewith as he ought to have done
But now so it is may it please your lordship that the said Abraham Wivell combining and confederating to and with divers persons at present
unknown to your orators and oratrix but whose names when discovered your orators and oratrix pray that they may be at liberty to insert
herein with apt and proper words to charge them / how to injure your orators and oratrix in the promises the said Abraham Wivell sometimes
pretends that he did not execute such bond to the said John Traies deceased as hereinbefore mentioned
or that if he did the whole of the principal money and interest that became due thereon hath been long since paid off and discharged either
to the said John Traies deceased in his lifetime or to your orators and oratrix or some or one of them since his death (NOTE: there then
follows a section of 12 lines crossed out and not included in this transcript)
or at most that there is a very small or inconsiderable sum of money remaining due upon balance of the said bond for that the said defendant,
exclusive of the several sums of £50 4s 8d and ten pounds for which your orators have as aforesaid given the said defendant credit, he the
said defendant, on or about the 8th day of April 1789, paid to the said Daniel Baston as one of the executors of the said testator the sum
of £30 and which the defendant insists ought to be considered in further reduction of the principal and interest of the said bond
for that
the said testator John Traies having lent his, the defendant’s, brother Walter Wivell £30 he the said Walter Wivell in order to secure the
repayment thereof with interest executed to the said John Traies a bond in the penalty of £60 conditioned for the payment of the said £30
and interest that the said Walter Wivell having had the promise of a lease of a piece of ground on the East side of Marylebone Lane from a
Mr Joshua Hirst or Hurst did by way of collaterally securing the said £30 and interest make some agreement with the said John Traies whereby
he agreed when such lease should be granted to him the said Walter Wivell to assign the same to the said John Traies subject to redemption
upon payment of the said £30 and interest and that the said Walter Wivell died without obtaining such lease in ..(NOTE: word not transcribed)
circumstances and insolvent and that your orator William Traies the elder having frequently applied to the said defendant for payment of the
said £30 and interest due from the said Walter Wivell and defendant being also indebted to the said testator’s estate He the defendant did pay
the said sum of £30 upon terms and conditions following viz
That if he the defendant should obtain a good lease of the premises which the said Mr Hirst otherwise Hurst had promised to grant to the
said Walter Wivell, he the defendant would then pay his said brother’s debt of £30 but in case he the defendant should be disappointed of
such lease then the said £30 was to go and be considered in liquidation of his the said defendant’s own debt and that the said sum of £30
was accordingly paid by him the defendant and accepted by the said Daniel Baston upon the terms aforesaid and the same was also agreed to
by your orator William Traies the elder and that the said Daniel Baston and your orator William Traies the elder also agreed that the
interest should cease for the said £30 as part of the said defendant’s bond from the date of receipt and that he the defendant should not
from that time be charged with any interest upon the residue of his said debt on condition that he the defendant made no charge as one of
the executors of the said testator
Whereas your orators and oratrix expressly charge that the whole of the said pretences are unfounded and untrue for that it appears
by a Bill fyled by the said defendant in this honourable court on the 3rd day of February 1796 against Martha Hirst widow, Robert
Blackburn and Martha his wife, Sarah Bean and Martha Bean and is stated therein that he said defendant and complainant in the said Bill
and his late brother Walter Wivell agreed with the said Joshua Hirst by writing under their respective hands and signed by them
respectively bearing date the 18th day of March 1785 for a lease of messuage and tenement in Marylebone adjoining to the inn called
Marylebone Inn for the term of 21 years under the rent therein mentioned and that the said Walter Wivell having died in the month of
September 1791 the benefit of the aforesaid agreement survived to him the said Abraham Wivill (NOTE sic as spelt in original) who became
and was entitled to have such lease pursuant to the said agreement and that the said Abraham Wivell was at the death of his said brother
and ever since had been in posesion (NOTE sic) of the said premises
and that on or about the 6th day of May 1795 the said Martha Hirst the administratrix of the said Joshua Hirst executed to the said Abraham
Wivell a lease of the said premises and that it also appears by the answer of the defendants to such Bill that they having commenced action
against the said Abraham Wivell on account of his non performance of the agreement and otherwise he the said Abraham Wivell paid into the
Court the sum of £77 10s and pleaded the general issue (?) and that by the death of the said Joshua Hirst the suit became abated and the
said defendants by their answer insisted that the said lease so executed by the said Martha Hirst was a good and valid lease or in case it
was not that they were ready and willing to do or join in any act fit for making the same valid
but your orators and oratrix expressly charge and the said Abraham Wivell well knows the same to be true that the said sum of £30 paid by
the said Abraham Wivell to the said Daniel Baston was as and for the consideration of some houses in Kings Gate Street Holborn a part of
the Trust Estate of the said testator John Traies which the said Abraham Wivell took of your orator William Traies the elder on or about
midsummer 1788
and your orators and oratrix charge that the said Abraham Wivell or some person in trust from him had and enjoyed the said houses in
consequence of the said purchase and payment of the said money
and your orators and oratrix particularly charge that in a letter from the said Abraham Wivell to your orator William Traies the elder
dated on or about the 17th day of February 1789 the said Abraham Wivell wrote to your said orator William Traies the elder that he the
said Abraham Wivell had received your said orator’s letter and also a letter from his lawyer meaning as your orators and oratrix apprehend
either the said Messrs Jenkins and Co or Mr Samuell Rudall of Crediton who has wrote the said defendant by your said orator’s direction in
respect of the business of the said last mentioned houses and the said Abraham Wivell therein also expresses himself as follows
‘Sir, I want nothing from you or any person else but that I will pay the value for in the first place you told me you would allow me the
rent that was due from Hanes who was in posesion (NOTE:sic as spelt in original) as tenant of part of the said premises which at Christmas
last 1788 was £22 which I arrested him for and put him to prison. Then I had the house to repair and land tax to pay and the ground rent
which is two years and half at Lady Day next of which I have paid two payments and when Lady Day comes I mean to pay the other and I have
the Attorney Bill which when all these expenses are put together they will amount to a great deal of money and I have reduced £13 4s clear
rent so I hope you will think of my loss on this account I mean to give you in answer to your letter. You desired me to give your attorney
£40 meaning for the purchase of the said houses which I do not think it fair of you because no man in London would have offered you so much
money as I did but I expected the money to pay the ground rent which became due after that to Lady Day but I have had it all to pay and a
great deal of money out of pocket besides which if it is not settled I must make you out a fair bill of all expenses. The proposal I have
made Mr Baston is that I will pay into his hands £30 on your giving a receipt for the same and so we will settle it. As I am a great deal
out of pocket and I shall be glad if you will send my brothers bond meaning the said bond from the said Walter Wivill (NOTE sic as spelt
in the original) hereinbefore mentioned to Mr Baston likewise for the creditors are going to sell the house so I hope you will have that
money too.’
As by such letters and correspondence in your said orators’ custody reference being thereunto had will more fully appear
and your orators and oratrix charge that from the several letters and transactions aforesaid that it is clear and evident and the defendant
in his conscience well knows that the said sum of £30 to the said Daniel Baston was as and for the consideration of the said houses in
Kings Gate Street and for no other purposes whatsoever and that the transaction respecting the houses in Marylebone Lane hath nothing to do
with the payment of the said sum of £30 and that the said defendant Abraham Wivell had in consequence of his no paying the said £30 the
posesion and sole use and benefit of the said houses in Kings Gate Street aforesaid and had no other right or title to the same but under
and by virtue of the agreement and transactions hereinbefore set forth respecting the same
and your orators and oratrix charge that there is now justly due and owing such sums hereinbefore mentioned for principal and interest on
the said bond computed to such time as aforesaid and that the said defendant never did pay any other sum of money than as hereinbefore
mentioned to the liquidation of the money secured by such bond and that on account thereof by way of Debtor and Creditor hath been
delivered to the said Abraham Wivell and so the said defendant well knows the … to the … at some other times the said Abraham Wivell
pretends and gives out that it is true there is such sum of money as hereinbefore stated and in the account delivered to him due on the
balance in respect of the said bond but that he hath laid out and expended various sums on account and in respect of the execution of the
Trusts of the said Testators’s Will and that there is in fact a large sum of money due to him the said Abraham Wivell on the final balance
of all accounts
Whereas your orators and oratrix expressly charge the contrary thereof o be true and that on or about the month of June 1789 when your
orator William Traies the elder was in town a meeting was had by him with the said Abraham Wivell and that all accounts were then settled
by them in respect of the affairs of the said testator except the principal and interest remaining on the said bond and that the said
Abraham Wivell by a paper/writing properly stamped bearing date the 6th day of June 1789 and signed by him expressly declared that he had
settled with Mr Traies (meaning your orator William Traies the elder) on the account of the late John Traies of any demands whatsoever up
to that day and in full of all demands whatsoever and the said Abraham Wivell in his conscience well knows he hath not any demands
whatsoever on the said testator’s estate or your orators and oratrix in respect thereof
But then he gives out that he, in his character of a trustee and executor, cannot be prosecuted at law thereon and is not liable to account
to your orators and oratrix for the money remaining due on the said bond and that therefore he will set your orators and oratrix at de…
(NOTE: word not transcribed) and not account for and pay the same to your orators and oratrix or any of them and gives out and insists
that in case your orators and oratrix should fyle bill in this court that the costs and expenses of such suit will be decreed to come out
of the residuary estate of the said testator and that therefore it is indifferent to him whether any bill is fyled or not and that he will
not pay the money that he knows the same is justly due all which actings and pretences of the said confederate are contrary to equity and
good conscience and tend to the manifest wrong and injury to your orators and oratrix in the promises
In tender consideration whereof and for as much as your orators and oratrix in the promises at and by the strict rules of Common Law and
can only have relief therein through the assistance of account of equity
And to the end that the said Abraham Wivell and his confederates, when discovered, may upon his and their several and respective corporal
oaths and according to the best of his and their respective knowledge remembrance information and belief full true and perfect answer make
to all and singular the matters aforesaid and that as fully and particularly as if the same were here repeated and he and they thereunto
distinctly interrogate and more especially
whether he the said defendant did not execute such or the like bond as is hereinbefore mentioned
to have been executed by him or some and what other bond to the said John Traies deceased and of what date and in what penalty and
conditional for the payment of some and what sum of money and the interest thereof and at what rate of interest and when payable or
otherwise and how or whether the principal sum of £100 mentioned in or secured by the said bond or any and what part thereof and when
and at or about what time paid or satisfied by the said defendant to the said John Traies deceased in his lifetime according to the
condition of the said bond or
Otherwise and how and whether the whole of the said principal sum of £100 or some and what part thereof and the whole of the interest
thereof at the rate aforesaid or at some and what other rate of interest did not remain due and owing on the said bond to the said John
Traies deceased at the time of death or otherwise
(NOTE: there is about one half of an A1 page left to transcribe to complete the complainants’ case – this half page appears to continue
in the same vein and state the legal aspects of the case rather than the facts – it is therefore thought to add nothing of interest to the
family historian)