WIlliam the Father being interested in the premisses for a term of about 30. years paying 10l . per annum Rents , did by Indenture dated 28. Feb. 1659. demise the same to Robert Wally for 18 years at 40 l. per annum , for the first 3 years and 50 l. per annum for the latter 15 and gave a Bond of 200l . penalty conditioned that if at the end of the 3 years the said Robert should make it appear he could not be a Gainer paying 50 l , per annum , then he should hold it at 40 l. per annum , during the whole Term .

Robert Wally entred , kept possession , and paid the Rents to William the Father untill .

William the Father by writing under his Hand , 27 April . 1661. Assignes all his Interest in the premises to William his Son , and soon after delivered the original Lease , by which he claimed the counterpart of Roberts Lease and other the writings concerning the premises unto him .

William the Son thereupon demands the Rent , which Robert refused to pay , unless thereunto required by William the Father , whereupon ,

William the Father writs a Note , 28 Iuly 1661. signs it , and sends it by his own man to the said Robert , acquainting him that he had assigned his interest to William his Son , and requiring him to attourn Tenant and pay his Rent to him : first paying the cheif Rent of 10 l. per annum to Mr. Badger , who was to receive the same , Robert accordingly turned Tennant , paid his Rent to William the Sun until ,

William the Father and William the Son being at difference , 29 Sept. 1662. Mic. Term 1662 Hillary 1662. William the Father serds to forbid paying any more Rent to his Son , which order Robert observed whereupon ,

William the Son sued the said Robert at Common Law for the Rent .

William the Father exhibits a Bill in Chancery against Robert setting forth he had lost the Counter part of his Lease , that Robert refused to pay his Rent , and he could not sue him for want of the Counterpart , prayes he may discover whether he did not Seal such Counterpart and that he may be decreed to Seal a new one .

Robert the same Term answers and setts forth all the matter aforesaid , confesseth the Rent in Arrears , and submits to pay it as the Court should direct , and exhibits a cross Bill against Father and Son to have them interplead to whom the Rent did belong .

William the Father answers , Mich . Term 1663. therein confesseth the Note sent to Robert to atturn Tenant to his Son , confesseth the signing the Note , purporting the assignment to his Son , but saith he did it against his will at the importunity of his Wife , and her Mother , and intended it only for a present maintainance to him , whilest he should continue a dutiful Son : saith , his Son took all the Leases and Writings out of his Closer .

William the Son answers , Mich . Term 1663. setsforth the assignment , and the Note of direction to Robert Wally , in hec verba , and saith his Father delivered him all the Writings that concerned the premises , and the Counterpart of Wallyes Lease , and sets forth the reason of his Fathers anger , because he refused to be bound with him for a great sum of moneys , which he refused because he was bound with him for many great sums , and had no collateral security , whereupon his Father turned him out of Doors . From Hillary 1662. till a ter Trinity 1666. William the Father never proceeded in his cause , whereupon William the Son and his Wife and Children being ready to starve ; Robert was advised by Council ( he having the right ) to surrender up his Lease to him and take a new one from him for the remainder of the 18 years , which he did do accordingly , and paid William the Son all the Rents in Arrears .

After this in 1667. 4 No. 1667. William the Father proceeded in his Cause and brought the same to hearing , as also Roberts cross cause , when a decree was made against Robert to Seal a new Counterpart , to pay William the Father all the Rent , Arrear , since Mich . 1662. and the growing Rent , and decreed William the Son , to deliver up all the leases and Writings to the Father .

Of which hearing Robert had no notice , he leaving the management to William the Son who finding himself agreived with the said decree , petitioned for a rehearing , and

Arehearing was had , 29. April . 20 Caroli 2. when the decree against Wally was confirmed , but so much as concerned William the Son , his delivering up the Writings was set aside , all this time Robert had no notice nor knew of the hearing till the decree sigued and intolled , when ,

Robert being served with the said decree performed not the same , whereupon he was taken upon an Attachment , and examined to Interrogatories , and their swore the truth of all the premises , as also that he had not that Lease made by William the Father , nor could come by the same , it being burnt upon the agreement made with William the Son in 1666. which was long before the Decree .

Whereupon the Master of Chancery proceeded to state the Accompt of Rent in Arrears till March . 1668. Computed the sum to 113 l. The report confirmed , Robert served and paid the said 113 l. to William the Father ; nevertheless is prosecuted to a Contempt , and to a Committment for not sealing a Counterpart of the Lease made by William , the Father , which is impossible for him to do ; but he got the Counterpart of the Lease he hath from William the Son , ingross'd , carried to William the Fathers Attorney , left it with him , offered to seal it but it was refused to be accepted by William the Father .

Robert in pursuance of the Decree refusing to pay any more Rent to William , the Son .

William , Mich . 1668. the Son , brings an Ejectment against him wherefore he gave notice to William , the Father , to defend his Right , he neglected the same , and so Rebert was Ejected , and William the Son had Possession delivered him by the Sheriffs of Middlesex .

William , the Father , since the Decree is become a Bankrupt , so that if he had any Right , the same belongs to the Commissioners of Bankrupts .

Robert , being a Brewer , is forced to pay the growing Rents beforehand to William , the Son , otherwise must be ruined ; by being kept from his water to Brew ; Neertheless stands Committed for not paying the said Rent to William , the Father , whose Title cannot protect Robert in the Possession .

And if he should pay to Father and Son , then must pay it again to the Commissioners of Bankrupts .

But which is worst , if he pay to the Father and the Son , and to the Commissioners of Bankrupts : yet he is lyable to Committment as long as he lives , for sealing the Counterpart of the Lease made to him by William Father .

Upon these Accompts Robert Appeals to the Supreme Court of Judicature , the Lords Spiritual and Temporal in Parliament Assembled , praying the said Decree may be Reviewed and Reversed , he relieved , proceeding on the Decrees stayed .

Whereupon the Lords Committees for Receiving and Considering Petitions did in March 1669. grant an Order for staying the said Robert his actuall Commitment , upon which Order , he hath ever since been kept out of the Fleet .

It is observable that in Michaelmas Term 1669. William the Father , brought an Ejectment against William his Son , William his Son pleaded to him , the same Term Issue is joyned , and the Son been ever since pressing the Father to come to a Tryal , but he refuseth the same , and yet presecutes the said Robert upon the Decree aforesaid .

Why William the Son joyned with Robert Wally in this Appeal there is no Derce made against him , therefore the Appeal irregular , and not by proper parties and so ought to be dismissed . The Decree is against William the Son , in that he by his Covenants is lyable to make good all the damages which Robert sustains by the Decree : whereby he hath been forced to pay his Rent to the Father which he had beforehand paid to William the Son .

If two persons in Chancery complain , and at the hearing the Court find , that onely one of them hath a right to Claim , the Court in that case Decrees for him who hath the Right , and not reject the Bill , because one is joyned therein who had no reason to pray Relief .

Robert hath William the Son Covenant for his quiet injoyment , and to save him harmless against William the Father ; and William the Son having evicted him out of possession , he hath a remedy against him at Law , upon an Action of Covenant , and so may recover damages , therefore ought not to come into Parliament by way of Appeal .

William the Son it is true , hath Covenanted for Roberts quiet enjoyment , but it is onely so long as Robert payes his Rent , and performs his Covenants .

But Robert being Decreed to pay to William the Father , did deny paying to William the Son ; whereupon William the Son , hath Ejected him out of possession , and yet there is no breach of Covenant in William the Son , the breach was on Roberts partin not paying his Rent , and so Robert cannot recover any damages at Law .

There is a Bill of Review lyeth which ought to be brought before the Appeal . And here is a great deal of new matter for new Bill .

No Bill of Review can be brought , till the Decree be performed , which is to Seal the Counterpart of the Lease made by William the Father ; this he hath not to seal , so can never perform the Decree : and therefore can never have a new Bill , or Bill of Review .

The Court of Chancery hath already directed Sir . Thomas Eastcott Knight , one of the Masters of Chancery , If the Lease be lost , to setle a new Lease .

It is true , there was such an Order , but they knew that Sir Thomas reported , that he did not find by Waslye's Examination , that the same was lost : for he had delivered it up to be Cancelled , to William the Son ; and therefore he had forborn to settle a new Lease ; and they as well know that Robert hath divers times moved to have such new Lease setled , and upon their own opposing , the Court hath denied to Grant it .

Wherefore it is prayed the said Decree may be Reversed , or that Robert's Commitment may be set aside ; And he admitted a new Bill or Bill of Review and be saved harmless in his payment to William the Son , since his Ejecting him out of the Possession , and until the Father recover the Possession by Law .