SIR John Berkenhead died seized in Fee of four six parts of Little Lincolns-Inn-Fields , and possessed of another sixth part , for the remainder of Ninety-nine Years ( The other sixth part was bought of Sir William Hooker ) and of a personal Estate in Books and other Goods . And by his Will in December 1679. gave all his Lands to Rupert and Randolph Berkenhead , to perform his Will ; which if they did not in six Months , he then gave his Estate to his Executors , Sir Richard Mason and Serjeant Brampston , for the uses aforesaid .

Dr. Birkhead , a Creditor of Sir John Berkenheads , being acquainted with the Plaintiff , Sir Robert Cleark , told him , That he believed there might be a very advantageous bargain bought of the said Fields ; and Sir Robert Cleark being next Chamber-Fellow in Lincolns-Inn to Mr. Serle , and well acquainted , told him of the said bargain ; who earnestly desired , that he might be admitted a sharer with them in the said Purchase ; to which Sir Robert ( believing him to be an honest man ) consented , and so did the Doctor upon Sir Robert's Request .

They proceeded in a joynt design of Purchasing . And the 7th . of January 1679. they made an Agreement in Writing with Rupert and Randolph Berkenhead , for Sir John's Real and Personal Estate , which was to this Effect : That they should satisfie Sir John's Debts and Legacies , according to his Will , and to pay 642 l. to Rupert , and 600 l. to Randolph Berkenhead .

The 13th . January 1679. Rupert and Randolph , in consideration of 1200 l. Execute a Conveyance of the Fields to Mr. Serle , and his Heirs ; for which , Sir Robert Cleark became joyntly bound with Mr. Serle , to pay each of them 600l . a piece at the end of three Months , with Interest ; and of the remaining 42 l. to Rupert , Sir Robert paid down Eighteen Guinues , and Mr. Serle the rest .

The 16th . January 1679. Mr. Serle Executes a Conveyance under his Hand and Seal , to Sir Robert Cleark , reciting the Deed before made to him of the said Fields ; and declaring , That it was in Trust for Sir Robert Cleark and his Heirs , as to one third part thereof , he paying a third part of the purchase Money ; and of all the Debts , charges and incumbrances thereon . And at the same time , Executes the like Conveyance to Dr. Birkhead , for another third part ; upon the Sealing of which , the Doctor gave up a Bond of 500 l. ( being a Debt of Sir John Berkenhead's ) to be Cancelled , and entred into another of 1000 l. to Mr. Serle , to pay the remainder of his third share of the Purchase Money .

February , 21th . 1679. For a further Confirmation of the former Agreement made with Rupert and Randolph Berkenhead ; The two Executors , Sir Richard Mason and Serjeant na Bmpston , make a Bill of Sale of all the personal Estate to Sir Robert Cleark and Mr. Serle ; who thereupon became joyntly bound to Mr. Bully , for the payment of 200 l. ar to Sir Henry Bernard for 250 l. to pay the Debts of the Will .

T●dhe 6th . of March , 1679. Dr. Birkhead delivers up his Deed of Trust for the Equall benefit of Sir Robert and Mr. Serle ; and thereupon they became joyntly bound to pay him 500 l. with Interest ( which Sir Robert has Since paid . )

The 13th . of March 1679. for a further Coroboration of their Title to the Fields , The two Executors , and Rupert and Randolph Berkenhead , all joyn in a Conveyance of the Fields to Mr. Serle and his Heirs . ( The Estate being Conveyed to him at first . ) And at this time , Mr. Serle ( it seems ) designing some Advantage thereby , told Sir Robert , That he need not joyn in the Bonds to the Berkenheads as before ; for that he was bound for Money enough already , till the Estate in Law was conveyed to him ; and that he would perswade the Berkenheads to take his single Bond , which they did accordingly ; and the former Bonds were delivered up .

Sir Robert Cleark about three Years after sells his Moyety of the said Fields to Dr. Barbon for 3000ll . of which 2000 l. was paid down , the other 1000 ll . was to be paid upon Sir Roberts Executing a legal Conveyance to the Doctor , his Heirs or Assignes .

Sir Robert , that he might perfect his Agreement with the Doctor , desires Mr. Serle to Convey to him the Moyety of the Fields : Which he refusing to do , he brought his Bill before the Right Honourable the Lord Keeper ; who , upon hearing the Cause , thought fit to decree , That he should have a Moyety of the Personal Estate ; but did not decree him his Share of the Fields ; for the reason ( as he humbly conceives ) that he believed , that Sir Robert waved his Interest , and promised to deliver up his Deed ; and the chief proof of this Evidence , is from what Samuel Ogle , the Servant of Mr. Serle , and Randolph Berkenhead Swears ; which are to this Effect :

All which Sir Robert Cleark hath , in Two Answers , upon his Oath , denyed ; and how improbable it is to be true , which he swears , will appear by these Circumstances :

I. There could be then no such Condition as Ogle swears : That is , That Sir Robert should pay his Money when the Executors should joyn : For they had not then Agreed with the Executors ; and therefore could not tell , whether they would joyn , or no . They were then no ways obliged to do it ; and it was not necessary , the Title being Good without .

II . It is not probable , there was such a Condition annexed ; for Ogle swears it , that drew the Deed ; and had it been true , might as well have put it into the Deed . And Mr. Serle is a Counsellor , that directed the Deed , and would not have suffered his Servant to omit such a Condition , because he knew it would not then be good in Law .

III . There was no Occasion for such a Condition ; for Sir Robert Cleark had , Three Dayes before the Deed was Sealed , paid his Proportion in Money , and by being bound with Mr. Serle to the Two Berkenheads ; which were not due in a Month after the Time the Conveyances were sealed by the Executors ;

Besides , it is not probable to be true , what Ogle swears , That Sir Robert , on the 13th . of March , 1679. did not pay his Purchase-Money ; and therefore , afterwards , waved his Interest , and promised to deliver up his Deed of Trust .

I. For the Money was only then paid by Bond ; and Sir Robert might have been better able to have paid his share of the Bonds , when Due , as well as those other , wherein he was before bound , by having a share in the Field , which were of very great Value ; then he could be to pay the other Bonds without a Share .

II . For on the Sixth of March , ( being Seven Days before ) he was bound to Dr. Birkhead , to pay Five hundred Pounds for his Third Share of the Lands ; and in that short time , there doth not appear any Change in the Value of the Estate ; and therefore no reason ( on a sudden ) to change his Mind ; for it was before any Opposition to the Building from Lincolns-Inn : And about that time , they were offered , by Dr. Barbon , One thousand Pound profit for that Third Share : And before that , they valued the Fields at Twenty thousand Pounds , as appears by Proof .

III . There is not the least Proof , That Mr. Serle did give , or offer'd him any Consideration , for the waving his Interest , and promising to give up his Deed of Trust .

IV . Nor any Proof , That he was to be saved harmless , and Indemnified from those Bonds he had entred into , to Dr. Birkhead , Mr. Buily , and Sir Henry Bernard .

V. There is Proof , That after the Thirteenth of March , and Time of the pretended Waver , Sir Robert concern'd himself in getting a Patent from the King , to build the Fields ; and his Name is in the Petition and Bill for the Patent .

VI . There is Proof , That Sir Robert Agreed after the Thirteenth of March , 1679. to buy an House in Chancery-Lane , to make a better Way into the said Fields ; and concerned himself in the Modal for Building , and staking out the Fields .

VII . Besides , after the Thirteenth of March , Sir Robert , in an Answer to Mr. Cary's Bill , Exhibited for his Right of some Privileges in the Fields , swears , He had an Interest with Mr. Serle in the said Fields : Mr. Serle , in his Answer to the said Bill , does not deny it ; and they joyntly maintain'd the Suit : Whereas , had Sir Robert then waved his Interest , he might and would certainly , in his Answer , have disclaimed All Interest in the Fields , and saved himself the Charge and Trouble of the Suit .

All which makes it probable , that what Ogle , and Rupert Berkenhead have sworn , is not true , but on the contrary : The Reason why Sir Robert did not joyn in the Bonds , was , by the Artifice of Mr. Serle , telling him , there was was no occasion ; For that Berkenhead were content to take his single Bond .

But if it had been true , it is but a Discourse , and ought not to set aside a Deed under Hand and Seal , since the Act made against Frauds and Perjuries ; which has provided , That no Deed nor Declaration of Trust , shall be Assigned , made Void , or Altered , but by Writing .

I. For this Decree makes a Breach upon an Act of Parliament , and will leave a Gap open hereafter for crafty and designing Men , who know it is easier to get Words and Discourse sworn , than to Alter what is written ; and therefore , the Law was made to defend Men's Estates against such intreagues ; and how dangerous may the Consequence be , is obvious ; since it is a time , when Perjuries , to the Amazement of Man-kind , have been practiced .

II . If this Decree should not be repealed , it will be the occasion of perpetual Suits in Chancery : For Cleark's Case will be cited for a Precedent , by all those , whose Interest it is to make use of a Discourse , to avoid a Deed : And if it should be Confirmed by a Decree of the House of Lords , it will have the greater Authority : Now there will be an Act of Parliament against Frauds and Perjuries , for those that are on the contrary side ; so that it will remain solely in the Breast of the Court of Equity , which side to take , which cannot be known , but by a chargable Suit .

III . If there should be such a Power left in a Court of Equity , to allow a Discourse , to alter or make void a Deed , then no Man can purchase with any Safety : And that Act which was made for the Benefit and Security of the Purchaser , will become his greatest prejudice ; for before this Law , the Purchaser had a Remedy upon his Covenant against Incumbrances , if by any Discourse or Evidence of that sort , his Title was prejudiced . But now , ( by this Law ) Discourse is no Incumbrance ; so that , the Purchaser may lose his Estate , ( as will be the Case of Dr. Barbon , if he be not relieved ) and he has no Remedy against the Person that Sells .