to the Lords, and shewed that the question in this cause was, whether a settlement made by old Captain Thwaites, appellant's grandfather, 12th December, 1678, had been rased or altered after it was executed? If it had been so rased or altered, the case would be with respondents: and that it was found by two verdicts at law, that the deed was rased and altered after execution; for that after a hearing in the Exchequer, when matters were fresh in memory, and the witnesses living, upon a solemn trial at bar, 15th June, 1683, the jury found the deed rased and altered after execution, and a decree in the Exchequer was then made accordingly; after which the matter rested in quiet many years; and respondent, Deye, wanting money, the Lady Bridgman (being advised by council that, after such a trial and decree, the title was good) lent Deye 2000l. upon a mortgage of the estate, which, with many years interest, was still due to her: And that in December, 1619, an appeal was brought from this decree. And upon hearing the cause, 25th April, 1690, the Lords were pleased to open the decree so far, as to give liberty to try the cause again, but appellant resting quiet for eight years, and not proceeding therein, the Lady Bridgman, who was now forced to follow and look after the cause, in April, 1698, applied to discharge the order for another trial; and the Lords thereupon, 23d May, 1698, ordered that the intended new trial should be had within a year then next; but that not being done, Lady Bridgeman, 23d March, 1699, again applied to the [180] Lords, who ordered that the trial should be had before the end of Michaelmas term then next; and that a trial was had in Trinity Term, 1700, and (by surprise, and against the weight of the evidence, as she was advised) a verdict was found contrary to the former verdict; and that thereupon the Lady Bridgeman applied to the Lords for liberty to try it again, her debt being equal to the value of the estate; and Deye, the mortgagor, being insolvent, and that the Lords directed a new trial upon payment of costs, and that the Lady Bridgeman might defend in the name of Deye, and she had accordingly paid 52l. costs: And, 19th November, 1701, a very solemn trial was had by a special jury of gentlemen of the best quality in Middlesex, at the bar of the Exchequer, which lasted almost two days and a night, and a verdict found agreeable with the first trial, that the deed was rased and altered after the execution thereof. Lady Bridgeman, by her petition, therefore prayed, that the appeal might be dismissed, and the decree made in the Exchequer affirmed; and that she might have the costs of these proceedings, and of the last trial, she having been at the charges thereof. (Sam. Dodd.)
Aud the respondents on their part made this case: That the single question was, whether respondents Frances's, name had been rased out, and her brother, James, appellants father's name inserted instead thereof, in a deed of settlement made by William, her father, upon her, said Frances, and her younger brother, Thomas, before or after the execution of the same deed? the words rased out being "Frances, daughter," and the words inserted, "James, eldest son;" and that respondents discovering that the rasure was made after the deed sealed, and not having the custody of the deed, in Trinity Term, 1682, exhibited their bill in the Court of Exchequer against said James Thwaites and Street, and Heath, his guardians, who kept and concealed the deed, and refused to produce it, to discover the settlement, rasure, and alteration, and to be relieved: And that the cause was regularly heard, and a trial at bar directed, and had, by a special jury of gentlemen, whether the rasure was made after the deed executed? and a verdict, that the rasure was made after sealing the deed; and a decree made thereon: And that Jonathan Ball, one of said James's witnesses, [181] was convicted of perjury, and stood in the pillory for the evidence he gave in the trial: And that respondents being in quiet possession of the premisses under the said verdict and decree, mortgaged same to Lady Bridgeman for 2000l. and that the deed had been left with a Mrs. Welch, by William, and Mrs. Lymbrey had fetched it away about a week after, as she pretended, by William's order, and consequently the same could not, as was alleged, be with Heath the day it was sealed; and the probability was, Lymbrey and Street, who were James's partizans, might, after they had made the rasure, have delivered it folded up to Heath who might have then delivered it without knowing of the rasure: And that Lady Bridgeman's trustees had taken upon them the management of this cause before the Lords, ever since the order of the 25th April, 1690, hitherto, and consented in respondents name, unknown to them, to an order
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