A REPLY TO A PAPER, ENTITLED, A True Account of the unreasonableness of Mr. Fitton' s Pretences against the Earl of Macclesfield.  
Whereas that Paper calls, Mr. Fitton a remote Kinsman; Observe, the Relation stands thus, Sir Edw. Fitton, Treasurer of Ireland, had Issue Sir Edw. Fitton, and Alexander; Sir Edward was Grandfather to the last Sir Edward, and Alexander was Grandfather to the Petitioner.  
IT is alleged in the Paper, That Mr. Fitton had been but Four Years in Possession, and that before that time the Earl of Macclesfield was in possession by virtue of the Will.  
As to the Fitton's Possession, the Case stands thus: Sir Edward Fitton died in 1643. In 1647. William Fitton recovered the Possession of the Manor of Alford and Gawsworth-Park, which was all the Estate that was not in Mortgage or Jointure. In 1652. the Mortgage was redeemed by Mr. Fitton, and about 1655. the Jointress died, and from that time he had possession of that part of the Estate also.  
As to the Earl's prior Possession, the Fact is thus: He, together with the other Coheirs, upon the death of Sir Edward Fitton's Mother, did enter upon Alford, and received his seventh part of the Profits, as one of the Coheirs, till the Fittens recovered the Estate from them; which is so far from being a Possession under the Will, that it is a demonstration he did not then believe there was any such. And for many years in many Suits between the Coheirs and the Fittens, as well when they were Plaintiffs as Defendants, the Earl was joined with them.  
The 2d Matter alleged is, That the Chancery did no wrong to Fitton, by not suffering him to try the Title to the Will, because upon his Answer he never contested it.  
The falsity of this Allegation appears by the Words of the Answer; And these Defendant say, That they nor either of them Know or Believe, that Sir Edw. Fitton did make his Will in Writing, in the Bill mentioned, pretended to bear date, etc. Which is a plain denial of it, and that the Earl took it to be so, is as plain by his endeavouring to prove the Will in the Cause.  
The 3d Allegation in the Paper is, A pretended Answer to that which ever was and ever will be required in all Courts of Law and Equity, That the Plaintiff must make out his own Title, before he be admitted to controvert the Title of the Defendant, who is in possession. And therefore the Earl's Title being a Title at Law under the Will, which was devised, he ought to have made out that Title at Law, before he should have been admitted to controvert the Deed-Poll, which was part of the Defendant's Title.  
The next thing is, A cunning Insinuation, as if to assert the Deed-Poll were a Reflection on the Judgements of the House of Lords, given upon the Earl's complaint against Fitton and Granger about the Libel; which is a mere Fallacy, for that Paper might be justly censured as a Libel, and the publishing of it as a Crime, tho' every word of it was true, because it was not asserted in a legal Course. And it is most true, that the Verdict was given upon Granger's Evidence, and upon that of his Servants or Companions, who swore what Granger told them.  

In Answer to the pretended Circumstances, to prove the FORGERY;  
1. There was no occasion to produce the Deed-Poll at any of the Trials, with the Coheirs, because Fitton's Title was under the Settlement, which they never pretended to be revoked.  
2. There was no cause to produce it upon the Marriage-Treaty, for Mr. Fitton's Wife's Relations looked on his Title as undoubted, he being in possession upon three Judgements at Law, so that no Deeds at all were produced, but the Marriage took effect upon Articles.  
3. William Jolliffe, Esq a Gentleman of Quality and undoubted Reputation, and divers others, proved, That they saw the Deed-Poll some years before the time that Granger swore he forged it.  
4. As to the pretence, That Fitton's Father knew nothing of the time, 'tis false, and affirmed without proof.  
5. The Witnesses to the Deed-Poll, Rich. Davenport, Esq Tho. Smalwood, and Edw. Barwick, Gent. were persons of such Credit, that the Earl never went about to impeach it. They, upon their Examination in the Cause in Chancery, swore, That they were present, and saw Sir Edw. Fitton Seal and Deliver, as his Act and Deed, the said Deed then shown to them, and that their Names endorsed on the Deed was their proper Handwriting. Now 'tis not probable, that Witnesses Names, who were all living, and strangers to Fitton, should be put to a Deed, supposed to be forged twenty years after the pretended Date.  
6. 'Tis not at all strange, that they should not on the sudden recollect the time and place of executing the Deed, it being after 20 Years, and they having been Witnesses to divers Deeds sealed by Sir Edw. Fitton.  
8. All the three Witnesses did afterwards recollect themselves, and frequently in their Life-time, and severally on their Deathbeds, declared, they perfectly remembered the Time and the precise Place where the Deed was sealed, viz. In the Compass-Window in the Hall in Gawsworth- house. Therefore let any Man that can believe that Mr. Davenport asked Pardon for swearing that he was a Witness to the Executing the Deed, when he died affirming it.  
9 As to the nature of Granger's Evidence, If it were true, he must be a great Villain, and guilty of Forgery, and 'tis considerable what Credit he ought to have who swears himself at that instant to deserve none. And Granger himself, from the time of that Trial till his Death, which was very lately, owned, That he never saw Fitton till the Morning when the Trial was had, and that one was then employed to show him Fitton, as he came into Westminster-hall. And at his Death confessed, That of all the Villainies of his Life, that which troubled him most was the wrong he had done Fitton, in swearing he forged the Deed-Poll, of which there are many Witnesses beyond all exception. And if Granger could deserve Credit, in behalf of the Earl, after he had owned himself guilty of Forgery, he may be allowed to Deserve as much Credit, in behalf of Fitton, after he had been guilty of Perjury; Especially when the very persons concerned in suborning Granger, and who paid him for it, confess their knowledge of the Fact.  
10. As to what the Answer call an Evidence from the nature of the thing that it was improbable Sir Edw. Fitton, who was married, and in a possibility of having Children, should release his Power of Revocation. It is to be observed, That Sir Edward continued Tenant in Tail after the Release, and so might cut off the Remainders by a Recovery, if he had Issue; but 'tis probable, it was done to prevent any sudden act he might be prevailed upon to do, to the prejudice of his Heirmale, by the Importunity of his Sisters, who were his Heirs; and also to establish and strengthen his Settlement, (the Times growing ill, and he being about to enter into the War) which would have signified nothing, as to the saving his Estate in his Family, if he had had a power to revoke it.   
In Answer to the fifth Objection, 'tis plain, the Possession, and Deeds and Account of the Profits, were Decreed before any Trial was had upon the Will, and before the Trial which the Chancery itself thought fit to allow, which was plainly before the Cause was Determined. 'Tis also evident, that the Deed was at first sent with prejudice to be Tried, for it was called a pretended Deed.  
Nothing can be more frivolous than the sixth Allegation, that the Right of Inheritance was not touched, but only the Person bound by the Decree. For all Deeds were taken from Mr. Fitton, together with the Possession, and the Deed-Poll Canceled, and he Decreed to have no farther Trial, and he that has no Remedy, has no Right, or at least his Right can do him no good.  
Whether the Court of Chancery has exceeded their Power, is now the Question before the Lords; and therefore to draw Arguments from the Judgement of the Lord Chancellor or Lord Keeper, is begging the Question, and is indeed to make an Argument: Which if it have any force at all, will indifferently serve against all Appeals to the Lords, the Jurisdiction of this Great Court being founded upon a supposition that Chancellors and Keepers may mistake. Besides, the now Lord Keeper, being prevented by a Plea and Demurrer, could never look into the Proofs in the Cause.  
That the Decree is larger than the Plaintiffs Petition will be obvious to any Person who looks on both, nothing is prayed, but to set aside the Lease, and to be at Liberty to examine Witnesses to the Will. But the Decree is for the Possession, for an Account of Profits, for Delivering up and Vacating Deeds, and does exclude the Defendant from Trying his Right at Law for the future.  
The pretended Answer divides the Proofs of the Will into three Heads.  
As to the first, which mentions Sir Edward's Intention, to settle his Estate on the Earl of Macclesfield, Mr. Manwairing, the first Person named, had for many Years together been in Suit; which Mr. Fitton, as one of the Coheirs of Sir Edward, and therefore could not believe there was a Will. And Sir John Trevor, Mr. Davenport, and other Persons of undoubted Credit, did fully prove in the Cause, that Sir Edward did ever intent to keep the Estate in the Name, and to settle it on William Fitton, and sent for him out of Ireland for that purpose, and declared, that rather than a Fitton should not have it, he would leave it to Ned Fitton the Bang-beggar. Nor could Sir Edward Fitton conceive any prejudice against William Fitton, because he was engaged in the Irish or English Rebellion, since'tis utterly false, that he was engaged in either, being well known to be a Gentleman of very Loyal Principles. And Philip Pritchard, Esq Ralph Jamon and Thomas Cowley, William Sweetenham, Edmund Barwick, Edward Gardiner and John Snelson prove, that when Sir Edward Fitton, upon his Deathbed, was solicited by Earl Rivers and Mr. Davenport, to settle his Estate upon the Lord Gerrard, he absolutely refused it. And John Cowley and another, proves, that when the Earl of Dorset, and Earl Rivers at Oxford, at several times, about three Months before his Death, importuned Sir Edward Fitton, to settle his Estate on the Lord Gerrard; he made answer, he could not do it, having settled it before on the Fittens: Which is, in effect, a proof that Sir Edward Fitton owned he had Released his Power of Revocation.  
As to the second Head, the Witnesses, who spoke positively to the Will, were two, Dr. Smallwood and Holinshed.  
Smallwood being Examined as a Witness, in a Cause in Chancery, between the Coheirs and Mr. Fitton, did Depose, that he knew not of any Settlement made by Sir Edward Fitton, by Deed, Will, or otherwise; which Oath of his must be false, if he had at that time the Will in his Doublet, where he pretended to have carried it seventeen Years.  
2. Whereas (according to the Settlement) Edward, the Eldest Son of William Fitton, at his Age of fourteen Years, tendered himself to marry the Lord Brereton's Daughter; Smallwood being then his Domestic Chaplain, persuaded the Lord Brereton to marry his Daughter to him, which he could not do, without the basest Infidelity, if he knew the Estate was given away from the Fittens.  
As to Holinshed, he was the Person who treated a Marriage between Edward, the Eldest Son of William Fitton, and the Daughter of William Jolliff, Esq (which was prevented by Edward's Death) and who after treated a Marriage between the Petitioner and the Daughter of Thomas Jolliff, Esq and upon both those Treaties, he constantly affirmed the Title of the Fittens under the Settlement.  
2. After the Marritge had taken effect, he pressed the Petitioner for a Lease of a Farm, part of the Lands in question, and offered a considerable Fine for such Lease, which he would not have done, if he knew the Petitioner had no Title, and he often affirmed that he was present when Earl Rivers pressed Sir Edward Fitton, to settle his Estate on the Plaintiff; which he refused.  
He also advised others to renew their Leases from Mr. Fitton, which they did thereupon.  
And notwithstanding, it is alleged with so much assurance, that the Will was clearly Proved at the Trial at Chester, Sir Job Charlton (before whom the Cause was Tried) directed the Jury that they ought to have no regard to Hollinshead's Testimony, as a Person not credible, and that the only Evidence for the Will was Dr. Smallwood, if they did believe him.  
As to the rest of the Witnesses, who speak to Hollingshead's Report, their Testimony falls together with Hollingsheads.  
'Tis true, there was an Information of Perjury Exhibited against Smallwood and Holinshed, but Mr. Fittens most material Witnesses, being then beyond Sea, when the Cause was to be Tried, and the Court refusing to put off the Trial, no Evidence at all was given, and the Defendants acquitted of course.  
As to that Objection, which may at first seem plausible, that it will be a hardship upon the Earl, to come to a Trial after so long a time, if it be examined, it will appear to have to weight in it. For the Question being upon the reality of the Will, and the Earl's Witnesses, having been all Examined, their Depositions remain for his advantage, and they cannot be cross-examined by the Court, which they might have been, if they were yet alive, and that is only to the disadvantage of Mr. Fitton.  
There is no time of limitation fixed in case of an Appeal from an Erroneous Decree. In this Case the Plaintiff and Defendant are still living: Mr. Fitton has been Prisoner, almost ever since the Decree, but has made Entries and Claims on Record from time to time, though under a disability, not only to Prosecute this Suit, but another Suit upon a Mortgage of part of the Lands in question, which he might have done, (if able) at a much less charge than bring on this Cause.  
The Trial had at Chester is much insisted on, but if the Fact were stated, would have little weight with it.  
Mr. Fitton was then a Prisoner, the Sessions appointed in Termtime, all the Principal Council below retained by the Earl, and Mr. Fitton could get no Council in London, to leave the Term to go to that Trial; nor could he prevail with divers of his material Witnesses to go down. All which appears, by several Affidavits made in Chancery, before the Trial, and in order to put if off. And at the Trial, he lost the use of several Witnesses who were dead, being not suffered to read their Depositions, because the Bill and Answer in the Cause were forgotten to be brought down, as appears by another Affidavit made in the same Court for a new Trial.