Michael D.Heath-Caldwell M.Arch.

1789

James Caldwell of Nantwich (formerly from Beith) - age 67/68 -father of James Caldwell

Hannah Caldwell (ne Armstrong) 

Margaret Skerrett (ne Caldwell) - 39/40 

Anne Caldwell of Nantwich  -  30/31 

Elizabeth Caldwell (Bessy) of Nantwich - 21/23 - daughters of James Caldwell snrl

Hannah Stamford of Linley Wood - 35/36 - Elizabeth Caldwell's sister 

James Caldwell of Linley Wood – aged 29/30

Elizabeth Caldwell of Linley Wood – aged 34/35 

Hannah Caldwell (later Roscoe) – aged 3/4

Stamford Caldwell – aged 1/2 

Mary Caldwell – baptised 27^th March 1789

James Caldwell correspondence [Could refer to March 1821 when issue raised.]

Draft letter

Newcastle 2^nd February 1789

Sir,

I received yesterday, but not, I must confess, without some surprise, the favour of your letter accompanying the Draft of the Conveyance of the Montpelier Estate.

I cannot persuade myself, but that on a moment’s recollection, both you and Mr Yoxall must be fully satisfied that the insertion of the Covenant to which you object, arose from the question which was started by Mr Beard, relative to the liability of the Purchaser to see to the Application of his purchase money, and not from any difficulty in respect to the execution of the Conveyance by Mr Lawton, which was at that very time, unless [bad?] to be got over, by what you were pleased to call the very liberal, and certainly more voluntary allowance which I agreed to make to him.

I hope that it not be necessary for me to enter into any particulars respecting this disagreeable and long protracted affair; [‘especially’ crossed out] as I could but feel conscious to myself of having acted throughout the whole with candour and openness, and of having discovered, what I really felt, a sincere wish to accommodate both you and Mr Yoxall in every thing that was consistent with my own safety; but if surely never could be imagined for a moment that I would consent to accept doubtful or defective Title, nor can I bring myself to believe that you should either wish or believe me to be capable of doing so very weak and absurd a thing.

When the Contract was entered into with Mr Yoxall, it was as he very well knows and as from my opinion of that gentleman, I am [‘confident’ crossed out] persuaded that he will acknowledge, in general terms, an Agreement [‘in my part’ crossed out] generally per my part to give the price that was fixed [‘and which you have so often declared to be in your opinion an outside one, but, undeniably’ crossed out] in the common principle and presumption of a good [‘Title’ crossed out] one being made out. An abstract of the Title was afterwards delivered [in the commission?] with the price endorsed, many letters written which are now in my possession and promises given to compleat the contract and part of the purchase money received and paid [‘on person confidence and good opinion’ crossed out].

All that passed afterwards [insert unreadable] was as you very well know [‘that it must be’ crossed out] mere matter of accommodation amongst the parties, and in regard to the mention of my acceptance of such a Title as the Trustees could make without the concurrence of Mr Lawton we are certainly meant and understood what could alone at least be meant and understood [anyhow?] the best Title which the Trustees had it in their power to make and not such a one as might [sent their convince?].

That Title I am [nin?] and have all along been ready to accept. I am ready to accept a Conveyance from the Trustee alone on having the parties [pardon?] – applied in payment of Debts mentioned in the Schedule and and [enhancing, entering?] copies of the necessary Deeds with undertakings to produce them delivered.

I am ready to accept a Conveyance from the parties and Mr Lawton, and permit the purchase money to be applied as the parties requested on being satisfied that the money then is a balance due to the Trustees from the Trust Estate more than equal to my portion money and making a Covenant from them to indemnify against any persons claiming [against?] the Trust Deed with the necessary copies of Deeds and undertakings to produce them delivered.

I am ready to set aside [insert line unreadable] any thing that has hitherto passed respecting the Title and to accept it in such a form as shall be recommended to me by any Gentleman of eminence and respectability in the profession or I am ready to file a Bill, or if [‘or if it be more agreeable to’ crossed out] you will file a Bill to put in an answer in the shortest and easiest made possible in order to obtain the Declaration of the Court of Chancery and get the Title and conveyance settled by the Masters.

I as I have already

22^nd March 1789

Mary Caldwell born to James Caldwell of Linley Wood and Elizabeth Caldwell (nee Stamford)

James Caldwell letters [Could refer to March 1821 when issue raised.]

Additional Tracts and Observations stated by Messrs Bate and Yoxall.

For Mr Atherton

25^th July 1789

WR Peake

For JCaldwell

Mr Bate and Mr Yoxall apprehend it necessary to state in the case intended to be laid before Mr Atherton, that the Trust contains in the Deed (a Copy of which is left for his perusal) enables the Trustees to retain or apply the purchase money arising from the sale of the Montpelier Estate; and as there was large sums now due to them from Mr Lawton, they conceive themselves warranted to retain the purchase money towards satisfaction of their Debts.

That all the debts mentioned in the Deed, as well at the most considerable of those that are specified in the Schedule, have been discharged by the Trustees, and the remainder of those debts are secured by the joint Bond of Mr Lawton and Trustees.

That the Covenant for quiet enjoyment against Mr Lawton’s creditors, whose Debts are enumerated in the Trust Deed, was introduced in the Trustees apprehension, to supply the want of Mr Lawton’s concurrence; but as he will join in the Conveyance to Mr Caldwell, that Covenant might not be expected.

That the purchase money being engaged to discharge a Debt contracted by the Trustees in consequence of their engagements with Mr Lawton cannot be now applied in exoneration of the Debts scheduled upon the Deed of Trust.

That upon the 7^th November 1771 Mr Lawton executed a Warrant of Attorney for confessing judgment to the Trustees for £1,000, which was entered up in or about Easter Term 1780, on which a [ffisgge?] was issued, but no further proceedings were taken under it.

That the Trust Deed contain no Covenant for the Title except for further expenses, and it is a joint rule, that Trustees, in cases like the present, ought to Covenant only that they have done no Act to incumber.

That no part of the scheduled Debts are a specific Lien in themselves on the Trust Estate (abstracted from the Deed of Trust) and become such only by the Trust, and therefore they must be discharged on the Terms of it.

That the Decree in the case of Lloyd and Baldwin was a specific Lien, and if a Decree had been obtained for payment of Mr Lawton’s Debts (which would have had the same effect as a Judgment) in such case it would have been incumbent on the Purchaser to see his purchase money applied in discharge of Debts of that quality; but that the present schedule of Debts, being only Bond Debts, do not effect the Estate or the Purchase of it.

That the case of Lloyd and Baldwin, though founded on just principles, is not applicable to the subject matter, because it can’t here be said that the Trustees have changed, altered, or lessened the security of the Creditors or reversed the order of things, for in receiving the money arising from sale of the Estate, they are forwarding and executing the Trust.

That if Mr Lawton had sold this Estate instead of conveying it to the Trustees, and had dissipated the money instead of applying it for the honest purpose of paying his Debts, Creditors of the scheduled description could not have [reverted?] for satisfaction of the estate, or to the purchase of it, even if the purchaser had notice of such Debts.

That as by the Trust Deed only those Debts are become Liens on this Estate, if the Creditors are entitled to a satisfaction out of the money arising from the sale of it, they must submit to the Terms prescribed by the Deed, and the risk, if any, if imposes; and that the purchaser is not liable to the creditors for any misapplication of it, any more than he would have been responsible for the improper use of it by Mr Lawton, in case he had sold the estate before the executors of the Deed of Trust.

That if the usual Clause directing that the [Rect?] of the Trustees shall discharge the purchaser, will not indemnify him, it has been in vain employed by Conveyers; if it has no effect in such cases by inserting it, it becomes a trap. In case of scheduled Debts it is necessary, for where the Debts are not schedule and the purchaser has no notice, he may safely pay the purchase money into the hands of the Trustees, and submit it to their application.

That the annuity of £100 stated in the Deed of Trust to be granted by Mr Lawton to Mr Broomhead has been assigned to Mr Henry Tomkinson and Mr George Garnett, who regularly received it out of the Rents of Mr Lawtons’s settled Estates.

That the other Annuities of £50 and £100 granted to Mr Broomhead and Mr Biggs, and which have been transferred by them to Messrs Gagley and Baker, X appear to be secured only by Bonds and Judgments; and for the arrears[?] of those Annuities execution was some ago taken out against Mr Lawton’s person, and he is now in custody in the suit of these Annuitants.

X – This fact should be ascertained in the Trust Deed that are called Rent Charges.

James Caldwell letters.

Draft Release of a Messuage and Tenement Lands and Heredits called Montpelier situate near Talk on the Hill in the County of Stafford.
in Concern of £670

[‘Make a fair copy of the Draft for perusal’ crossed out]

Copied T.T.

Messrs Bate and Yoxall Trustees for Sale of part of the Estate of John Lawton Esq and then John Lawton.

To [‘Mr John Beckett’ crossed out] Mr James Caldwell

Note,

Concerning purchase of Linley Wood, then called Montpelier and other lands of Mr John Lawton – and Messrs Charles and H-  and

Documents relating to further purchases in Alsager etc etc.

Tale

Mr James Caldwell having entered into a Contract with Messrs Bate and Yoxall, the Trustees named in the Deed of Trust, a Copy of which is left herewith, for purchase of the Estate therein mentioned Montpelier, an abstract of the Title was delivered upon the perusal of which the following opinions were given by the late Mr Beard.

Upon perusal of this Abstract, I see that the Deeds of Lease and Release of 24 and 25^th March 1767 being the Conveyance from Rowley, Kent and Grandson and Heir at Law of Hugh Rowley and his Mortgages to William Bate from whom Mr Lawton purchased are wanting or are the Deeds of Lease and Release of 15^th 16^th October 1768 being the Mortgage from William Bate and his Trustees to Esther Myott, who afterwards intermarried with John Gallimore; neither does it appear from anything here stated that Mrs Lawton hat done any Act to be her Dower of the Estate intended to be purchased.

The Articles of the 24^th January 1770 must be produced to see whether any such Act has been done, if these objections are answered, I see nothing to prevent a good Title from being made to a purchaser. A copy of the Trust deed must be taken and a Covenant to produce it, and it would be desirable that Mrs Lawton should join in the Conveyance even if there appears no necessity for Mr Lawton’s concurrence.

William Beard, NewcastleFeb 20^th 1788

It being doubtful whether Mr Lawton would join in a Conveyance of the estate, the following queries were afterwards put to Mr Beard.

In case copies should be procured of the Deeds of the 24^th and 25^th March 1767, the 15^th and 16^th October 1768 the Articles of the 24^th January 1770, and a purchaser should be satisfied in respect to Mrs Lawton’ Dower may a conveyance be safely accepted from the Trustees alone without the concurrence of Mr Lawton?

I am of opinion it may, but I should if possible recommend Covenant from Bate or the Trustee to produce the above Deeds. If a Schedule of Debts is annexed to the Trust Deed, the purchaser should look to the application of his purchase money notwithstanding the Clause in the Deed that the receipt of the Trustee shall be a discharge to the purchaser. William Beard. Newcastle16^th June 1788

The purchaser being afterwards satisfied in respect to the Deed noticed in Mr Beard’s Opinion, proposed, in order to prevent [five?] “trouble, to give Mr Lawton 30 Guineas over and above the purchase money in case he and Mrs Lawton would join in the Conveyance and levy a fine; and to accept the Title, on having a Covenant from the Trustees (in whose hands the whole of Mr Lawton’s affairs were) to indemnify against Mr Lawton’s Creditors or any person claiming under the Trust Deed.

Understanding this proposal to be approved of and acquiesced in by all parties, Mr Caldwell directed the Draft of the Conveyance left herewith, to be prepared, which, together with several letters that had passed in the course of the business, being laid before Mr Watson, he gave the Opinion following.

Reading as I have with much pleasure the letters of Mr Caldwell, an accomplished Gentleman (at least judging from the letters I am brought to think so) I should apprehend we may safely refer to his own candour and judgment the reasons hereafter offered against his requisitions.

A Trustee having nothing but his labour for his pains, can’t in any degree of Justice be subjected to risqué or be made accountable for the actions or conduct of other men. If it were not so, who prudently would engage in such Trusts, however necessary for the accommodation of Society.

Had Mr B been now living I should have had less reluctance in giving the Opinion following – think that the power given to the Trustees ( expressly exempting the purchaser from the application and consequences) to receive and apply the Trust money notwithstanding the Schedule of Debts (the Schedule in part being made for the information of the Trustees) is sufficient to enable them to discharge the purchaser and to render him unaccountable to the Creditors.

I admit it is a general Rule that if the Debts are Scheduled, that the purchaser is to look to the application having notice of the Debts but otherwise as to unscheduled Debts. Not to obviate the mischief of the former this power was at first prepared by some ingenious conveyance of no very late period and has ever since been used by modern and more improved professions of the science.

The difficulties and expenses attending the Application by the purchaser are to obvious to observe; but observe I must to prevent these difficulties and their expenses such Authorities are in a great measure (I know there are many more reasons for ‘em) given. By the Deed of Trust it is admitted all the Debts become a lien on the Estate, but if anterior to the Deed they were not so they can effect the Estate only on the terms and under the conditions of the Instrument itself, which directs that the Trustees shall discharge them by the money arising by the sale of the Trust Estates and directs the purchasers to pay it to them accordingly. I have not the Schedule before me and of course can’t judge of the quality of the Debt.

J Watson Lowe

20^th March 1789

I have made an Observation in the margin which relates to Mr Caldwell

I flatter myself will give him no offence as an officious service. J.W.

N3. Mr Atherton will please to observe, that the Covenant from the Trustees to indemnify against the Creditors and – Deed was introduced into the Draft, merely in consequence of what Mr Caldwell understood to be the private agreement of the parties before mentioned, and not from any idea generally of Trustees entering into personal Covenants; which circumstance does not seem to have been explained to Mr Watson, the Trustees now – were only to enter into this Covenant, in case Mr Lawton would not join in the Conveyance.

 There being a contradiction between the opinions of Mr Beard and Mr Watson, particularly as to the liability of the purchaser to see to the application of his purchase money, a copy of the Trust Deed accompanied with the following queries, was sent up to town, and laid by a friend of the purchaser before Mr Holliday, who gave the Opinion also following.

You will please to advise the purchaser whether he may safely pay his purchase money to Messrs Bate and Yoxall and accept the Title under the Trust Deed; or whether, as there is a Schedule of Debts he is liable to see to the application of his purchase money, notwithstanding the Clause in the Deed directing that the receipt of the Trustees shall be a sufficient discharge; and whether in case the money be paid to the Trustees, they ought not to give the purchaser their own Covenant in his conveyance to indemnify him against the Creditors or any persons claiming under the Trust Deed.

The Case of Lloyd and Baldwin determined by Lord Hardwicke and reported in 1Veg 173 is an authority in point that Mr Lawton and his Trustees could not among themselves alter the – of the securities to the Creditors, and although it is said that the Trustees may sell the Montpelier Estate without the concurrence or direction of Mr Lawton, yet as there are not full Covenants or any Covenants for the Title to this Estate entered into, so as to run with the Lands, no purchaser will by any advice of mine compleat the purchase without Mr Lawton’s Grant, Release and Confirmation and proper Covenants in support of the Title.

A purchaser is bound to see to the Application of his purchase money in discharge of Scheduled Debts. Yet it does not follow that these were the first liens on the Estate, and in as much as the Lawton family appear on the face of the deed of Trust to have been greatly involved and to have executed many warrants of Attorney to confess judgments I cannot advise the purchaser to proceed further, unless he applies his money in discharge of the old Judgments and takes Assignments of such specialty debts as he shall discharge in the name of a Trustee in Trust to protect the inheritance from puisne or subsequent in ambro.

J. Holliday, Lincoln Inn. 28^th April 1789

If this estate has been mortgaged the Mortgagee must of course be first paid.

J.H.

The Debts mentioned in the Schedule are Bond and simple contract only. There is no Mortgage upon Estate. Search has been made upon the Roll, from the date of Mr Lawton’s purchase Deed of the Montpelier Estate to that of the Trust Deed and the following Judgments appear to have been entered up against Mr Lawton viz., in the Kings Bench one in Hilary Term 1775 ads John Broomhead for £ 1200 Debt and 63^d damages.

Another in Trinity Term 1777 ads Henry Biggs for the like sum.

Another in Michaelmas Term 1777ads Samuel Hooker but no sum specified and another in Trinity Term 1778 ads John Broomhead for £1200 debt and 63^d damages.

One in Exchequer ads Ralph Ratecliffe in p= for 1000l upon Bond and since satisfied by the Trustees. The former are Annuity Creditors only. And Mr Lawton, has been taken in Execution, and is now in prison at the suit of some or other of them.

The Trustees obtained a Warrant of Attorney in 1772 from Mr Lawton to confess Judgment [from?] them, which they entered up in 1777 for £--

The purchaser has been let into possession of the Estate, which he is now improving and -  unwilling to join in the Conveyance, and levy a fine, if the latter be necessary (vid p.2.of the Trusts Deeds)

Under these circumstances Mr Caldwell has proposed, that both the Title and Conveyance should be referred to Mr Atherton to be finally settled by him, and that all parties should be governed by his opinion and advice, to which the Trustees having assented, he will please to direct in what manner this Title ought to be made out, and a Conveyance accepted, after perusing the additional Tracts and Observations made by Messrs Bate and Yoxalland left herewith.

[different handwriting]

I am very much inclined to think the case of Lloyd and Baldwin is not appropriate to the present case, in that extensive sense in which Mr Beard and Mr Holliday have taken it for there it is to be observed, no mention is made of any such a Clause, as in the present Trust Deed, discharging purchasers form the obligation of seeing their purchase money properly applied, and of course, we have not, as I conceive, Lord Hardwicke’s sentiments of the effect of such a Clause in such a Deed with a Schedule of Debts to be discharged under the Trusts of it, annexed thereto.

The case before him was that of a Decree which the subsequent transaction, deviating from the regular order of proceeding under it would have rendered of no effect; and therefore the decision in that case must appear to have been agreeable to the justice and equity of it; but as before observed, the Dictum or Doctrine of Lord Hardwicke to support it, is without any reference to such a Clause as I have been mentioning; so that I think the present may be distinguished from that case; and indeed I cannot suppose so many eminent men of the profession would have adopted a nullity, and which this case must be if Lloyd v Baldwin leans upon the question in the way above contended for.

Consequently I must coincide with Mr Watson’s sentiment as to the operation and effect of this Clause; admitting at the same time (and which his opinion imports) that the purchaser’s indemnity to be derived from the Clause, extends only to such Debts, as were not of themselves a Lien upon the Estate antecedent to the Trust Deed.

But perhaps it might have been unnecessary for me to give an opinion at all upon this point, as the additional facts and observations stated in a paper left herewith may possibly have rendered the above Clause useless, in relation to the purchaser of the premises in question. This there said “that as there are large sums now due  to the Trustees from Mr Lawton, they conceive themselves warranted to retain the purchasers money – the satisfaction of these debts.”

Agreed, provided these Debts were owing at the time of the Trust Deed, or in consequence of the Trustees having out of their own money paid any of the Debts, the payment of which was provided for by the Trust Deed; for in the latter case, they would stand in the place of such Creditors, and most clearly would have right to retain to the amount of the debts they had so discharged: but this should not seem to be the case from the following statement in the papers above referred to “That the Purchase money being engaged to discharge the Debt contracted by the Trustees in consequence of their Engagement with Mr Lawton cannot be now applied in execution of the Debts scheduled upon the Deed of Trust.”

Now if from this I am to understand that the purchase money is to be applied in discharging any of the Debt, then one of the Deeds [of description?] I have just mentioned, then the effect of the clause is discharged in relation to the present purchaser; for though this declaring the Trustees [Red ?] would secure him against this misapplication of his purchase money, supposing he had no Notice thereof, yet having notice (as he now has) I apprehend he would not be entitled to take advantage of such Clause, and consequently he could not be advised to pay his purchase money to the Trustees under these circumstances.

If however, I have misconstrued the above statement in the paper left herewith, still I think this purchase cannot be completed with safety to the purchaser without first advertising to the particular circumstances of this case, and the previous knowledge of some facts, which I have not been able from the papers before me, to make myself perfect master of.

It does not appear when Mr Lawton purchased the premises in question, and therefore the Rent charge of 100 granted to Mr Broomhead may possibly be general words he made chargeable thereon under recitals in Trust Deed Do.17;and consequently its having been uniformly paid out of the settled grant of the Estate does not preclude the necessity of Messrs Tomkinson and Garnett (to whom this Rent Charge is assigned) being made parties to the conveyance to Mr Caldwell.

In the recital of the Trust Deed do: 8: the Annuity of £50 to Mr Broomhead and of £100 to Mr Bigg (and which have been assigned to Messrs Gagley and Baker) are called Rent Charges, therefore it should seem as if they were secured in some other way besides bond and judgment; and if so then Messrs Gagley and Baker should be made parties to the Conveyance; for though Mr Lawton is taken in execution upon the judgment, I apprehend the Annuitants would have a right to discharge for their Annuities or Rent Charges, upon the premises in question, supposing them to be granted thereout.

After what I have said in the outset of this opinion with respect to the extent of the Clause declaring the Trustees [requirements?] &c I need not add that if there are any other judgment or other creditors whose debts were a lien upon the premises prior to the Trust Deed, they will be necessary parties to the conveyance i.e. so many of the first of them, who are unpaid, and when Debts will exhaust the present purchase money.

It is not usual in any case for Trustees to enter into any other Covenant that they have not any act to incumber; nor can they be expected or required to do more in the present case and especially as Mr Lawton is now to be a party to the conveyance.

I am not aware of any other conveyance having occurred in this case which it was incumbent on me to take notice of, but as what I have said may possibly under a different arrangement necessary for the purpose of completing this purchase, I have thought it better not to attempt to settle the [Deed?] of the Conveyance to Mr Caldwell, till the parties have agreed amongst themselves how the purchase money is to be applied, supposing I am right in my conjecture that the intention was not to have applied it in strict conformity to the Trust Deed. In consequence too of what I have said respecting – encumbrances, other parties may be requisite.

Henry Atherton

Line:

20^th August 1789

 James Caldwell letters.

Rough handwriting.

This was occasioned by the general meeting of the Dissenters of this County relative to the Test Act. The resolution which you may have seen in the General Evening part were written by T. Aikins [Atkins?]

A Parody on the Anaereontic Song

Intended to have been sung at the Maids-head November 25, 1789

To the Angel of England who sat in high glee,

The sound Nonconformists addrest a petition

To beg he’d inspire Mother-church them to free

From the Tests that dishonour the holy religion.

My permission you have,

Was the answer he gave,

But such favours as these of the Saints you must crave

And I wish you success in attempting to yoke

The palm of Religion with Liberty’s oak.

The news thro’ Empyreum incontinent flew

When old Peter pretended to give himself airs:

If these mortals are suffered their scheme to pursue

There can’t be a hierarchy left below stairs

Hark already I hear

With terrified ear

The Church is in danger! New Cromwells are near

For all the Dissenters are learning to yoke

The palm of Religion with Liberty’s oak.

Thy creed, Athanasius, these men disavow;

And the thirty-nine articles read with a sneer.

The Episcopal bench will be tenantless now;

And the biforked mitre a fools-cap appear.

My spirit, no fear on’t,

Shall soon do its errand.

I’ll strait excommunicate Priestly, I warrant,

And trim his hot crew for thus daring to yoke

The palm of Religion with Liberty’s oak.

The carrot-pate Andrew then said, “Pry thee cease,

Thou high-priest of the Saints, such vile vociferation.

Presbyterians in England ‘tis true you may tease.

But in Scotland you cannot deny them salvation,

There, over each head,

Is a covenant spread

And my sons from your bother no mischief shall dread

But at leisure proceed in contriving to yoke

The palm of Religion with Liberty’s oak”

Next Patrick arose with his visible phiz

“By my shoul, brave St.Andrew, I’m all of your mind

St.George is a fool if he care for this Zuis,

My Test-act I gave long ago to the wind

Come St.George, be not jealous

Of these honest fellows

Low Churchmen are safer than those who are zealous

A bigoted Clergy’s unwilling to yoke

The palm of Religion with Liberty’s oak.

My lads,” quoth St. George, “all the while I was young

St.Peter and I remain’d very good friends

Tis true we’d a quarrel two cent’ries agone

But by pleasing him now, I shall make him amends

When the Pope was in fashion,

I laught at the passion

Now that others dessert him, I yearn with compassion

And like him will oppose ev’ry sect, that would yoke

The palm of Religion with Liberty’s oak.”

However, my friends let us join hand in hand

Preserve unanimity tol’rance and love;

‘Tis our to support what’s so happily plann’d;

Perseverance will win tho’ the great disapprove.

While thus we agree,

Our toast let it be;

May every fashion of Worship be free;

And Denominations all study to yoke

The palm of Religion with Liberty’s oak.”