The following copious extracts from Rush's pamphlet (Rush, J.B. 1848. Report of, and Comments on, a Trial at Norwich Assizes, March 1848, for Breaches of Covenant, said to be committed by J.B. Rush, and a case, Jermy v. Jermy, or who is the Rightful Owner of Stanfield Hall and Felmingham Estates.) gives Rush's view of Jermy's action against him. These extracts are published in Appendix V of Teignmouth Shore's Trial of James Blomfield Rush.
"This was an action for breach of covenant, taken by Mr. Jermy, the Recorder of Norwich, against the defendant, Mr. Rush, for breaches of covenants in a lease of certain lands on Stanfield, Wymondham, and adjoining parishes, that has been let at a corn rent, as Mr. Jermy was desirous it should be properly cultivated, such rent being to vary from £400 to £600, taking the averages of wheat from 18s. per coomb to 52s. per coomb as the guide for fixing the rent, and the defendant was to be allowed four years to bring it into proper culture. The lease was for eleven years, and was to expire in 1848, whereas the defendant had abandoned it in 1847, after having thrashed out nearly all his corn, and sold all his stock and horses off, leaving nothing but a few fowls and one pig to satisfy the plaintiff, who was obliged to have recourse to this action for compensation in leaving it in the manner it was. He would show that the rotation of cropping had not been followed up;
The defendant had made a composition with his creditors; he had not left the gates in repair, and had carted away hay and turnips from the lands, contrary to the covenants of the lease.
Let any one look at the above, and then consider the baseness and villainy in bringing an action against any one under such circumstances: the fields are all there, . . and having known the money I have expended for artificial manure, &c., and after having let his farms for upwards of £20 a year more than the farms were let to me when wheat was 6s. per quarter less than it was when the rent was set to me in 1858, and reserving to himself 79a. 2r. 16p. that is not less at present; such conduct was never before heard of, not even In Ireland, and I am determined it shall be known, for the sake of my sons, and other young people who may be led away by such rascals, and embark all their property on other people's lands; and here I warn my sons never to take larger business in hand than they have capital for, it has been the ruin of me and of hundreds besides; for even if the villain had behaved as he ought to have done, to have acted with common honesty, I should never have done myself much good, not half so much as I should if I had remained at Dalling, where I should have been complete master of what I had in hand, and also have increased my business as auctioneer and valuer, which no one had a better opportunity than I had, and no one ever had the practice I had for the time I was in it; but engaging so much business, and lying myself bare of money, and not keeping my payments up as I ought, was the ruin of me as well as hundreds of others similarly situated; but after all, this is no reason I should now be ruined in character by this villain, as well as my property being all swallowed up by him. He has done all he can to vilify me in every way, . . . and is well known to all those who have had any conversation with him about me, by representing me to have money, whereas he knows I have none; and I sometimes think when I had so much money by me last Michaelmas, if instead of giving it up to pay my creditors, I had kept it, and been as great a rogue as he has represented me to be, I should have been thought more of, and not shunned by some of those who have always professed so much friendship; but be that as it may, I hope the time is coming when such will not be the opinion, and that God Almighty will stand my friend, and I shall be able to show my children, that although I have to begin the world as it were again, without a sixpence I can call my own, that I shall get through much better than if I had kept the money, rather than given it up to my creditors, at least I think so, and I can safely say, and call God to be my judge, under all my trials I have gone through with, I have not been so happy for years as I am now, for ever since 1858 I have always been in debt, and particularly after the hailstorm; although the Committee acted very liberal to me, there is no one knows how I suffered; I had not the least idea of it myself at first, but I have no hesitation in saying that I could easily prove to any one I lost at least £1700 by that dreadful storm, but I have always said He that took it away can replace it, and I do not doubt for a moment, nor even has, but He will restore it when He sees fit, and my firm belief is that everything at present has turned out for the best. This fellow, Jermy, has no right to this Stanfield property; he knows it, and he knows I know it as well; his whole conduct in keeping possession and taking the name of Jermy, and his behaviour to those poor people who have a right to it, has been most villainous and disgraceful to any man who can have any pretensions to respectability, and which I should be most happy to prove when called on to do so, all of which would probably never have been brought to light if this fellow had only acted with common honesty, for I should not have taken the trouble to have gone over the multiplicity of papers that has been put into my hands on the subject; but I have now done so, and in concluding the account of the trial, will follow a case drawn up so as to show who is the real owner of the Stanfield estate and the means this fellow has taken to keep the real owner out of possession. Why I have published it is that some one who has money may come forward and see that justice may be done to this Mr. Jermy, who is the owner, and who is kept out of possession for want of the means to employ counsel, and to have the matter brought to trial. I have got lots of other documents that could be referred to, and perhaps some of them are of more importance than those mentioned in the ease, as I am not lawyer enough to know this, but I am quite sure that the case as I have got it out is a good one, without any other, and I do hope some one will come forward and oust this fellow, who has not half so much right to the property as I have, much more the right heir, if it was properly brought forward; and that is why, I think, everything has turned out for the best, if those poor people should be put into possession through any steps I have now taken, and am about to take, they will have it in their power to make all right with me as far as having lost my property on the estate, and pay others liberally for assisting me; it has never been brought forward in the proper manner nor in the proper Court, nor have the parties had documents proper to have it brought to trial; everything is now in readiness, except the cash necessary to bring it to trial; such being obtained, I have not the least doubt but he would be bundled out, and that very quickly, as he has not the least pretension to hold it if properly brought forward, and he knows it as well; and I am not sure he has not been trying to ruin me that I might not find the money to turn him out, but God only knows; there is one thing certain, if there is any truth in the Bible, such villainy is sure to be overtaken, and that when it may be least expected; but as I have said before, all these matters I leave in His hands, being sure that judgment will come sooner or later.
The jury, as we know, returned a verdict for the plaintiff in all the pleas, estimating the gross damage at £420.
"The following is the case Jermy v. Jermy that I have alluded to. I have many other documents relating to the same that will, perhaps, be of much more importance than those mentioned in the case; whoever takes it up for the right heir is quite welcome to make use of them in getting out their case for counsel, and any assistance I can render them is at their service.
CASE - Jermy v. Jermy
By Indenture of Lease and Release, dated the 4th and 5th October, 1751, the Release being made between William Jermy, of Bayfield, in the county of Norfolk, Esq., of the first part; Jacob Preston, Esq., and Frances Preston, spinster, of the second part; Richard Fuller and Samuel Horne, of the third part; Isaac Preston and Thomas Preston, of the fourth part -
It was witnessed that, in consideration of a marriage then intended and afterwards solemnized between the said William Jermy and Frances Preston, and for other considerations, the said William Jermy did convey unto the said Richard Fuller and Samuel Horne, and their heirs, among other hereditaments situate, lying, and being in Wymondham, Hethel, Ketteringham, Hethersett, Wrenningham, East Carlton, Suffield, Felmingham, Gunton, and North Walsham, in the county of Norfolk, &c., all that farmhouse, outhouses, barns, edifices, buildings, stables, with all the lands, meadows, pastures, fieldings, woods, tenements, casements, privileges, profits, rights, and appurtenances thereto belonging, or therewith used, occupied, possessed, or enjoyed, situate and lying in Bayfield, Glanford, Leatherinsett, Saxlingham, or in some or one of them, or in some town, parish, or place to them or some one of them next adjacent, then late in the tenure, use, possession, or occupation of Richard Williams, his assignees or assigns, under tenement or under at and under the yearly rent of £260.
And also all and singular other the farms, messuages, lands, tenements, and hereditaments whatsoever of the said William Jermy in Bayfield, Glanford, and Leatherinsett, or any town or towns or places to them or any of them near and adjacent, or so much thereof as be freehold or copyhold, except all manors, lordships, manor rights, and manor rents, advowsons, and rights of patronage, and except the capital messuage called Bayfield Hall, with the gardens and plantations thereto belonging, and not then used as a farm by the said Richard Williams or his under tenants.
"To hold unto the said Richard Fuller and Samuel Home, and their heirs, from and after the said marriage"
"To the use of the said William Jermy for life, with remainder after the termination of that estate:
"To the use of the said Richard Fuller and Samuel Home, and their heirs, during the life of the said William Jermy, upon trust to support the contingent remainders with remainder after the death of the said William Jermy:
"To the use of the said Isaac Preston and Thomas Preston, their executors, administrators, and assigns, for 500 years, to commence and be computed from the decease of the said William Jermy, with remainder after the determination of the said term, or in case the same should not arise by the decease of the said Frances in the lifetime of the said William Jermy without issue then living by her and subject thereto:
"To the use of the first and other sons of the said William Jermy on the body of the said Frances Preston to be begotten, successively in tail male, with remainder:
"To the use of all and every the daughter and daughters of the said William Jermy on the body of the said Frances Preston to be begotten, as tenants in common in tail, with remainder in default of such issue: then
"To the use of the said William Jermy, his heirs and assigns for ever."
And it was by the said Indenture of Release declared that the said term of 500 years was limited to the said Isaac Preston and Thomas Preston upon trust that, in case the said Frances Preston should survive the said William Jermy, they the said Isaac Preston and Thomas Preston, and the survivors of them, his executors and administrators, should, by and out of the yearly and other rents, issues and profits of the premises so limited to them, raise and pay the yearly sum of £400 unto the said Frances Preston during her life, in satisfaction of her dower; and upon trust that they should from time to time, after satisfaction of the said annual sum of £400, permit and suffer the said premises, or the residue of the said rents and profits, to be had and received by the sons and daughters of the said William Jermy, who thereby or otherwise might become entitled to the immediate inheritance thereof.
And upon further trust that, if there should be no issue of the said marriage living at the decease of the said William Jermy, or if all the issue living at his decease should die during the life of the said Frances Preston, then the said Isaac Preston and Thomas Preston, their executors and administrators, should, with all convenient speed after the decease of the said William Jermy without issue, or after the decease of such issue in the lifetime of the said Frances Preston, by and out of the rents and profits of the said premises, or by mortgage, demise, sale or disposition thereof, or any part thereof, for all or any part of the said term, or by all or any of the said ways and means, or by any other ways and means, levy, raise, and pay the sum of £5000, at such time and times, and in such share and proportions, and to such person or persons as the said Frances Preston by any deed or deeds, writing or writings, or by her last will (whether she be sole or covert) executed in the presence of two or more credible witnesses, should give, devise, appoint, limit, and order, and for want thereof.
"Then in trust to raise and pay the sum of £5000 her executors and administrators."
And it was by the said Indenture of Release further provided, that, from the decease of the said Frances Preston, all the arrears of the said yearly sum of £400, and the charges of the trust, should be paid if the issue of the said William Jermy and Frances Preston then living, or if there should be no such issue then living, as well upon payment of the said arrears as the aforesaid £5000, by the person or persons who should be entitled to the inheritance or immediate reversion and remainder of the said premises, together with interest for the same for one year next after the decease of the said William Jermy and failure of issue, and the costs and expenses of the said trusts, the said terms of 500 years should cease and be void.
And the said William Jermy did, by the said Indenture of Release, covenant with the said Richard Fuller and Samuel Horne, that he the said William Jermy would, at their request, surrender the copyhold part of the said premises -
To the use of the said Richard Fuller and Samuel Horne, and their heirs, upon the trusts aforesaid; and that, until such surrender or surrenders, he the said William Jermy and his heirs would stand seized of the said copyhold premises in trust for the benefit of such person or persons, and should from time to time permit the same to be by them possessed and enjoyed, along with and in such manner, and for such estates, intents, and purposes, as concerning the said freehold premises are therein limited and declared, and as the same would have gone and been enjoyed by virtue of the limitation aforesaid in case the same had been freehold, and as near thereto as the tenure thereof would admit.
1751, December 12th, the said William Jermy duly made and executed his last will and testament; and thereby, after reciting that by virtue of the said marriage settlement the reversion or remainder in fee simple of and in the freehold hereditaments therein mentioned, expectant upon divers particular uses and limitations thereby created for the benefit of him and his wife and the issue between them, stood limited and settled to the use of him and his heirs, and that the reversion or remainder of, and in divers copyhold lands and tenements therein mentioned, expectant on divers particular estates and limitation thereby agreed to be limited thereof for the benefit of him and his wife and the issue between them, was also vested in him and subject to his disposition; and after reciting that be was seized of divers manors, freeholds, messuages, lands, tenements, and hereditaments in fee simple in possession, and that he was seized to him and his heirs of divers copyhold lands, tenements, hereditaments, &c.,
His will was, that if he died without issue living at his death, or born afterwards, then he gave and devised all the said freehold and copyhold messuages, lands, hereditaments, and premises whereof and wherein or to which he was seized in fee simple, in possession or reversion respectively as aforesaid, and all other his freehold and copyhold messuages, lands, tenements, hereditaments, and premises wheresoever and whatsoever, and every of their appurtenances, unto -
"Henry Palmer Watts and Jermy Harcourt, and their heirs, to the several uses for the purposes hereinafter mentioned, viz.:-
"To the use of Frances his wife for her life; and after her decease,
"To the use of Watts and Harcourt, and their heirs, in trust, to preserve the contingent remainders herein, after limited from being defeated or destroyed to bring actions, and to permit his wife to receive the rents during her life; and afterwards,
"To the use of Jacob Preston for his life, and after the termination of his death,
"To the use of Watts and Harcourt, and their heirs, &c., to preserve the contingent remainders,
"To the use of the first son of the said Jacob Preston, lawfully begotten, and the heirs male of such son; and in default of such first son, to the use of the second, third, fourth, fifth, and sixth, and all and every other son, and their heirs male; and in default of each male issue,
"To the use of Thomas Preston, of the city of London, merchant, brother of his said wife, for his life; and after the termination of his death,
"To the use of Watts and Harcourt, and their heirs, during the life of the said Thomas Preston, in trust to preserve contingent remainders; and after the decease of the said Thomas Preston, to the use of the first and other sons of the said Thomas Preston, as tenants in tail male; and for default of such issue, then
"To the use of such male persons of the name of Jermy as should be the nearest related to the testator in blood, and to his heirs and assigns for ever."
And the testator willing that his library of books should be used and enjoyed, but not sold or disposed of by such person or persons who should be entitled to his capital messuage, or mansion-house, at Bayfield, but to go as heir looms, provided by his said will, that such person or persons who should be entitled to the said hereditaments and premises, by virtue of any the said limitations aforesaid, when and as they respectively come into the actual possession of the said hereditaments, or any part thereof, by virtue of any of the limitations aforesaid, and during such time as they respectively should be in possession of the said premises or any part thereof, should take and use and continue to use the surname and bear the arms of him the said William Jermy, and should in all deeds, writings, letters, and other instruments' of writing, be styled and called by the name of Jermy, and set and subscribe and write his and their surname respectively Jermy to all and every such deeds, writings, letters, &c., and should with all convenient speed after they respectively come into the actual possession of the said hereditaments and premises or any part thereof, apply for and endeavour to procure an Act of Parliament to be passed for establishing and confirming the said surname and arms of him the said William Jermy, in and upon him or them and their issue respectively. Inheritably under that his will, and that in default thereof the person or persons neglecting, refusing or disusing to do so, should not have or take any estate, interest, or benefit, from or under or by virtue of that his last will and testament, or any of the limitations therein contained, and in such case the person or persons who by virtue of that his last will should be entitled to take next in remainder after the person' or persons so refusing, neglecting, or disusing, should enter upon, have, and enjoy, the said hereditaments and premises for such estate and estates, and in as full and beneficial manner to all intents and purposes as if the person or persons so neglecting or refusing or disusing, were actually dead. Provided further, and it was his mind and will that such person or persons in remainder who should be entitled by virtue or in consequence of such refusal, neglect, or disuse should take and continue to use and bear the surname and arms of him the said William Jermy in manner and form aforesaid.
The said William Jermy died on the 2lst January, 1752, and his will was proved by his widow, Frances Jermy, on the 17th March following, leaving Ann the wife of John Mallison his heiress at law.
August 18th, 1753.- By an indenture so dated (and also tripartite) made between the said Francis Jermy, Isaac Preston on behalf of his son the said Jacob Preston, a minor, and the said Thomas Preston of the first part, the said John Mallison and Ann his wife of the second part, and the said Henry Palmer Watts and Jermy Harcourt of the third part, after reciting the said will and that the said William Jermy died without issue.
It was witnessed that the said John Mallison and Ann his wife, at the request of the said Francis Jermy, Jacob Preston, and Thomas Preston, did confederate with the said Watts and Harcourt, the trustees to the said will, that they the said John Mallison and Ann his wife would before the end of Hilary Term next levy a fine sur conuzance de droit, &c., of all the manors and hereditaments late of the said William Jermy deceased (except an estate at Pulham, in the said county). And it is thereby declared that the said fine should enure to the several uses declared and expressed in the said will concerning the same except as to the last limitation which could not thereby possibly be confirmed, but was agreed to be left to the construction of law.
And the said John Mallison did by the said indenture tripartite, agree with the said trustees, Watts and Harcourt therein named, that he and his said wife Ann Mallison or her heirs would surrender and release the copyhold part of the said premises to such person or persons, and in such manner as the said trustees should acquire, to the intent that the said copyhold premises should go and be enjoyed according to the said will, except as to the last limitation therein contained.
Michaelmas Term, 27, Geo. II.- A fine sur conuzance de droit come ceo, &c., levied pursuant to the said indenture (tripartite) wherein the said Watts and Harcourt were plaintiffs, and the said John Mallison and Ann his wife were defendants, of the manor of Bayfield, Glanford, and all the other estates, late belonging to the testator William Jermy.
It appears that the object of this arrangement was to bar the ultimate limitation in William Jermy's will, and that Mrs. Mallison the heiress at law (in consequence of being cut off by the late limitation named and expressed in the will of the said testator), with her husband, Mr. Mallison, claimed the Remainder in fee under the supposition that such ultimate limitation might be void.
The copyhold part of the estates not having been surrendered to the testator's will, was taken possession of by the Mallisons, and the aforesaid collusive arrangement was in consequence entered into by the Prestons. The Mallisons and the trustees under the said will agreed that a fine should be levied of all the lands and estates belonging to the testator (except an estate at Pulham, which was given to the Mallisons), and in consideration thereof for Mallison and his wife to surrender the copyhold to be enjoyed according to the tenor of the will of the said testator William Jermy.
The levying of this fine does not it is conceived in any way operate against the contingent claimant who may be entitled to take under the ultimate limitation, viz.- that male persons of the name of Jermy who should be the nearest related in blood to the testator; for the fine ex-facie of itself leaves it decidedly open to the construction of law.
It will be observed that neither of the said parties who levied the said fine had any estate of freehold at the time the fine was levied. It therefore must be in its uses invalid, and may, it is submitted, be at any time set aside by the parties entitled to take under the last limitation of that pleading. Bacon's Abridgment, 1832, Vol viii. pp.647, 68. Shepherd's Touchstone, p. 14, West Symb. No. 2, 13; Doe v. Holmes, p. 3; Wills, 249, Smith v. Packhurst, p. 3; Alk. 141; Row v. Power, 2 N. R. 1 Doe v. Williams; Couper, 621; Carshampton v. Carshampton, Trk., J. B. 567 Doe v. Spencer, 11 East, p. 496.
Isaac Preston (the party on behalf of his son Jacob, a minor to the aforesaid indenture of August, 1755), did afterwards confederate with one Francis Jermy, of North Walsham (an "attorney at law "), to enter into a bargain and sale, and by an indenture dated the 30th April, 1754, enrolled in Chancery, and made between the said Francis Jermy, described as son and heir of Anthony Jermy, of the one part, and the said Isaac Jermy of the other part, reciting that the said will of William Jermy, deceased, and that the said Francis Jermy party thereto was become entitled to the hereditaments devised as aforesaid after determination of the several intermediate estates and remainders by the will devised as being the male person of the name of Jermy nearest related in blood to the testator.
It was witnessed that the said Francis Jermy in consideration of £20 did grant, bargain and sell to the said Isaac Preston, his heirs and assigns, all the manors, messuages, lands, tenements, and hereditaments which were late the estate of the said William Jermy, the testator, whereof or wherein the said Francis Jermy had any estate of inheritance or freehold, situate in Bayfield, Glanford, Leathersett, Saxlingham, Wymondham, Hethersett, Ketteringham, Carlton, Suffield, Felmingham, Gunton, Antingham, Tasburgh, Foncett, or elsewhere, in the county of Norfolk, &c.
This bargain and sale between Isaac Preston and Francis Jermy, the present claimant presumes, was fraudulently got up by the said parties, for the express purpose of defeating the claim of the contingent remainder man, being such male person of the name of Jermy as should be the nearest related to the testator in blood as should really answer that description.
The said Isaac Preston seems, however, to have had great doubts and misgivings that it should be discovered that the said Francis Jermy was not the remainder man in fee answering the above description, for in the following month of September he obtained a similar conveyance of such estate in remainder from another party, as such male person, nearest related to the testator, William Jermy, in blood, viz. John Jermy, of Great Yarmouth, a poor illiterate day labourer, and ancestor of the present claimant, for a similar sum of £20.
And by an indenture of bargain and sale, dated 19th of September, 1754 (enrolled in chancery), reciting the will of the testator, and that the said John Jermy had become entitled to the said remainder so devised as aforesaid, alter the determination of the several intermediate estates and remainders by the said will of the said testator devised as being the male person of the name of Jermy nearest related in blood to the testator.
It is witnessed that the said John Jermy, in consideration of the sum of £20, did grant, bargain, and sell unto the said Isaac Preston, his heirs and assigns, viz. all the manors, messuages, lands, tenements, and hereditaments whereof and wherein the said John Jermy had any estate of inheritance or freehold, situated in Bayfield, Glanford, Stanfield, Tasburgh, Uphall in Boylands, Leathersett, Saxlingham, Wymondham, Hethersett, Ketteringham, Carlton, Suffield, Gunton, Felmingham, Antingham, Pulham, Foncett, all and every other estate in the said county of Norfolk, &c., which were lately the estate of the testator William Jermy, deceased, to hold unto and to the use of the said Isaac Preston, his heirs and assigns for ever.
This purchase from John Jermy, the present claimant, who is his grandson, submits is fraudulent; as well on account of the very inadequate rum of £20 being given as the consideration money for such valuable and estates, as on account of the deed of conveyance having been designedly obtained from an extremely illiterate man, who was in no manner cognisant of the value of the estates, or of his interest therein in remainder, by Isaac Preston, an experienced, educated, and intelligent individual, and a trustee for a term of 500 years, under the marriage settlement of the testator, and who by means thereof and otherwise, had notice of the right be was purchasing, which the illiterate vendor had not.
There is no doubt that John Jermy was the male person nearest related to the testator, William Jermy, in blood, at the time of his death.
The property to inheritance whereof in remainder John Jermy was at the date of sale of his interest therein for £20 entitled, was worth at that time, September, 1754, of very large value, and the prior estates to which his remainder was subject, and upon which it was contingent, were the following only, as the testator, William Jermy, had died without issue in January, 1752, viz.- 1st, the life interest of Frances, his wife, who died in 1791; an estate for life in Jacob Preston, with remainder to his first and other sons in tail male; and an estate for life in Thomas Preston, with remainder to his first and other sons in tail male.
Jacob Preston died in 1778 without issue
Thomas Preston died in 1772 without issue.
So that the contingent remainder was subject to three estates for life and the possibility, or two estates in tail male (neither of which, in fact, ever arose); therefore the contingent remainder of John Jermy, the labourer, must, in 1754, have been worth at least a hundred times £20.
Isaac Preston, the vendor in the deeds of bargain and sale of 30th April and 19th September, 1754, died in 1768, having by his will, dated 25th November, 1764, and executed and attested so as to pass real estate, devised as follows, viz.- "And whereas I am seized of certain contingent remainders in fee and reversionary estates and interests in the several manors, messuages, lands, tenements, and hereditaments, by me already (as I think) settled on my son Jacob and the heirs male of his body, either by the marriage settlement of his mother, or by any voluntary or other settlement, to prevent, as far as I can, any dispute concerning the same, I give and devise all and every the manors, messuages, lands, tenements, and hereditaments, in the said towns hereinbefore mentioned, or elsewhere in the kingdom of England, their appurtenances, and not hereinafter mentioned and devised, or in or by any codicil thereto, to my son Jacob Preston, and the heirs male of his body; and for the want of such issue male, to the children and heirs male of my body successively and in remainder, one after the other, as they shall be in seniority of age and birth; and for want of such issue male of mine or my son Jacob's body, to my brother, Thomas Preston, and the heirs male of his body; and for want of, and in default of such issue to all and every my daughter and daughters, and their heirs, as tenants in common, and not as joint tenants, or to my own right heirs."
A codicil was made by the testator to this will, which did not, however, affect the devises hereinbefore set out.
Jacob Preston and Thomas Preston, the two tenants in tail mentioned in the will of Isaac Preston, are the two tenants for life mentioned in the will of William Jermy and both of them, as before stated, died at the times before mentioned without issue.
Isaac Preston, the testator, had also another son, named Isaac, who ultimately took the estates, which passed under the devise before extracted from the will of his father.
Isaac Preston, the testator, died in 1768, and in 1792, Frances Jermy, the widow; Jacob Jermy, the nephew; and Thomas Preston, the brother; the three tenants for life under the will of William Jermy being then dead, Isaac Preston, the son, suffered a recovery of all the estates devised by the will of William Jermy, with ultimate remainder to such male person of the name of Jermy as should be nearest related to him in blood, with the view of acquiring or cementing an absolute estate of inheritance in them, and died in 1796 without issue, having by his will, dated in July, 1792, and executed so as to pass real estate, entailed, or purported to entail the estates of the late William Jermy upon his, the said last named Isaac Preston's younger brother, the Rev. George Preston, for life, with remainder to his son Isaac Preston, for life, and his son Jermy Preston, with remainder to the heirs male of his body severally and successively.
The Rev. George Preston died in 1837, leaving his son, the present Isaac Preston, surviving, who thereupon took, and has since kept possession of the estates of the late William Jermy.
The said petitioner, Isaac Preston, openly and explicitly avows that he absolutely derives his sole right and title to the said estates and hereditaments expressed in the will of the said William Jermy, and also in virtue of the considerable purchase effected by his grandfather in 1754; and that, in consequence, by his said petition he humbly craves that he may be allowed to bear and carry the name and arms of the testator, William Jermy, under the strict pain of forfeiting the said estates. From this special application to the Crown it decidedly shows and establishes the fact, that his grandfather, his uncle, nor his father, the Rev. George Preston, had ever used or assumed the name of Jermy, or carried the armorial bearing of the said testator, William Jermy; therefore his ancestors had undoubtedly incurred a breach of forfeiture of all or any right which they might have had or assumed.
From the direct evidence already adduced it is clear and manifest that the present possessor, Isaac Preston (alias Jermy), is, as well as his ancestors were, in full knowledge and possession of the contents of the limitations in the will of the said testator, William Jermy; and although the petitioner's uncle, Isaac Preston, immediately after the death of Francis Mitchell, in 1792, suffered a recovery of the estates to defraud the remainder man, who was then called under the will of the testator, still that can be no bar to the present claimant, either at law or equity; for if a purchaser with notice to strengthen his title, levy a fine, &c., and five years were to pass without a claim, would be inoperative, and therefore could be no bar.- Sugden, "Law of Vendors," p. 665.
Under all the foregoing circumstances and decided facts, it is submitted that the present Defendant cannot set up the Statute of Limitation against the party now claiming (viz. Thomas Jermy) under the last limitation of the said will, being the nearest male person of the name of Jermy related to the late testator in blood, seeing that this very will of William Jermy is founded on by him, the said Isaac Jermy as his only title, which can in no manner be adverse from the plaintiff's title; and the third section of the statute 3rd and 4th William IV. excepts wills from its operation:- "any instrument other than a will." And the 20th section of that Act also declares that in cases of fraud no time shall run whilst the fraud remains concealed. Now, the fraud and conspiracy in this instance was not discovered until the year 1838, which were traced out and detected under the following peculiar circumstances, viz. that on the 18th of June, 1838, public notice by the Daily Journals was given of the sale of the extensive and valuable library of books, &c., &c., at Stanfield Hall, by order of Isaac Preston (now Jermy), the administrator to his late father's effects, the Rev. George Preston, which books belonged to the said testator, William Jermy, and were intended by his said will to pass as heir-looms. Amongst the books were discovered two pamphlets; the one entitled "A Narrative of the Disputes between Isaac Preston (who purchased the estates for £20) and John Mitchell, Esq., 1758." The other pamphlet was Isaac Preston's to a libel, entitled "A Narrative of the Disputes."
These two books gave the claimant the first hints of this mysterious and concealed fraud; and on the 7th September, 1858, a notice appeared in the London Gazette, "by Royal authority, for Isaac Preston to use, assume, and bear the name and arms of Jermy in lieu of Preston; and in consequence of that notice a copy of the petition and Royal warrant above referred to was obtained from Herald's College, London; and if it had not been for the said petition to her Majesty, it would have been impossible for the claimant, or any person on his behalf, to have traced out or discovered by any means or diligence how or in what way or manner, or under what title and authority, the Prestons first obtained possession of the estates under the will of the said testator, William Jermy. After a great deal of anxiety, trouble, researches and expense, the two deeds of transfer in 1754, from Francis and John Jermy, were discovered, as well as the pamphlets and other documents before referred to, all of which, it is assumed, decidedly establishes the concealed fraud and conspiracy; and, therefore, if the statute could run at all, it can only commence from the year 1838.
Counsel will please to consider, under all the facts and circumstances of the case, viz.-
1st. Whether the pedigree of the claimant is fully made out and established?
2nd. Whether the devise by the testator, William Jermy, to such male person of the name of Jermy as should be nearest related to him, in blood, would be construed solely to that male person who was then alive at the death of Mrs. Mitchell in 1791, when all the prior limitations under the said will become exhausted? If so,
3rd. Whether the alleged purchases made by Isaac Preston in April and September, 1754, from Francis and John Jermy, or one or other of them, could not be set aside on the ground that they had no power vested in their persons to make such a grant on the one hand, and the inadequacy of the consideration on the other?
4th. Whether the defendant can now legally set up the indenture of bargain and sale (obtained from John Jermy, September, 1754), in consequence of his grandfather, Isaac Preston, having concealed the same in his evidence from the suit in Chancery, and solemnly sworn, December 3rd, 1756, in his answer to the said bill, filed, page 57, in Chancery by Mr. and Mrs. Mitchell; that he, the said Isaac Preston) claims no right to or interest in the said William Jermy's estates on his own account, or any other manner than as a trustee of the term of 500 years save only such right as may be demised to him from or under Mr. Francis Jermy, of North Walsham, deceased?
Answer to the bill, page 57, saith he claims no right to or interest in the said William Jermy's estate, on his own account or any other manner, than as a trustee of the said term of 500 years, save only such right as may be demised to him from or under Mr. Francis Jermy, of North Walsham, deceased.
5th. Whether Isaac Preston's (trustee under the marriage settlement for the term of 500 years) indentures of bargain and sale from Francis and John Jermy were not invalidated when the High Court of Chancery decreed, 25th February, 1762, that the testator's estates should be sold, or sufficient part thereof, to satisfy the dower of the testator's widow?
6th. Whether the alleged purchases by the said Isaac Preston would be considered sufficiently legal by the Ecclesiastical Court to enable him to defeat the ultimate limitation of the said will vested in trustees, and to devise the testator's estates away in fee-simple by his own will in 1764?
Whether Isaac Preston, uncle to the defendant, who suffered a recovery in 1792, and defendant's father, the Rev. George Preston, both of whom, as appears by the said defendant's petition to the Queen, that they, the said Isaac and George Preston, inherited the said estates under his grandfather's will but by virtue of the limitation of the will of the testator, the said William Jermy; did or did not in consequence of not establishing and confirming the name and arms of the said William Jermy upon themselves and their issue respectively and inheritably under the stringent clauses of the testator's will, forfeit for neglecting or disusing so to do all right (if any) which they derived or might have derived by virtue of the said will of William Jermy, 1751?
Whether the testator, William Jermy, being lord of the manors and patron of the churches, with the advowsons appendant, which he could have possessed, conveyed, or willed with the manors (being annexed to the possession of the manors) would not allow the claimant the full extension named in the statute, that of sixty years?
Further Queries for Counsel.
Whether the concealment by Isaac Preston of the indenture of the alleged bargain and sale, with John Jermy's of Great Yarmouth signature affixed, in his sworn answer to the bill, 1756, filed by Mr. and Mrs. Mitchell, might to some extent support the allegations of Mr. Larner, so that the Court of Chancery would view that instrument as a corrupt forgery?
Copies of MS documents can be produced, which will show what money has been taken out of Court by the aforesaid Isaac Preston, alias Jermy, for money deposited on sale of property belonging to the aforesaid William Jermy.
These preconcerted purchases the claimant submits as fraudulent, as well on account of the very inadequate sum of £20 being given for such valuable and extensive estates.
"Lord Eldon, in the case of Coles v. Trecothick, 9 Vesey, jun. p.234, says, That unless the inadequacy of the price is such as shocks the conscience, and amounts in itself to conclusive and decisive evidence of fraud in the transaction, it is not sufficient ground for refusing a specific performance."
This deed of conveyance was designedly obtained from an extremely illiterate man, John Jermy, who was in no manner cognisant of his right expectant, by Isaac Preston, an experienced and intelligent individual, and a trustee under the marriage settlement of the testator, who had notice of such rights.- Evans v. Liuellin, 2 Brown, C.C.150. Such a transaction will be set aside, although no actual fraud is proved. - Sugden, 5 "Law of Vendors," 8vo, London, 1818, p. 229.
The deed granted by John Jermy cannot be sustained as an instrument granted for a valuable consideration, for the extreme inequality of the price is so exceedingly strong, gross, and manifest, that it is impossible to state it to any man of common sense without producing an exclamation of the inequality of the price; and when this is the case, such a deed will be set aside.- Sugden on the "Law of Vendors," London, 1818, p. 228.
Counsel will observe, in perusing the will of the said William Jermy, p.12, that the testator could never have intended or anticipated for a single moment, that his poor relation, John Jermy, a labourer (although nearest related to him in blood at the time of his death), should or would ever succeed to the ultimate limitation at reversion in fee named in his said will, for the bequests to him in his said will is most imperatively laid down, viz. - "I give to Mr John Jermy, of Great Yarmouth, only six guineas, to be paid quarterly." This limited bequest is cogent proof of the testator's mind at the time of executing his last will, that the ultimate remainder should not be vested in that male person of the name of Jermy, nearest related to him in blood, until the prior limitations expressed in his said will should be exhausted. The said John Jermy died in or about 1781, before the testator's widow, the first tenant for life, who died 1791; therefore Isaac Preston's purchase of John Jermy is presumed to be abortive.
The fact is also borne out by Isaac Preston in his narrative, p. 39:-
"Mr. Jermy's intentions are well known to all the family; and what they were at the time of his marriage settlement I have sworn; and if this will not satisfy Mr. Mitchell, let him consider his will, by which he has given all his estates, both in or out of the settlement, to his wife for life, and then, on condition of their taking his name and arms, makes a special entail on my son and brother; and at last he gives it to he knew not whom, provided only it was a male of his name and blood."
1756. - In Easter Term the said John Mitchell and Frances his wife filed a bill in Chancery against Isaac Preston, the grandfather of the present possessor of Stanfield Hall &c. and trustee for Mrs. Mitchell, his sister, Jacob Preston, the other tenant for life, and trustee for his sister, Mrs. Mitchell, John Mallison, and Ann his wife, the heiress-at-law, Henry Palmer Watts, and Jermy Harcourt, trustee under the will of the testator appointed to preserve contingent remainders, which suit, on the death of the said Ann Mallison, was revived, and George England Mallison, her son and heir-at law, made a party thereto, praying amongst other things, that the said will of the testator, William Jermy, might be established, and the trusts thereof carried into execution and effect, and that a sufficient part of the testator's real estate, comprised in the said marriage settlement, might be sold in the first place to raise the sum of £5,000, with interest from the testator's death, or at least from one year next after his death; and also to raise and satisfy the value set upon the annuity of £400, or otherwise, that the said estates might be sold, subject to the said annuity, and that all proper persons might join in such sale. And the said several defendants put in their answer to bill.
By a Decree of the Court of Chancery, dated 25th Feb. 1762.- [London Gazette, No.10625, from Saturday, May 17, to Tuesday, May 20, 1766.]
To be peremptorily sold, pursuant to a decree of the High Court of Chancery, before Thomas Harris, one of the Masters of the said Court, at his chambers in Lincoln's Inn, on Wednesday, the 25th day of June next, at five in the afternoon, the following estates, for the remainder of a term of 500 years, viz. a farm, consisting of a messuage and about 700 acres of land, situated at Bayfield and town adjacent, near Holt, in the county of Norfolk, now let to Richard Johnson at £350 per annum, and also three cottages, near Holt aforesaid, let at £5 17s. per annum.
December 3, 1756. - See answer to bill, p. 57. Isaac Preston saith that be claims no right to, or interest in the said William Jermy's estate on his own account, or any other manner than as a trustee of the said term of 500 years, save only such right as may be derived to him from or under Mr. Francis Jermy, of North Walsham, deceased, the male person of the name of Jermy nearest related to the testator, William Jermy, at the time of his decease.
Counsel will please to observe that it is evident, from the primogenial line of descent of the Jermy family of Gunton, that John Jermy, of Great Yarmouth, was the nearest related to the testator in blood at the time of his death; therefore the purchase by Isaac Preston from Francis Jermy could be of no effect; and in corroboration of this fact, Isaac Preston hath decidedly sworn in his answer that he derives his only title to the said estates under no other male person of the name of Jermy than the said Francis Jermy, of North Walsham; but for the sake of argument we will suppose he derived his title from John Jermy. The High Court of Chancery has effectually invalidated that indenture of bargain and sale, for the said Court of Chancery decreed that a sufficient of the said testator's estates, under his marriage settlement and will, should be sold to satisfy £5,000, the dower of Frances, the testator's widow.
November 25, 1764.- The said Isaac Preston executed his last will and testament, and after bequeathing all the estates which he had at Beeston, he bequeathed all the estates which he had purchased for £20 in the most inexplicable manner, as will be observed by the following extract (see will, p. 3):- "And whereas I am seized of certain contingent remainders in fee and reversionary estates and interests in the several manors, messuages, lands, tenements, and hereditaments, by me already (as I think) settled on my son Jacob, and the heirs male of his body, either by the marriage settlement of his mother, or by any voluntary or other settlement, to prevent, as far as I can, any dispute concerning the same, I give and devise all and every my manors, messuages, lands, tenements, and hereditaments in the said town hereinafter mentioned, or elsewhere, in the kingdom of England, with their appurtenances, and not hereinafter mentioned and devised, or in or by any codicil thereto, to my son, Jacob Preston, and the heirs male of his body," &c.
1768. - He died, and his widow proved his will that year. In consequence of the collusive purchases for £20, the said Isaac Preston bequeathed the said estates, which had been settled on his son Jacob (a tenant for life), as if he had been at the time infeft and seized of the said William Jermy's estates in fee simple, and by this nefarious act, he endeavours completely to defeat the testator's intentions, contrary to all rule and principle of ecclesiastical law. The said Isaac Preston not only innovates and alters the destination of the limitation of the will of the said William Jermy, but endeavours fraudulently, by entering into a conspiracy with certain parties, to supersede the same altogether."
Rush also gives an account of his "commencement" under the Rev. George Preston:
"I had frequently done business for my father with the late Rev. George Preston; he not only knew me by repeatedly writing to him, but he also personally knew me; times were very bad for farming, and he had often talked of giving up his farms, and had said I should have what part I liked when he did so, but should prefer my taking the whole; in the meantime, one of his tenants at Felmingham would not hold under him any longer; he wished me to take that, and I did so, under an agreement for 18 years, from Michaelmas, 1835, at £110 per annum.
He also gave me an agreement for my father-in-law for the same term at £130 per annum. Corn still continued very low, and at Michaelmas, 1836, I took the Stanfield Hall farm for 12 years, at £500 per annum; in 1837 the Rev. George Preston died, and by March, 1838, the leases were all declared not legally made, in consequence of there not being a proviso for re-entry in case of non-payment of rent, or some such blunder of the lawyer who made them, although he was chosen by the Rev. George Preston; and the present plaintiff was consulted by me and Mr. Millard on the business, and made no objection. I will call a witness to show you that up to this time, the 5th of March, 1858, the time the leases were set aside, only 17 months, I had expended £2315 3s. 8d. for labour alone, averaging £34 18s. every week, besides £712 7s. 7d. for artificial manure, &c., and this, be it observed, on only 422 acres, 2 roods, 19 perches of arable land, there being 260 acres, 2 roods, 19 perches of pasture; but this man, the plaintiff, who then, as he has done thousands of times since, and even up to the present time, professed to be my friend, said he only wanted what was a fair rent, offered to let me have the Stanfield and Felmingham farms, which I had been farming, and my father his farm, for 12 years, at the rent Mr. Millard should set on them; and I believe Mr. Newton was employed to assist Millard in setting the rent of the Stanfield farms. After having spent all my money on the farms, I had no alternative, and the rents were set, and the Stanfield Hall farm was taken according to the present lease."
After going into particulars of expenditure, as he states, of the prices of corn and the farming expenditure in labour, Rush thus proceeds:
"I will also show you, Gentlemen, that the Rev. George Preston had tried to let his Stanfield farms before I had anything to do with them; that from 1833, to the time I took them off his hands, Mr. Margitson had applied to get him tenants, but could not, and the present man, the Recorder, told me as soon as I had the offer, that no one he should like better for a tenant than myself, but he was fearful I should not be able to get through with his father. I will show you that I was not so over anxious about Hall's farm, Felmingham; that we did not close our treaty for that till Mr. Preston wrote for me specially to do so. I will also show you letters to Mr. W. S. Millard, and Mr. W. S. Millard's letters; that he was consulted, and the Recorder consulted, and that Mr. W. S. Millard was appointed to make the valuation of the Stanfield farming covenants between us.
I will also show you that the present Recorder, however he has treated me since, was quite agreeable to come to me for money when he required it, through his father, and that in all my transactions and doing business for hiss father, I never had a farthing for so doing in my life, and that I will defy him to prove I ever asked for a farthing till after the leases were done away with. I will show you that my accounts were examined and allowed by the Rev. George Preston, up to July, 1837, and from that time, and what accounts were afterwards entered, making altogether, as per book, £2124 19s. 4d. paid on the Rev. G. Preston's and administrators' account, and £2042 19s. 2d. received. These accounts, I will show you, were examined and allowed by the present Plaintiff, the Recorder, and he paid me the compliment to say, no one else could show such satisfactory accounts, having been kept with his father, and I was paid the balance due to me from such book without the least hesitation; any stranger to have done the above business, would not have charged less than £100; but my knowing I had good agreements, &c., and he always behaved so well, I never thought of making a charge.
I do not wish you to suppose that I have lost all my money by the farms being rented too high; I lost it by involving myself in debt, by the immense outlay on the farm and law expenses. I paid his lawyer's bills when the leases were done away with, £180 15s. 1d.; which I will show you; besides my own. I lost at least £1700 by the hail-storm, besides the liberal allowance I received from the Committee; and here I will just observe, I never got a shilling of the Recorder, but be even refused to pay me £11 l3s. 8d. that I paid for having the windows mended after the storm.
The present Plaintiff, when he came into possession, took it into his head to pull the Hall and all the offices down, and offered them to several people for that purpose. I persuaded him all I could not to do so, but he would, and after I found he was determined to do so, I bought the Hall, with the offices, with the understanding that I could have pulled them all down immediately, or have the whole of my term to do so. In less than two years he altered his mind, and I let him have the Hall as it is now standing, with
the coach-house and stable back again for the same as I gave him, which was only £1000; at the very time he took them they were worth to him at least £6000; yet for all this, you see how l have been treated."
Here follow various other payments by Rush and his mother, as he says, for Mr. Jermy and the solicitor's bill. He then adds:
"The only terms I have had the offer of settling this business was to give up all what they have got of mine and my mother's and cry quits; and if I would let the Plaintiff have the Potash Farm for what it is mortgaged for, he could give us a lease of the Felmingham farms at an advanced rent of £30 per annum more than is now paid; and this, be it observed, after it can be proved he has told more than fifty people, and my mother, over and over again, that she should never be turned out, but should go on at all events as long as she lived, at the same rents, they being so lately set by Millard, and the only alteration he should request was, that she should let his son have the use of the rooms for a few day in the shooting season, and find him with what is necessary, by being paid what was reasonable for the same; [and no longer ago than the 18th of October, 1847, he was at my house, Stanfield, where the distress was on, and after talking with me in his usual manner, the subject of the Felmingham farms was brought up, and he repeated again to me what he had so often done that the Felmingham farm should never be taken away from us; I requested a memorandum to that effect; he would not give me one, but called one of the bailiffs, who was then on the place, and the only one, besides his father, who knew how to behave themselves, to witness the substance of the following memorandum, which I requested my housekeeper to write down as correctly as she could she having heard the whole, as well as he, and they both signed it, and said they would come forward at any time if called on to make oath to its correctness, as near as they could recollect. It was as follows:-
Memorandum made this 19th day of October, 1847.
We, the undersigned, heard Isaac Jermy, Esq., repeat to Mr. J. B. Rush, last evening, and J. Philip Bowgen was requested by the said Isaac Jermy, Esq., to be witness, that if Mrs. Rush, of Felmingham, paid the distresses off at Felmingham for rent, he should consider her his tenant for both the farms; if Mr. Rush would cancel and do away with his lease of the farm he had been holding, and also his claim on the lease of the farm that Mrs. Rush had been farming; that he, the said Isaac Jermy, was perfectly satisfied with Mrs. Rush as a tenant, and that all the alteration he should think of making in the present leases was, that he should stipulate for a room or rooms in the house for a few days in the shooting season for his son, Jermy Jermy, and that Mrs. Rush was to find him what he might want, by being paid what was reasonable for the same. He also said if she had paid the rent on Thursday, he should have accepted her at once as tenant for both farms, as he said he would when at Felmingham with Mrs. Rush, and given her back whatever the expenses were less than the £10, and it was a great pity that he had not a receipt with him at the time, that she might have done so; but even now, whenever she paid the money, he was perfectly willing to accept her as tenant, and the only alteration he wanted (the rents being so lately set by Millard) was, as he had stated, about a room for his son when shooting.
Witness our hands the day and year above written,
Philip Bowgen, Jun.
[The above memorandum is a copy of the original.]"
In this narrative there is just enough truth to save it from being complete falsehood. The Rev. George Preston would never pay tithes and suffered his land to lie idle for that reason. When therefore Rush took the Hall farm, it was in a wretched state. The original rent was low, because it did not include tithes, while the new lease, under Mr. Recorder Jermy, did include tithes. Rush's statement was that he left Wood Dalling neither in better nor worse circumstances than when he took it, leaving with about the same capital he commenced with, viz., £2000. He afterwards affirmed that he had £3000 in addition from his late father-in-law, Mr. Soames, and his sons, and also money from his mother, all of which was lost.
Note. - The Jermy Estates troubles were not ended with Rush's exit. See Taylor v. Gwyn; claim for Jermy Estates; Norwich Summer Assize, 5th August, 1878; before Lord Justice Thesiger- ] Good report in The Times, 6th August, 1878, p. 9, cols. 1 and 2;]
Ref: Shore, W. Teignmouth. 1927. Trial of James Blomfield Rush. William Hodge & Company, Edinburgh.