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paying to the prior incumbrancers their principal, interest, and costs; and that thereupon she should be let into [563] the possession of the said mortgaged lands, and enjoy the same, until full satisfaction of her principal sums of £2000 and £40 and the growing interest thereof; and such sums as she should pay to the prior incumbrancers, and the interest thereof, together with her costs.—And, upon a re-hearing on the 20th of May 1717, this decree was affirmed, with only this alteration; that the £40 mentioned in the said decree, as interest remaining due at the time of assigning the mortgage, should not carry interest.

From these decrees, the present appeal was brought; and it was insisted on behalf of the appellant (C. Phipps, R. Raymond), that his trustees had no power to make a mortgage, for securing monies intended to be due for business done for the appellant, when an infant, or for gratuities: and as it appeared that the said Dr. Oldys's mortgage was obtained by fraud and circumvention, during the appellant's minority; and was taken in trust for the said John Butler, as a gratuity or recompense for his pretended services; the same was void in its original creation, and the appellant ought to have been relieved against it. That the decree of the court of Chancery of Great Britain was refused to be read. That the respondent's assignment was taken at the instance and solicitation of Lucy, the widow of the said John Butler, or her agents; and consequently the respondent must have known that Dr. Oldys was only a trustee for Butler; and that whatever money she paid on such assignment, was to come to the said Lucy Butler, and not to Dr. Oldys; and that therefore the respondent could not be entitled to any better relief, than the doctor or Lucy Butler would be. That the money paid by the respondent (if any) was not for the appellant's maintenance, education, or settlement; and that, as her title was properly determinable at law, she could expect no more from a court of equity than to set aside those incumbrances which might hinder a fair trial at law.

On behalf of the respondent it was insisted (N. Lechmere, W. Peere Williams), that Dr. Oldys did actually advance the £2000 mortgage-money; and paid the same into the hands of the Duchess of Devonshire, who was the appellant's guardian, and chief acting trustee. That Dr. Oldys, being desirous to be repaid his money, the respondent, upon the application of the appellant's trustees, and those employed by them, did actually and boná fide advance and pay to the doctor the said sums of £2000 and £40 upon his assignment of the mortgage. That the respondent had no reason to believe or imagine, that the said mortgage was not fair and honest, or that Dr. Oldys was any ways a trustee for John Butler, the appellant's agent, or any other persons whatsoever; nor was there any proof thereof, or that the respondent had notice of any such pretended fraud or trust. That the respondent was the rather induced to advance the said mortgage-money, because those noble persons who were the appellant's trustees, joined in the assignment; and they, or some of them, [564] were then pleased to assure the respondent, that the security was a good one, and that she should be repaid the said mortgage-money and interest: and as the respondent was not in the least degree privy to any fraud or trust, if ever there was any in relation to the said mortgage, so she could have no reason to suspect any, touching a security, in the transfer whereof such noble and honourable persons were concerned. And, as to the not allowing the decree made in England against the said Lucy Butler, to be read in evidence against the respondent, it was insisted, that such evidence ought not to be allowed, in regard the respondent was not brought to hearing in that cause, nor a party to the said decree.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed: and the decrees therein complained of, affirmed.

And, after a debate as to costs, and the question put; it was ordered, that the appellant should pay the respondent the sum of £100 for the costs of the said appeal. (Jour. vol. 20. p. 626.)