Page:The English Reports v1 1900.pdf/357

The appellants made this case: That Mary Braithwait and Sir Stafford Braithwait, 12th January, 1674, in consideration of 1000l. lent by Sir Henry Hunlock, Bart. demised the manor and lands in Catterick, in Com. Ebor. to John Jeffs, (as trustee for Sir Henry) to hold for 1000 years, under a proviso to be void on payment of 1060l. and Sir Stafford Braithwait, 18th and 19th October, 27 Car. II. conveyed his interest therein to Mary Braithwait and her heirs, and the term was afterwards vested in Lord Viscount Fauconberg, as a security for 3000l. lent by him; and in February, 1680, Mary Braithwait devised several farms (being the premises now in question) to Sir Roger Strickland in tail mail, with remainder to Robert Strickland for his life, remainder to his first and other sons in tail mail, remainder in fee to Sir Roger, on condition that he should pay off the 3000l. to Lord Fauconberg, and other sums therein mentioned: And, 24th March, 1681, Lord Fauconberg, in consideration of 2500l. paid him by Sir Roger Strickland, and of 500l. paid him by Richard Allibon, Esq.; assigned the premises to Allibon as a security for payment of said 500l. and interest; and, 10th March, 1682, Richard Allibon, in consideration of 500l. paid him, and Sir Roger, in consideration of 3000l. paid him by Edward and Thomas Ange (trustees for Robert Strickland) absolutely assigned the premises to them for the remainder of the term: And, 11th March, 1682, declared the trust; and Robert Strickland immediately took possession, enjoyed the premises, and received the rents; and, 2d June, 1685, in consideration of 500l. lent Robert Strickland by appellant Job Allibon and John Smith, the Anges, by his direction, assigned to William Gerard and Christopher Maddison (trustees for Allibon and Smith) and, 13th June, 1685, in consideration of 500l. more lent by them, Robert Strickland confirmed the premises to Gerard and Maddison, as a security for both sums and interest, and Gerard and Maddison both afterwards [394] died: And, in 1690, Sir Roger Strickland was indicted and outlawed for treason, and, by inquisition, found seised in fee of the lands in question, and administration to Maddison, the surviving trustee, being granted to Dixwell Hungerford, a plea was in his name put in to the inquisition, and judgment given for Hungerford, which was afterwards affirmed upon a writ of error in the Exchequer (2 Lutw. 996) And in Hillary, 13 William III. a bill was brought in the Exchequer against Robert Strickland, appellant Allibon, and others, in the Attorney General's name (int. al.) for a discovery, whether the assignment of the 10th March, 1682, was absolute, or a mortgage only, or a trust for Sir Roger, and what consideration was paid, and to have a discovery of the consideration of the mortgage to Gerard and Maddison, and whether they or any of the defendants were trustees for Sir Roger, and that the crown might redeem if any thing was due: Robert Strickland, long before the bill brought in, went into France, and was never served with process to appear, nor did he appear, or answer, nor could any commission be obtained, or executed during the war, and he was for all that time unable to travel; but an order was made, 15th July, 1704, that the leaving process against him with Crofts (who received the rents) with Mr. Butler (the mortgagees attorney in the Exchequer) and with one of the tenants of the lands in question, should be good service of Robert Strickland, and for want of his appearance a sequestration was awarded: And that the other defendants answered, set out their title, and denied any fraud, or knowledge of any trust for Sir Roger Strickland; and, 17th February, 1704, Dixwell Hungerford assigned to appellant Ridley a moiety of the mortgaged premises and money due, in trust for appellant Allibon; and Hungerford afterwards dying, administration of the goods of Maddison unadministered by him, was granted to Ridley, who became thereby a trustee for the other moiety, also for the appellant Allibon: And the cause was heard, and the depositions of several witnesses (then dead) examined in a former cause, on the same attainder and inquisition, and for the same lands, between his late Majesty's Attorney General, and some of the defendants, were offered to be read; and although by order of the same court, the depositions in the former cause were allowed to be read as evidence at the hearing, yet appellants were not [395] per-