Page:The English Reports v1 1900.pdf/358

mitted to read these, and so were deprived of part of their necessary defence; and although Robert Strickland, under whom appellants claim was the principal person concerned, and had not appeared or answered, yet the Court, 13th November, 1707, decreed that the issues following should be tried at the bar of the said Court, by a Middlesex Jury, viz. First, whether the indenture of the 10th March, 1682, was duly executed, and by whom, and to whom and when, and whether the same was an absolute purchase, or a mortgage only for any and what sum, and to whom, and when payable, and whether the sums of 500l. and 3000l. therein mentioned, or either and which of them, or any and what part thereof were really and bona fide paid, as the consideration of said indenture, and by whom and to whom, and when and whether the rasures made at the bottom of the said indenture were made before the execution thereof by all the parties thereto, or any and which of them: Second, whether after, and notwithstanding the said indenture of 10th of March, 1682, there did remain any, and what estate, trust or interest for the said Sir Roger Strickland, in the said term of 1000 years, and the lands therein mentioned, or any and what part thereof, and to what yearly or other value at or after the attainder of Sir Roger Strickland: And third, whether appellant Allibon and said John Smith, or the said William Gerrard and Christopher Maddison, in the indentures of the 2d and 13th days of June, 1685, named, or either and which of them, for or upon the account of the appellant Allibon and the said John Smith, or either and which of them did at any time, and when, really and bona fide lend and pay to Robert Strickland, or to any other, and whom for his use, the two sums of 500l. in the said indentures mentioned for, and as the real considerations for making and executing said indentures, or either and which of them; and whether said indentures, or either and which of them, were really and bona fide made and executed by all or any, and which of the parties thereto; and when, and whether the interest and trust for the appellant Allibon and the said Smith, or either and which of them (if any such was) did subsist, and was in being for them, or either and which of them, and for what sum or value, at the time of exhibiting the bill in the said cause, and putting in the answers thereto, and whether [396] the appellant Allibon and the said Smith, or either of them, or any other, and what person for them or either of them, before the supposed time of lending of their money, had any notice of any interest or trust in the said premises in Catterick for the said Sir Roger Strickland: And 4th, Whether the indenture of the 17th of February, 1704, mentioned in appellant Ridley's answer to be made by the said Dixwell Hungerford to the appellant Ridley, was really and bona fide executed, and by whom and when, and for what consideration, and when, and to whom, and by whom paid, and whether any and what trust or interest, and to what value, for the appellant Ridley, or any other, and whom did subsist, and was in being at the time of exhibiting the bill in the said cause, or putting in the appellant Ridley's answer thereto: And this decree appellants insisted ought, as far as it concerned them, to be reversed, because they were not permitted to read the depositions of witnesses in the former cause (since dead) by which several matters directed would have been evident to the Court: And because the order of 15th July, 1704, for service of the subpoena against Robert Strickland, and upon which they proceeded to a sequestration, was inconsistent with the rules and practice of a Court of Equity, and not a sufficient foundation for such contempts; and that Robert Strickland not having appeared, nor being in Court, nor brought to hearing, the Court ought not to have made any decree against appellants, who were only mortgagees under him: And because, after full proof of payment of the money lent by appellant Allibon and by Smith to Robert Strickland, issues were directed to try those very facts, though there was no proof on the part of the Attorney General to render those payments in the least suspicious or doubtful: And because appellants ought not to be decreed to try the said issues, or to make out Robert Strickland's title under the deed of the 10th of March, 1682, to which they were strangers, nor ought any issues to have been directed touching the same, Robert Strickland being no party; and insisted that no issue or verdict, or decree thereon as against Robert Strickland, could bind him, he being no party thereto; so that the appellants could not be indemnified against him, but were accountable to him at his pleasure, and so likely to be doubly vexed for the same matter: And