The effect of the Viscount Montagues bill exhibited in Parliament .

THe Viscount on the behalfe of himselfe and his daughters complaineth , shewing that whereas in April 1611. hee conveyed diuerse lands to Sir Robert Dormer , since Lord Dormer , Sir Iohn Dormer Knight , and Francis Englefield then Esquire , now Barronet , vpon trust for the paiment of his debts being neare 8000 l , & for raising of a summe not exceeding 20000 l for the mariage portions of his daughters , the remaine to be reassured on the next heire male of his house .

And whereas likewise he the said Viscount did convey vnto the said persons the Mannor of Wanbarow and divers houses in St Mary Oueries for the raising of 6000 l more owing by him to his Maiestie , which debt of 6000 l was satisfied by the sale of Wanborow onely , and for the profits of the lands trusted , Sir Francis Englefield did take the same , and by foure yeares profits thereof and the sale of some part hath raised great summes .

And whereas he the said Viscount by his deed dated the 25 of Iune 1613. did assigne as parcel of the said 20000 l the summe of 10000 l to his daughter Mary now the Ladie St Iohn , to Katherine 4000 l , to Mary now wife to Robert Peter Esquire the summe of 2000 l , of which deed the Feoffees hauing notice did not make paiment accordingly ; neither are his the said Vicounts debts by them paid , but the Vicount inforced to pay part thereof himselfe ; whereupon a bill was exhibited in Chancerie by the Lord St Iohn and his Ladie for this mariage portion of 10000 l , which afterward was decreed to be paid with damages after 6 l for the 100 l .

And whereas there was in the said assurances divers errors , the said Viscount therefore exhibited his bill in Chancery against his three Feoffees aforesaid , desiring that he might name new Feoffees to whom the estate of these lands might be conveyed ; for which purpose Sir George Moore , Sir Iohn Walter and M. Thomas Spencer were by him nominated , who he desireth may hold the same to the aforesaid vses , vpon which bill it was the 23 of Iune 1618 decreed , that Sir Francis Englefield and Sir Iohn Dormer should conuey the said lands to the aforesaid new Feoffees for the raising of mony to satisfie the Ladie St Iohn and to discharge the residue of the trust , by which decree Sir Francis Englefield is inioyned to make his account , and to pay all moneys due on the same to the Viscount Montague with damages .

In obedience of which decree , Sir Iohn Dormer hath conueyed his interest in the lands trusted to the said new Feoffees , but Sir Francis Englefield denieth vpon pretence that neither the Vicounts request nor the Decree of the Court can secure him .

For that the performance of this trust doth much concerne the Viscounts estate and his children , he desireth to haue it enacted that Sir George Moore , Sir Iohn Walter and M. Thomas Spencer shall haue to them and their heires such of the lands trusted as are yet vnsold , together with the houses in S. Marie Oueries , vpon trust and confidence that they shal by the sale of the lands vnsold , or any part thereof , leuie the remain of the Ladie St Iohns portion vnpaid , with the damages awarded , and the mariage portions of his other daughters vnsatisfied , and the 1000 l parcell of the said 10000 l payable to the Marques .

It is further enacted in respect of the Lord Dormer deceased and Sir Iohn Dormer haue not receiued any rents or profits , nor intermedled with the trust that they shall be discharged from the same ; and that Sir Francis Englefield paying to the Viscount the moneys by him raised by sale or main profits of the said lands and now in his hands , shall likewise be discharged of the said trusts . And if Sir Francis Englefield doe not before Whitsontide next following make a iust and perfect account and pay the arrerages with damages , that then the Viscount may haue his action of account , and this act to be a sufficient ground of this action .

And be it further enacted that all bonds entred into by the said Viscount vnto Sir Robert Dormer , Sir Iohn Dormer and Sir Francis Englefield , or any of them concerning the said lands and trust , shall be vtterly void .

And be it further enacted , when the said debts , portions , and damages shall be paide , that then the lands vnsold shall be assured on Francis Browne Esquire , eldest sonne of the said Viscount , and the heires males of his body : and if he die without issue male , then to the Viscount for life , and after to the heires males of his body , and for want of such issue , then to his next heire male in blood , and to such further vses as are expressed in the booke of trust : and the ouerplus of money arising by the profits or saile , shall be to the Viscount and his heires .

And it is further enacted , that the 1000 l. payable to the Marques of Winton . parcel of the 10000 l mariage portion , being before the Annuntiation 1622 discharged by Sir George Moore , Sir Iohn Walter , & M. Thomas Spencer , the Lord Marquisses lands shal be discharged of the Ladie St Iohns ioynture and dowrie , and that the Lord St Iohns and his heires shall be acquitted and discharged from the Lady St Iohn debts , charges & maintenance ; and after paiment made to the Marquis of the 1000 l aforesaid , all leases and assurances made by the Vicount vnto Sir Rich. Weston , Sir Rich. Farmer and Sir Ant. Maynie for the paiment of the said 10000 l portion to the Marquis , shall be voide .

The seuerall Answers to the said points .

BY the trust as the same is laid downe in the Viscounts bill , it appeareth that the persons trusted are Feoffees to the vse of such next heire male of the Viscounts house as first after his death shall accomplish the age of 21 yeares , and not to the vse of the Viscount , who by his deed vnder his hand and seale hath wholy depriued himselfe of all power to reuoke or alter the same if he had any .

The houses in St Marie Oueries are no part of the lands subiect to this trust , yet by a Tacite trust to be assured on the next heire male of the Viscounts house , as by the Feoffees answer made vpon oath to the Viscounts bill is set forth .

The first Feoffees of this trust haue by the same trust ten yeares time to pay the Viscounts debts , and 20 yeares to raise 20000 l payable in mariage portions for the Viscounts daughters , most of which debts and Katherines 4000 l mariage portion they paid with the foure yeares profits while they held the lands , since which time the Viscount himself and his new Feoffees haue by the power of the Court of Chancery taken the same from them , and are now in full possession thereof , & haue thereby raised neare 16000 l , which contrary to diuers orders made in Chancery they paid not to the Ladie St Iohn nor towards the performance of the trust , but convert the same to their owne vse ; the non paiment therefore of the Lady St Iohns 10000 l not through the first Feoffees default but the Vicounts ; no cause of this the Ladie St Iohns suite , which she fraudulently exhibited in the Lord St Iohn her husbands name , without his priuitie , and he therefore hath disclaimed the same , as appeareth vpon record .

There are no errors in these assurances , no cause therefore of this the Vicounts bill which he exhibited vnder pretence only to change the Feoffees of this trust , but with intent vtterly to destroy the same . This Decree which is the ground of this bill in Parliament , was by the Vicount procured by bribes , and these bribes confessed in Parliament .

By the trust this account is not to be made to the Vicount but to the next heire male of his house , yet hath Sir Francis Englefield alwaies proffered the same , and to pay the arrerages if any be to the new Feoffees , so he may be secured from the heire male of the Viscounts house , to whom by the trust the same is payable .

The Viscounts request nor a decree in Chancery can secure Sir Francis Englefield against such next heire male of the Viscounts house , who being an infant or a person vnknowne , cannot be made partie to any bill , and therefore not to be bound by any Decree .

The Vicount by this his bill pretendeth the performance of this trust , yet doth he vtterly destroy the same by assigning the houses in St Mary Oueries ( which are no part of the lands trusted ) for the paiment of the La. St Iohns portion .

It is willingly granted that these new Feoffees shall be invested in the lands trusted , so as the same be from Iuly 1617. euer since which time they haue quietly held the lands without any interruption of the first Feoffees .

The trust will allow no damages to be paid , the summe of 10000 l for a mariage portion & not otherwise being only due , and the Marquis hauing the interest of this mariage portion at the time when this bill was exhibited , this Lady could receiue no damage , & therfore could expect no recompence .

The Lord Dormer , and Sir Iohn Dormer haue intermedled in this trust as farre as Sir Francis Englefield hath , onely Sir Francis Englefield confesseth to haue receiued and disbursed all the moneys by reason of this trust , and proffereth his account for the same , and for this purpose desireth that indifferent Auditors may be appointed .

It is meant by this , to make voide the statute of 20000 l , acknowledged by the Vicount to the first Feoffees , for the performance of his couenants contained in the said booke of trust : this therefore being parcell of the assurances , may not without destroying the trust be made voide .

The surplusage of the lands vnsold , are by the trust appointed to raise portions for all the Vicounts yonger sonnes , and for want of yonger sonnes to be reassured on such next heire male of the Viscounts house as first after his death shall accomplish 21 yeares , the transferring therfore of these lands on the Vicounts son Francis Browne in the Viscounts life , is contrary to the direction of the said trust : the ouerplus of mony likewise is by the trust appointed to the said next heire male of the Vicounts house ; the Vicount therefore by requiring the paiment of this ouerplus to himselfe , doth vtterly destroy this trust .

It appeareth by Articles before the Lady St Iohns mariage , and by a deed executed vnder the hands and seales of the Vicount , the Lord St Iohn and his Ladie made after mariage , that the Marquis of Winton , was to receiue the whole 10000 l mariage portion ; but it appeareth not how the Lord Marquis should haue onely 1000 l thereof , and to be discharged of the Ladie St Iohns ioynture .