Journal of the House of Commons: Volume 11, 1693-1697. Originally published by His Majesty's Stationery Office, London, 1803.
This free content was digitised by double rekeying. All rights reserved.
Sabbati, 24 die Martii;
6° Gulielmi et Mariæ.
MR. Hungerford, according to Order, reported from the Committee, to whom the Bill for divesting several Securities out of Andrew Founteine Esquire, and others, and vesting the same in Trustees, for raising and paying the Money due upon the said Securities; and assigning the Residue of the Estate, incumbered therewith, to Sir Charles Holt Baronet; was committed; That they had examined and considered the same, and also the several Petitions of Andrew Founteine Esquire and Ann Gwaves, the Consideration whereof, was referred to the said Committee; and had made several Amendments to the Bill; which, as also a State of the Case, in relation to the said Sir Charles Holt and the Petitioners, he read in his Place; and afterwards delivered the same, in Writing, at the Clerk's Table: Where the same was read; and is as followeth: viz.
A State of the Case between Mr. Edward Coke, Mrs. Anne Gwaves, and Mr. Andrew Founteine, touching a Mortgage upon the Estate of Sir Charles Holt.
In or about June 1664, Sir Robert Holt, the Father of the now Sir Charles Holt, made a Mortgage of an Estate of about 700 l. per Ann. to Andrew Founteine Esquire, for 5,000 l. Principal: And, for the further Securing of the Money, a Recognizance of 8,000 l. acknowledged by the said Sir Robert Holt, was assigned to the said Mr. Founteine.
Now the Matter in Difference, between the said Mr. Coke, Mrs. Gwavas, and Mr. Founteine, is, The Property and Ownership of the said Mortgage-money: And as to Sir Charles Holt, his Endeavour is only, upon Payment of the Money to have his Estate again; and to have it so cleared from all their Pretensions, by having the Estate in Law out of Mr. Founteine, as that he may, by Sale or Mortgage, raise the Money by another Hand; or, the Estate being cleared, settle the same upon his Wife and Family.
Mr. Cook's Title to the Money in Question is, That upon the Loan of it, it was the Money of John Coke Esquire, who was his Relation, and from whom he doth derive a great real Estate, as Heir Male of the Family; and that Mr. Founteine was only a Trustee for the said Mr. John Coke; and that though Mr. John Coke made a Will, and Captain Coke, Mr. * Cobb, and Mr. Wm. Gwavas, his Executors, yet that the said Executors were only Executors in Trust for the said now Mr. Edward Coke: And that his Property to the said Money hath been adjudged by a Decree of the Court of Exchequer, and affirmed, upon an Appeal brought by Mr. Founteine, in the House of Lords.
Mrs. Gwavas insists, That she hath a Right to the Mortgage-money, Mr. Founteine being only a Trustee for Mr. John Coke; and she being the Executrix of Mr. William Gwavas her Husband, who was the surviving Executor of the said Mr. John Coke; and that the said Executors were likewise Devisees of the personal Estate, and not liable thereout to pay the Testator's Debts, there being a Provision made for that out of the real Estate: And that, upon a Suit brought by the said Executors, in the Court of Exchequer, Mr. Founteine was adjudged to be only a Trustee; and ordered to assign the said Mortgage to them: And that, although there is a Decree in the Exchequer, whereby it is decreed, That the said Executors should take the personal Estate, as Executors, and not as Devisees; and that the same should be applied, in the first place, for the Payment of Debts, &c. in Ease of the real Estate; yet, That she may be still relieved against that Decree: And that, however, her Husband being very much in Disburse upon the Account of the said Executorship, and of a Trust for the Payment of Mr. Coke's Debts out of the real Estate; and an Account being still depending touching that Matter; her Right to the Mortgage-money ought to be saved to her by the now Bill.
Mr. Founteine, in Evidence that the Property of the Money is in him, insists, That the Mortgage was made to him; the Money paid by one Gwavas, who was Agent both for Mr. John Coke and Mr. Founteine; and the Mortgage Deeds in his the said Mr. Founteine's Hands; and that Mr. Coke had given Mr. Fountaine several Releases of all Accounts and Demands: That Mr. Coke was privy to Mr. Fountein's settling this Mortgage-money, amongst other Things, as a Provision for his Wife and Children: That the Court of Exchequer decreed the Property of the Mortgage-money against him, without a Tryal at Law; and that the House of Peers, upon the Appeal to them, at first directed a Tryal at Law, Whether the Mortgage-money was, upon the Loan of it, Mr. John Coke's, and whether, after the Loan, he did give it to Mr. Fountein; and that, afterwards, the Lords, by another Order, did alter the Issue, and made it to be, Whether Mr. Coke gave the Mortgage-money to Mr. Founteine by any other Deeds or Writings, than by the Releases: By which Alteration, it is insisted, that Mr. Founteine was debarred from offering That in Evidence, which was his only Evidence in the Case; viz. The Releases; and that therefore the Tryal went against him.
And it was insisted, on the behalf of the said Mr. Founteine, That the now Bill, in divesting of the legal Interest of the Mortgage Estate out of him, will take away the chiefest Means he hath for the getting of the said Mortgage-money, to which he pretends to be so intitled as aforesaid.
By the Disputes of the several Pretenders to the Ownership of this Money, it being uncertain during the Contest who it belonged to, the Debt swelled up to 12,083 l. 13s. 4d.: And Sir Charles Holt, in pursuance of several Orders of the Court of Exchequer, hath paid 7,800 l.; and unless he pay the Residue, viz. 4,189 l. 9s. 8d. by Michaelmas next, he is, by the Decree of the Exchequer, to be foreclosed of his Equity of Redemption of an Estate of 700 l. per Ann.: For the Ownership of the Mortgage-money being, even in the last Court of Appeal, adjudged against Mr. Founteine, he cannot pay the Money to him; and, unless he pays it to Mr. Coke, he is to lose his Estate: And yet, unless he hath the Estate, in Law, out of Mr. Founteine, he cannot raise the Money by the Estate, or settle his Estate upon his Wife and Family.
And that, upon the whole Matter, the Committee came to several Resolutions; which they had directed him to report to the House; and which he read in his Place; and afterwards delivered in at the Clerk's Table: Where the same were read; and are as follow; viz.
Resolved, That it is the Opinion of this Committee, That the passing of this Bill will not prejudice Mr. Founteine in any Right which he hath to the Mortgage-money in Question.
Resolved, That it is the Opinion of this Committee, That the vesting the Estate, in Law, of the Mortgage in Question, in Trustees, for the Purposes in the Bill mentioned, will not prejudice Mrs. Anne Gwavas in any Right she hath to the Mortgage-money in Question.
And afterwards the Amendments were once read throughout; and then a Second time, one by one; and upon the Question severally put thereupon, agreed unto by the House.
And the Question being put, That the Bill, with the Amendments, be ingrossed;
It passed in the Negative.
Resolved, That the Bill be rejected.
Resolved, That this House will, upon Tuesday Morning next, resolve itself into a Committee of the whole House, to consider further of the Bill for vesting the forfeited Estates in Ireland in their Majesties, to be applied to the Use of the War.
Leave of Absence.
Ordered, That Mr. Freke have Leave to go into the Country, for Recovery of his Health.
A Member discharged from custody.
Ordered, That Sir Edward Phelips, in Custody of the Serjeant at Arms attending this House, for absenting himself from his Service in Parliament, be discharged out of Custody, paying his Fees.
Ways and Means.
Sir Thomas Littleton, according to the Order of the Day, reported, from the Committee of the whole House, to whom the it was referred to consider further of Ways and Means for raising the Supplies to be granted to their Majesties, for the Maintenance of the Fleet, and LandForces, for the Service of the Year 1694, the Resolution of the said Committee; which they had directed him to report to the House; and which he read in his Place; and afterwards delivered in at the Clerk's Table: Where the same was read; and is as followeth; viz.
Resolved, That it is the Opinion of this Committee, That, towards the Supplies to be granted to their Majesties, for the Maintenance of the Fleet, and Land-Forces, for the Service of the Year 1694, the Sum of Six hundred thousand Pounds be lent and advanced by the present East-India Company, to be repaid, without Interest, by the Customs which shall grow due to their Majesties from the said Company.
The said Resolution being read a Second time;
And a Debate arising thereupon;
Resolved, That the Debate be adjourned until Monday Morning next.
Exporting Iron, Copper, &c.
A Message from the Lords, by Mr. Holford and Mr. Pitt:
The Lords have agreed to the Bill, intituled, An Act for the Exportation of Iron, Copper, and Bell-Metal, with some Amendments: To which they desire the Concurrence of this House.
And then the Messengers withdrew.
Ways and Means.
The House, according to the Order of the Day, resolved itself into a Committee of the whole House, to consider further of Ways and Means for raising the Supplies to be granted to their Majesties, for the Maintenance of the Fleet, and Land-Forces, for the Service of the Year One thousand Six hundred Ninety-four.
Mr. Speaker left the Chair.
Sir Thomas Littleton took the Chair of the Committee.
Mr. Speaker resumed the Chair.
Sir Thomas Littleton reported from the said Committee, That they had come to several Resolutions; which they had directed him to report, when the House would please to receive the same.
Ordered, That the said Report be made upon Monday Morning next.
Ordered, That all Committees be adjourned.
And then the House adjourned till Monday Morning, Nine a Clock.