year 1664 SIR Rob. Holt borrow'd of Andr. Fountaine Esq the sum of 5000 l. and procur'd him an Assignment of the Mortgage of the Mannors of Bushwood and Lap­worth as a Security for his money.

The Money was paid to Sir Rob. Holt by one Gwavas, who was Agent both for John Coke of Norfolk Esq and for the said Mr. Fountaine, who knowing this to be Mr. Fountaine's Money, took this, and another additional Security, in Mr. Fountaine's name, and gave all those Deeds into his hands, which still remain in his custody.

Mr. Fountaine often demanded the Money of Sir Rob. Holt, and was by him in several Letters (which will be produc'd to this Honorable House) ear­nestly desired to give him further time for the payment of the Money.

year 1671 Mr. Fountaine delivered Declarations in Ejectment upon the mortgag'd Estate, and had Judgment; and some time after a Bill was exhibited in Chancery against Mr. Fountaine by Sir Rob. Holt for Redemption of his Estate, and for an Account.

Hitherto no other Person was mention'd in this Case but Mr. Fountaine; the Security given in his name, and lodg'd with him; the Application for forbearance made to him; the Declarations brought by him; and the Bill exhibited against him only.

year 1671 The said Gwavas having entic'd Mr. Jo. Coke to alter his former Will, and to leave him Executor, endeavour'd to give himself a Title to this Money, by pre­tending that the Property of the Money was in Mr. Coke, and that Mr. Fountaine was only a Trustee for him; and tho for that end he could not produce any De­claration in writing; yet (the Act against Frauds and Perjuries being not then made,) he offer'd by colour of some presumptive Proof to make out a secret and imply'd Trust in Mr. Fountaine.

Whereas, it was made out, and will be prov'd to this Honorable House, that the Property and Owner-ship of the said Money was legally vested in Mr. Fountaine, and that Mr. Coke had, as well before the Loan of this Money, as after it, by nine successive Releases, fully and absolutely discharged Mr. Fountaine of all Account [...], sum or sums of Money before receiv'd, and of all demands whatsoever.

These Releases were given not only out of that Affection and Respect which Mr. Coke always bore and express'd to Mr. Fountaine for his former kindnesses to him in his Extremities, and for his Subsistance upon him, and for saving his Life in the time of his Travels; but were granted likewise upon good Considerations in lieu and satisfaction of the Arrears of a Rent-charge of 1000 l. per annum due to Mr. Fountaine out of Mr. Coke's Estate, of which no demand had been made for several years.

Mr. Coke was so far during his life from pretending to have any interest in Holt's Mortgage, that upon Mr. Fountaine's Marriage with a Kinswoman of Coke's, Holt's Security with the rest, were (with Coke's privity) setled on the Wife and Children of that Marriage. And albeit a misunderstanding was a little before Mr Coke's death created between him and Mr. Fountaine by the ill means of Gwavas, and the differences referr'd to Council to settle, yet Mr. Coke did not in the least pretend to any interest in this debt, tho he and Gwavas then endeavour'd to take all advantages against Mr. Fountaine.

And immediately before Mr. Coke's death, Gwavas and Mr. Coke were so conscious, that Mr. Fountaine was both in deed and intention discharg'd by the said Relea­ses of all sums within that time; that he did therefore make provision out of the real Estate for payment of Debts and Legacies; and neither claim'd nor expected any advantage from this Mortgage.

And afterwards, it was upon Rob. Coke's Bill, order'd, in Chancery, that Mr. Fountaine should not insist on the Arrears, during Mr. Coke's life, in respect of the mo­nies discharg'd by the said Releases.

Nevertheless, afterwards in the Exchequer, without any Tryal at Law and pending an Appeal, without any Declaration or Proof of a Trust; and notwithstanding the said Releases, and no pretence ever made in Coke's life time; and notwithstanding a Judgment against Holt in Coke's life-time for Mr. Fountaine, and Mr. Coke's privity thereto, and to the Settlement on Mr. Fountaine's Marriage; it was Decreed that Mr. Fountaine was only a Trustee for Mr. Coke; and the Court of Exchequer, contrary to all former practice, took upon them to send out a Sequestration upon this Decree.

When afterwards upon Appeals to the Lords the Decree of the Exchequer was confirm'd, (except as to Holt's 5000 l.) A Tryal at Law was touching this Debt directed by their Lordships, and the Issue directed was, Whether the said 5000 l. or any part of it, was the Money of the said Mr. Coke at the loan thereof, and whether Mr. Coke at any time after the Loan thereof, gave the same to Mr. Fountaine? And Mr. Fountain provided for the Tryal accordingly.

But afterwards before the said Tryal, upon the 24th of Apr. 1690, in another Parliament without any new Petition or Hearing at Bar, and without any Notice given to Mr. Fountaine, upon a motion made at the Rising of the House, there was a new Order made by the major part of such of the Lords as were then present, and a new Issue was directed, viz. Whether Mr. Coke at any time after the Loan thereof, gave the same to Mr. Fountaine by any other Deed or Writing than by the Releases?

The Issue was thus alter'd: And all that defence at the Tryal, which both by the Court of Exchequer, and their Lordships former Judgment was allow'd to Mr. Foun­taine, was wholly taken away, so that by these Proceedings, and the Sequestration, not only the Rent-charge of 1000 l. per an. out of Mr. Cokes Estate, adjudg'd to Mr. Fountaine in all Courts whatsoever; but his paternal Estate, and the Fortunes he had with two Wives amounting to 10000 l. that is, all his Estate Real and Personal, the produces thereof were without any satisfaction or allowance for the Arrears of the Rent-charge hitherto wav'd in lieu of the said moneys, and which would go far in discharge of the Decree; and without any provision for Mr. Fountaines Wife and Children, by colour of the said Decree and Order, wholly and entirely sequestred to the use of the GUARDIAN of Mr. Coke.

In this Session a Bill is brought in under the name of Sir Cha. Holt. The Scope of which is that, in pursuance of the said Decree, thus affirm'd by this Order of the House of Lords, the money due to Mr. Fountaine, may be paid to the GUARDIAN of Mr. Coke; and upon that payment the Acts, Releases, Discharges, and Reconveyances of the Trustees therein named, shall be deem'd, adjudg'd, and enacted, to be the Act, Releases, Discharges, and Reconveyances of Mr. Foun­taine.

Mr. Fountaine being very desirous to ease Sir Cha. Holt by all methods imaginable in his power, made Proposals to him for contracting the security, and offer'd, after the discharge of all other incumbred Lands, to have so much Land only subject to his Mortgage, and to his Recognizance, as would, upon a purchase, after an Ac­count stated, answer the Debt. By which means Sir Cha. Holt who design'd a Sale of this part of his Estate, would be wholly reliev'd; And the Claims of the present pretenders, kept on foot, and the Land remain as a Stake to attend the present Order in, and the final issue of this Cause.

But forasmuch as these reasonable Proposals were, upon what grounds is not known, refus'd by Sir Cha. Holt, and Mr. Cokes Counsel; And forasmuch as this Bill not only sets aside all those legal Assurances and Conveyances, which are the only Supports and Evidences of Mr. Fountaines Title, but also wholly precludes him from any pro­spect of any future relief; and forasmuch as Sequestration, under which he lies, is of the first Impression, and without Precedent, and that this suppos'd Interest of Mr. Coke arises not from an express, but an imply'd Trust, and a Trust which is only presum'd by the Court of Exchequer, and not found by a Jury upon proof: And forasmuch as the said Mr. Fountaine design'd to have a Tryal at Law, (if the said Order had not in great measure debarr'd him from his defence,) and now desires nothing more, than that his Cause may be referr'd to a Jury, and determin'd by a Verdict: And forasmuch as the Settlements on Mr. Fountaines Wife, made on valuable considerations, will, by the consequences of this Bill, be defeated, and his whole Family intirely ruin'd, without any hope of remedy. It is hop'd and humbly pray'd, that this whole matter, being of very great consequence, may be heard by the Honourable House of Commons, before any further procedure upon this Bill.