The Second Part OF REPORTS OF CASES Taken and Adjudged in the Court of Chancery FROM The 20th Year of King Charles II. TO THE First Year of Their present Majesties King William and Queen Mary BEING Special CASES and most of them Decreed with the Assistance of the Judges and all of them referring to the Register Books wherein are setled several Points of Equity Law and Practice To which is added The late Great CASE between the Dutchess of Albemarle and the Earl of Bathe LONDON Printed by the Assigns of Richard and Ed Atkyns Esquires for Iohn Walthoe and are to be sold at his Shop in Vine-Court Middle-Temple MDCXCIV THE PREFACE TO THE READER THE Favourable Entertainment which the First Part of these Reports met with at your Hands hath encouraged me to Present the Remainder of them to Your perusal The acceptance whereof I shall not much doubt when I consider that besides the Charm of Novelty the Cases were heard and decreed with great Deliberation and Solempnity in our own times by Persons very Eminent and Famous in their Professions and upon that account they bear with them their own Letters of Recommendation For I cannot imagin that the Chancery Causes which if of any considerable weight as usually they are being generally mixt with Law should receive a closer and more satisfactory Determination when they are Pronounced from a Cleryg man or a bare States-man than from one of that Honourable Profession To render them the more intire I have abridged the great Case of the Duke of Norfolk which hath solidly setled the perplexed Points of Perpetuities It is true The Lord Chanceller Finch differed in Opinion at that time from the Learned Judges and he was in pain to do it yet certainly there is no Common Lawyer let him Espouse his Notions never so dearly but must both admire and acquiesce in the Equity of that Case I have added an Abstract of the famous Case of Com' Mountague contra Com' de Bath with the Judges and Lord Keeper's concurrent Opinions and their Reasons briefly recited but that Cause by Appeal now depending before the Highest Judicature in the Nation and waiting the Decision of the Honourable House of Peers I do not think fit to mentiom more of it In many other excellent and useful Cases here Reported tho' they have been Argued and decreed in a Court of Equity yet a Common Lawyer may find many Points agreed and setled to good satisfaction respecting those two great Cargoes of Law-business WILLS and SETTLEMENTS But Lastly to obviate an Objection which causeth some quarrel with us How comes it to pass that after such frequent and solemn arguing of Causes in all their Niceties and Circumstantials that Decrees are so often Reverst by succeeding Chancellors I must Reply to this as that Learned Chancellor did in the above mentioned Case of the Duke of Norfolk I must be saved by my own Faith and must not Decree against my own Conscience and Reason Besides by a further Penetration into the Series of Transactions the Intentions of the Parties and the like perhaps something may arise which was not thought of or not thoroughly considered But the true and main Cause of the variety of our Opinions is the Natural Imperfections of our Faculties Uncertainty even in our own Judgments is incident to our Nature And I cannot express my Notion better than in the bold Words of that Ingenious Canonist Gomez in Regula de Triennali possessore cap. 5. Non est inconveniens judicium esse uno tempore justum postea ejus contrarium justius Et hoc malum imponi videtur mortalibus in poenam ut eorum Opiniones secundum varietatem temporum senescant intermoriantur aliaeque diversoe renasrantur deinde pubescant Talis enim est humani juris disciplina ut nulla in ea Opinio eodem statu diu stare possit Dies diei eructat verbum nox nocti indicat scientiam THE TABLE OF THE CASES A ALexander contra Alexander p. 37 Audley contra Dom ' Audley p. 156 Annand contra Honywood p. 179 Com' Arglas contra Muschamp p. 266 Attorney General contra Vernon p. 353 Ash contra Rogle p. 387 B BEauchamp contra Silverlock p. 9 Brabant contra Perne p. 36 Boulter contra Chester p. 55 Barthrop contra West p. 62 Boucher contra Antram p. 65 Broud contra Gipps p. 98 Bowyer contra Bird p. 99 Burgrave contra Whitwick p. 131 Burne contra Tynt p. 148 Brodhurst contra Richardson p. 153 Dom ' Blois contra Blois p. 162 Dom ' Bruce contra Gape p. 197 Barker contra Hill p. 218 Bonnington contra Walthall p. 219 Benson contra Bellasis p. 252 Bradbury contra Ducem Bucks p. 286 Beckford contra Beckford p. 359 Berny contra Pitt p. 396 C COm' Castlehaven contra Vnderhill p. 46 Chambers contra Greenhill p. 66 Croster contra Wister p. 67 Crip contra Bluck p. 88 Cotton contra Cotton p. 138 Civill contra Rich p. 141 Carr contra Bedford p. 146 Coles contra Hancock p. 210 Com' Craven contra Knight p. 226 Coventry contra Hall p. 259 Carvill contra Carvill p. 301 D DArrel contra Whitchcot p. 59 Dethick contra Banks p. 92 Dowse contra Percival p. 248 Dom ' Daeres contra Chute p. 245 Durston contra Sandys p. 398 Dixon contra Read p. 21 Com' Dorset contra Powle p. 411 E EVery contra Gold p. 1 Eyre contra Good p. 34 Episcop ' Sarum contra Nosworthy p. 60 Elvard contra Warren p. 192 Eyre contra Hastings p. 273 F FRy contra Porter p. 26 Floyer contra Hedgingham p. 56 Feake contra Brandsby p. 101 Fenwick contra Woodroofe p. 363 G GErman contra Dom ' Colston p. 137 Dom ' Grey contra Colvile p. 143 Green contra Rook p. 166 Glenham contra Statvile p. 193 Girling contra Dom ' Lowther p. 262 Griffith contra Jones p. 394 H HAle contra Aston p. 35 Hunton contra Davies p. 44 Hunt contra Jones p. 56 Hooker contra Arthur p. 62 Howard contra Hooker p. 81 Harmer contra Brook p. 92 Hodkin contra Blackman p. 103 Hethersel contre Hales p. 158 Howard contra Duke of Norfolk p. 229 Hall contra Dench p. 297 Hallily contra Kirtland p. 360 I JOlley contra Willis p. 137 Jones contra Henley p. 361 K DOm ' Kemp contra Kemp p. 63 Knight contra Atkyns p. 400 Kettleby contra Lamb p. 404 L LAngton contra Tracy p. 30 Lance contra Norman p. 79 Leech contra Leech p. 100 Lawrence contra Berny p. 127 Lambert contra Greene p. 213 Lucking contra Rushworth ibid. Langton contra North p. 271 M MOsely contra Maynard p. 17 Macklow contra Wilmot p. 18 Malpas contra Vernon p. 45 Monnius contra Dom ' Monnius p. 68 Mosely contra Mosely p. 105 Morgan contra Scudamore p. 134 Maddocks contra Wren p. 209 Magistr ' c. Vniversity Oxon ' contra Foxcroft p. 244 Massingberd contra Ash p. 275 Moore contra Hart p.
Plaintiff to pay interest for for the 5000 l. to 1641 at 8 l. per Cent. and from 41 to 49 the certain profits of the Mortgaged premisses to go in discharge of the interst till that time and that if the remaining interest with the 5000 l. should in 49 amount to 7000 l. then the Plaintiff to pay Interest for 7000 l. else only for so much as the principal and Interest according to the Statutes in force This Cause was again Reheard by the Lord Chancellor Shaftsbury assisted with Judge Vaughan and Judge Ransford The Defendant insisted that setting of the interest against the certain profits from 41 to 49 as aforesaid was a great advantage to the Plaintiff and that after so long a time the Plaintiff ought not to be permitted to redeem This Court nevertheless was satisfied That the Plaintiff ought to redeem and the Matters now in Controversie being Whether the certain Profits of the premisses shall go against the Interest from 41 to 49 or not and whether the Plaintiff shall pay Interest for any more than the 50000 l. first lent or not and what Interest he shall pay at least during the hard times of War This Court on hearing Presidents was clear of Opinion The certain Profits of the premisses set against the Interest That the Setting the certain Profits of the premisses against the Interest from 41 to 49 ought to be discharged and decreed the same accordingly And touching that Point for what Monies the Plaintiff shall pay Interest either for the 5000 l. only or any greater Sum. This Court with the Judges were of Opinion That the Plaintiff ought not to pay Interest for any greater Sum than only for the 5000 l. the Original Mortgages This Court declaring there is no Reason to give Interest upon Interest Interest upon Interest and that the now Defendant ought not to be in any better condition than Sir Abraham Dawes the first Mortgagee Crisp contra Bluck 25 Car. 2. fo 357. THis Case comes to be heard upon a Bill of Review Bill of Review and an Appeal from a Decree made by the Lord Chancellor Shaftsbury the Plaintiffs Original Bill being to be relieved against a Bond of 1600 l. penalty for payment of 1000 l. and Interest entred by the Plaintiffs Father the Testator and others to William Bluck the younger in 1642. The Defendant commenced Suit on the said Bond in 1662. Bond and Judgment after upon it and the Principal and Interest far surmounted the Penalty when Judgment was entred how payment of Monies shall be applied in such case and had Judgment thereupon against the Plaintiffs Father only and the Principal and Interest due on the said Bond far surmounting the Penalty when Judgment was obtained and the Defendant being 20 years kept out of his Mony but having received several Sums in part since the Action at Law brought it was decreed That whatever Monies were received before the Judgment actually entred should be taken in discharge of the Interest of the said 1000 l. Original debt and that the Defendant should be satisfied after the Judgment entred the whole Mony thereupon recovered with damages from the time the Judgment was actually entred deducting what he had received since the actual entry of the Judgment and allowing his Costs at Law and moderate Costs in this Court And it was found that the Judgment was not actually entred till the Vacation after Michaelmass Term 1662. and so only 250 l. paid in November 1662. Whether Mony paid shall be applied to discharge Interest of the Original debt or towards satisfaction Recovered by Judgment on the same Bond. Judgment when said to be entred was accounted Interest of the Original debt and not towards the Mony recovered by the Judgment and the Account was so setled and decreed and the Mony paid accordingly Yet for Reversal of the said Decree the now Plaintiff for Error assigns that the same tends to the invalidating of the Course of the Court of Kings Bench it being by the Decree admitted that the said Judgment was entred in the Vacation after Michaelmass Term 1662. and not before Whereas it is evident by the Records of the Kings-Bench the said Judgment was entred on Record in Michaelmass Term 1662. and by construction of Law is supposed and presumed to be Recorded the first day of that Term against which Record no Evidence or Averment ought to be admitted and all Monies paid after the first day of that Term ought in Equity to be applied towards satisfaction of the Judgment and so the 250 l. paid in November 1662. in part of a debt in question ought not to go to satisfie the Interest but in part to discharge the Principal The Lord Chancellor Shaftsbury was of Opinion If entred before the Effoin-day of the subsequent Term ought to be accounted a Judgment of the preceding Term. That no Notice could be taken of any actual entry of any Judgment at Law but that every Jugment whensoever entred if before the Essoin day of the subsequent Term ought to be accounted a Judgment of the first day of the Term before and allowed and held the said Error to be good and decreed the 250 l. paid in Nov. 1662. should go and be applied as part of satisfaction of the 1600 l. and damages due on the Judgment and what other Monies were paid by any other of the Obligors their Heirs Executors Administrators or Assigns since the 20th of October 1662. if not paid on other account shall be applied in further satisfaction of the said Judgment first to discharge the Interest and then to sink the Principal and as to so much did reverse the said Decree and the Defendant appealed from this said Decree to the Lord Keeper Finch and insisted That by his Answer to the Original Bill said when the 250 l. was paid the Judgment was not entred and presently after Hearing the Original Cause the late Lord Keeper Bridgman calling to his Assistance the Master of the Rolls who declared That the Defendant should not account for any Mony as received on the Judgment until the said Judgment which was his Security was really and actually entred if the Plaintiff insisted as before which was Over-ruled and the Plaintiff then brought a Bill of Review to which the Defendant pleaded and demurred and thereupon the Lord Bridgman declared the Decree to be Just as to the 250 l. and the Decree made by the Lord Shaftsbury is to unravel the Account setled and to charge the Defendant with 4000 l. when by the Original Bill or Bills of Review they do not charge him with above the Penalty of the said Judgment This Court now declared That the Examination of the time of the actual Entry of the Judgment in this Case Examination of the actual entry of a Judgment at Law only intended to inform the Court and not to impeach the Judgment did not impeach the Judgment but only to guide the
Deed made by the Plaintiff Eliz. in Feb. 1666. Frandulent Deed. before her Marriage with the Plaintiff Sir Philip Howard and that the Plaintiff Sir Philip in right of his said Wife might have all her benefit and interest in or to the Estate of Sir John Baker her former Husband and receive the Rents and profits of the premisses The Case being that Sir John Baker the Father being seized in Fee of Lands by two Deeds Tripartite of Lease and Release made between himself of the one part Sir Robert Newton deceased of the second and Sir John Baker the Son and Dame Eliz. the Plaintiff and sole Daughter of Sir Robert Newton of the third part in consideration of a Marriage between the Plaintiff Dame Eliz. and Sir John Baker the Son and 4000 l. portion conveyed the same to Sir Robert Newton and his Heirs part of which Lands were for the said Dame Eliz. Joynture and Sir John Baker the Father and Dame Mary his Wife being dead Sir John the Son sold part of the premisses for payment of debts part whereof was the Joynture of Dame Eliz. and in consideration of the said Dame Elizabeth joyning in such sale and parting with her Joynture Sir John her Husband in lieu thereof and of 1500 l. to be paid to Dame Elizabeth for a Joynture house limitted the premisses unsold to the said Dame Elizabeth and the Defendants for 400 years upon Trust by Sale thereof to pay the said Dame Elizabeth the said 1500 l. and also the Rents and profits of the whole until Sale and the residue of the said premisses remaining unsold to Dame Elizabeth during her life and after to wait on the Inheritance And in 1658 the Inheritance was conveyed to Sir Robert Newton and his Heirs and he by Will devised the same to the said Dame Elizabeth for life Remainder to the first Son of the Plaintiff Sir Philip and Dame Elizabeth so the Plaintiff being intituled to the 1500 l. and the term of 400 years after the Trusts performed and so ought in right of the said Dame Elizabeth his Lady to continue in the possession of the premisses and receive the Rents and profits thereof which the Defendants refused to do pretending the term of 400 years is limited to them upon other Trusts and in particular that the Plaintiff Dame Elizabeth before her Marriage to the Plaintiff Sir Philip by her Deed of the 9th of February 1666 Assigned to the Defendants all monies then due or to be payable to her by vertue of the Deed in Trust for her benefit and to be at her disposing during the Joynt lives of her and the said Sir Philip whether she Married or continued Sole and that she should have power by writing under her Hand and Seal to dispose thereof for the benefit of her Daughter by her former Husband and that she hath disposed thereof accordingly which said Deed the Plaintiff insists is fraudulent or with power of revocation and never mentioned to Sir Phillip and that Sir Philip after his Marriage setled 500 l. per Annum on the said Dame Elizabeth for a Joynture which he would not have done if he had known or understood the said Dame Elizabeth had made such Deed or disposition as aforesaid of her former Husbands Estate and since their Marriage she desired leave of Sir Philip that she might receive the Rents and profits of the said Lands of her former Husband without mentioning the said Deed and therefore the same ought to be set aside The Defendants do insist the said Dame Elizabeth before her Marriage with the said Philip did declare to him that who ever did Marry her should have no benefit of any Estate that she had by her former Husband and that Sir Philip did agree to bar himself thereof and take no benefit thereby A Widow makes a Deed of her former Husband Estate and marries the second Husband not privy to it the Deed set aside and the second Husband to enjoy the Estate and that Sir Robert Newton looking upon the Estate as setled on his Grand-children as aforesaid and had given his personal Estate and 700 l. per Annum to the Plaintiffs and their Sons and the said Sir Robert Newton never pretended right to the said Estate or intermedled therewith that there is no reason to set a side the said Deed of the 9th of Feb. aforesaid This Court being assisted with the Judges on reading the said Deed it not appearing unto this Court that the said Sir Philip had any notice of the said Deed 9th of Feb. 1666. till after the death of the said Sir Robert Newton which was several years after the Marriage nor was privy or consented to the making of any such Deed but haveing intimation that Dame Elizabeth intended to dispose of her interest in her former Husbands Estate from such Husband as she should Marry broka off the treaty of Marriage which was afterwards brought on again by some Friends of the said Dame Elizabeth and that the said Sir Philip was induced to Marry the said Dame Elizabeth upon the hopes and confidence of having the interest she had in the Estate of the said Sir John Baker her former Husband without which he would never have married her and that the said Sir Philip never knew of the said Deed of the 9th of Feb. 1666 but the same was a fraud upon Sir Phillip and that therefore no use ought to be made thereof and decreed the said Deed of the 9th of Feb. 1666 be absolutely set aside and no use to be made thereof against the said Sir Philip or any claiming under him Poter contra Habbert 24 Car. 2. fo 591. THis Bill is to have a redemption of a Mortgage made in 1636 Mortgage by the Plaintiffes Father to one Abraham Dawes for 5000 l. and for non-payment of the Mortgage mony Sir Thomas Dawes Son and Heir of the said Abraham Dawes entred in 1641 and he and his Assigns have ever since taken the profits And the Defendant insists that the said Thomas Dawes in 49 conveyed the mortgaged premisses to Hugh Hubbert the Defendants Father for 7000 l. and that in 1641 when Sir Thomas Dawes entred there was 5000 l. due on the Mortgage besides interest so he would be charged without 350 l. per Annum for mean profits since that time and would have 6 l. per Cent. Interest for the 7000 l. from the time it appearing on the conveyance This Cause being first heard by Judge Ransford who ordered the Plaintiffs to redeem Computation of interest monies according to the Statute in force and the account for the Interest of the 500 l. to begin from 1636 the time of lending the mony and from that to 1642 Interest to be paid according to Acts then in force and from 42 to 46 Interest at 8 l. and 4 l. per Cent. The Cause being heard again by the Lord Keeper Bridgeman assisted with Judge Tyrrle Morton and Wild who ordered the
should Marry in his Fathers life time then he should from such Marriage during his Fathers life pay the Defendant Interest for the 2500 l. And the Defendant insists That if the said Plaintiff dyed before his Father the Defendant had lost all his Mony This Cause being first heard by my Lord Finch 9 Feb. 33 Car. 2. who then upon reading the said Defezance declared That as this Cause was he could not releive the Plaintiff otherwise then against the penalty and decreed the Plaintiff to pay to the Defendant 2500 l. with Interest This Cause was Re-heard by my Lord Chancellor Jeffreys the Plaintiff insisted That he had by order of this Court 5300 l. upon the said Judgment and that the late Lord Chancellor and Lord Keeper had frequently releived against such fraudulent and corrupt bargains made by Heirs in their Fathers life time and that there was not any real difference where the contract is for Mony and where it is for Goods This Court on reading the Defezance declared it fully appeared The Heir relieved against a concontingent contract made in his Fathers life time because it seemed unconscionable That these Bargains were corrupt and fraudulent and tended to the destruction of Heirs sent hither for Education and to the utter Ruin of Families and as there were new Frauds and subtle contrivances for the carrying them on so the relief of this Court ought to be extended to meet with and correct such corrupt Bargains and unconscionable practices and decreed the former order to be discharged and the Plaintiff to be restored to what he hath paid over and besides the Principal Mony and Interest Durston contra Sandys 2 Jac. 2. fo 108. THat the Defendant being Patron of the Rectory of Messenden in Com' Gloucester The Parson relieved against a Bond given for Resignation and the former Incumbent having Resigned the same the Defendant told the Plaintiff he would present him to the said Rectory worth about 100 l. per Annum and the Plaintiff coming to the Defendant for the said Presentation the Defendant drew a Bond of 300 l. penalty with Condition That the Plaintiff should resign the said Rectory at any time within six Months Notice which the Plaintiff sealed and thereupon the Plaintiff was Instituted and Inducted and was ever since a constant Resident on the place and hath been at charge of Repairs and the Plaintiff demanded Tithes of the Defendant who refuses to pay the same but gave the Plaintiff Notice to resign who Resigned the said Rectory into the Hands of the Bishop of Gloucester but the Bishop refused to accept the said Resignation and ordered the Plaintiff to continue to serve the Cure declaring That he would never countenance such Unjust practices of the Defendant but ordered his Register to enter it as an Act of Court That the Plaintiff had tendred his Resignation and that the said Bishop had rejected it That the Defendant Arrested the Plaintiff on the said Bond for not Resigning so to be relieved against the said Bond is the Plaintiffs Suit The Defendant insisted That the Plaintiff demanded more than his just due for Tithes whereupon the Defendant refused payment and that the Defendant requesting the Plaintiff to resign according to the Condition of the said Bond the Defendant Arrested him which he hopes is Just for him to do and that this Court will not hinder the prosecution and that the Plaintiff hath no colour of Relief in this Court against the said Bond and insist That the Reason of his Arresting the Plaintiff on the said Bond was his Non-residence and litigious Carriage to the Parishioners This Court declared That such Bonds taken by Patrons from their Clerks to Resign at pleasure may be good in Law yet ought to be enjoyned and damned in Equity whensoever they are used to any ill purposes And the Defendant making ill use of the said Bond his Lordship decreed That a perpetual Injunction be awarded against the Defendant to stay proceeding at Law upon the said Bond. Knight contra Atkyns 2 Jac. 2. fo 604. THat the Plaintiff is Brother and Heir as well of John as Benjamin Knight Marriage Agreement to have Monies laid out in Lands for a Joynture to such uses the Remainder to the use of the right Heirs of the Husband The Mony is not laid out the Husband dies without Issue the Mony decreed to the Plaintiff being right Heir and also Executor of the said Benjamin and the said John Knight being seised of a Plantation in Barbadoes of 1000 l. per Annum by his Will declared his debts to be paid and gave several Legacies and made his Brother Benjamin sole Executor and gave him the residue of all his real and personal Estate and the said Benjamin proved the Will and afterwards a Treaty of Marriage was between the said Benjamin and Sir Johnathan Atkyns on behalf of Frances the Daughter of Sir Jonathan upon which Treaty it was agreed that Sir Jonathan should give the said Benjamin 1500 l. as a Portion with the said Frances and for a Joynture in case Frances survived Benjamin was to add 1500 l. and the said Sums to be laid out in a purchase of Lands to be setled upon Benjamin and Fraâ—â—â—s for life and for a Joynture for Frances in lieu of her Dower and after their decease to the Issue between them and for want of such Issue to the right Heirs of the said Benjamin and until such purchase the said respective Sums of 1500 l. to be paid into the hands of the Feoffees and the increase thereof to the uses aforesaid but in regard such a purchase could not be speedily found out Sir Jonathan and Benjamin became mutually bound to each other by Bonds of 3000 l. penalty with Condition reciting That there being suddenly a Marriage to be had between the said Benjamin and Frances and for setling a future Maintenance upon Frances in case she survived and upon the Issue between them If therefore Sir Jonathan his Heirs Executors c. should pay as a Marriage portion with the said Frances into the hands of two Feoffees to be joyntly appointed between them 1500 l. which with the like Sum to be paid by Benjamin was to be laid out upon good Security real or personal and the increase thereof for the uses aforesaid and in case the whole was not provided within a short time then so much as either party should deposit and the Remainder with all convenient speed then the said Bonds to be void That such provision was sufficient and in full of any Dower the said Frances might have to Benjamin's Estate That no Feoffees being appointed the 1500 l. still remains at Interest in Sir Jonathans hands And the said Benjamin for payment as well of his own as his Brother Johns debts and legacies and to oblige his real and personal Estate for performance of the Marriage Agreement did by Deed in 1681. convey unto Trustees all his Plantations Houses
or any Estate therein contained or to dispose of the said Honours Manours and Lands in any other sort or to any other Person or Persons and his or their Heirs or for any other purposes and the same his Mind Intent and purpose should signifie and declare in Writing under his Hand and Seal in the presence of six Credible Witnesses three whereof to be Peers of this Realm and should pay to his Trustees or any of them the Sum of Six pence with intent or purpose to frustrate or make void the said Indentures That then and not otherwise and immediately after such Signification Declaration and payment or tender of payment of 6 d. as aforesaid the said Use and Uses Estate and Estates Trusts Confidence Intents and Purposes and all and so much of the premisses whereof the Duke should make such Signification or Determination should cease Determin and be utterly void to all Intents Construction and Purposes whatsoever and that then and from thenceforth it should and might be lawful for Duke by such Writing or any other Deed or Writing Subscribed Sealed and Testified as aforesaid to declare new or other Use or Uses Trust or Trusts of all or so much of the premisses whereof the Duke should make any such Signification or Declaration or otherwise to dispose of the premisses or any part thereof at his Free Will and Pleasure any thing in the Deed to the contrary notwithstanding And for the further prevention of the mischief and Inconveniences that might attend any future or suddain Surreptitious Will Covenant which might at any time defeat his Recited Will which he declares to have made upon Mature Deliberation Covenants for himself his Heirs Executors and Administrators with the Duke of New-castle and his Trustees that he would not Revoke Annul or Discharge the said Will or any the Legacies thereby devised unless by some instrument Sealed and Executed in the presence of many and such Witnesses as are in the said Proviso specified declared and described for Credible Witnesses within the said Proviso according to the Intention Literal Sense and true meaning of the Duke expressed in the said Proviso He denies the said Deed was obtained by Surprise but that the Duke executed the same in the presence of many Credible Witnesses and that the Duke left the Deed and Will in his keeping And as to so much of the Bill as requires the Defendant to give an account of what part of the said Dukes Personal Estate came to the Defendants Hands he is Advised by the Rules of this Honourable Court that he is not Compellable to Answer thereunto for that it appears by the Plaintiffs Bill that at the time of the Exhibiting thereof the Plaintiffs were not intituled to make such demand or to have such account it thereby appearing of their own shewing that they have not proved the said Will of 87. but that the same was and still is under Controversie undetermined in the Prerogative Court whereof or as to that part of the Bill he demurs As to the Objection That it was a Concealed Will and Deed the Defendants insist that it was done silently but the Duke would have it kept Secret that he might be free from Trouble and Importunity And they insist That as to the last Will of 85. That the Duke Advised with Councel to know whether a Will made after the Settlement would avoid or impeach the Settlement was answered that it would not and that Proviso must be strictly pursued whereupon he was well satisfied and that the said Deed ought to be supported and not set aside in Equity being made upon such Meâ—â—torious Consideration of Blood Merit c. The Plaintiffs insist That the said Deed if any such being a Voluntary Settlement only that the Will of 87. is a good Revocation thereof in a Court of Equity So that the great Question was if the said Deed it being found to be valid at a Trial at Law is Revoked by the said last Will according to Equitable Intention or Construction This Cause having been Debated and Argued several times by Learned Councel and afterwards by three Judges viz. my Lord Chief Justice Holt the Lord Chief Justice Treby and Mr. Baron Powell it was agreed by them that the Deed was a good Deed well executed and not Revoked by the Will of 1687. The Lord Chief Justice Treby's Argument in short was thus In 1675. the Duke made his Will and declares in respect that the Earl of Bathe was his Kinsman and had done many Kindnesses to him and his Family the Earl should have the greatest part of his Estate and gives several Legacies to one Monck and then he makes a Deed of Settlement in 1681. tho' the Limitations by the one and the other differ but it is not made to revoke but to confirm the Will Both the Will of 1675. and Deed of 1681. do agree in giving the greatest part of the Estate to the Earl of Bathe but the Proviso in the Deed makes the dispute and then there is a Will of 1687. wherein a larger Estate is given to the Dutchess and Colonel Monck c. and desires the Honour of Potheridge may be established on the Moncks The Plaintiffs Bill is to establish the Will of 1687. and set aside the Deed of 1681. and Will of 1675. And the Deed on the Hearing of the Cause was directed to be tried and a Verdict for the Defendant and the Plaintiff hath acquiesced under it and so this Deed must be taken as a good Deed and Conveyance without any suspicion for the Right was tried and the whole Contents tried and if it were good at Law whether there be cause to set it aside in Equity is the Question He was of Opinion That the Deed was a good Deed and ought not to be impeached in this Court The Plaintiffs Arguments against the Deed are 1. Surprize 2. Concealment 3. That the Will of 1687. is a Revocation in Equity 4. That there is a Trust As to the Surprize He observed they did not make use of the word Fraud in gaining the Deed but that it was something put upon the Duke for want of deliberation He said he was not satisfied that there was any Surprize on the Duke for he was not languishing at that time under any Sickness but it was done and executed in good Company and after dinner with great Consideration both before and at that time They pretend a want of Circumstances in the execution whereas Sir William Jones was advised with before the Deed sealed and present at the time of the sealing Several other Circumstances were insisted on by the Plaintiffs but none are sufficient to set aside the Deed. The Deed of 1681. and the Will of 1675. are not inconsistent tho' they differ in the limitation of the Estate But by both the greatest part of the Estate is given to the Earl of Bathe Tho' they could not find Instructions for drawing the Deed tho' the Deed was