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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A60878	The Arguments of the Lord-keeper, the two Lords Chief Justices, and Mr. Baron Powell, when they gave judgement for the Earl of Bath	Somers, John Somers, Baron, 1651-1716.; Treby, George, Sir, 1644?-1700.; Holt, John, Sir, 1642-1710.; Powell, John, Sir, 1645-1713.	1693 (1693)	Wing S4637; Wing A3646_CANCELLED; ESTC R17706	80,573	63

to be set aside by this Will I have nothing further to consider in this Case nor are we to make Presumptions and then to make Inferences from thence We are to judge upon the fact as it appears in the Depositions which are plain and clear and upon these we are to determine our Opinions and nothing else that is dark and that we cannot come at further than by conjecture There have been said in the Cause which I omit on purpose because I would mention only those that are most material Upon the whole matter I am of Opinion there ought to be no Relief in this Case against my Lord of Bath and those that Claim by the Deed of 81. LORD KEEPER I Shall first take Notice how these Causes stand in Court and who are the Parties in Judgment before the Court. Here are Three Bills One in which the Dutchess of Albemarle was Plaintiff and since the Inter-Marriage my Lord of Mountague is also Plaintiff against my Lord of Bath and others Defendants and this Bill sets out the law Duke of Albemarle's Marriage-Settlement and his Will of 87 with the Solemnity both of preparing and executing it and doth complain that the Earl of Bath sets up another Will and a Deed in 75 and 81 whereby he seeks to frustrate the Disposition of the Duke's Estate by the Will of 87. And the Bill doth alledge That if any such Deed was ever executed by the Duke which they have reason to doubt and do not admit they believe the same was imposed upon the Duke by surprize and not fairly obtained and by fraud were concealed from the Duke and ought to be set aside in Equity tho' the power of Revocation in the said Deed were not strictly pursued because his intention appears to revoke it and dispose of the Estate otherwise by making the Will in 87. And if it should not be set aside then the Dutchess ought to have the Lands limited to her by that Deed and the Rent-Charge of 2000 l. a year over and besides the Joynture settled upon the Marriage and confirmed by the Will of 75. And the Will of 87 ought to stand good as to the Personal Estate and Legacies therein and so prayeth to be protected in the Enjoyment of the Personal Estate and Specifick Legacies given to the Dutchess discharged of the Duke's Debts There is another Bill brought by Christopher and Henry Monk which complains of my Lord of Bath and the others setting up this Will of 75 and Deed of 81 and I think in the same Words or to be sure to the same effect with the other Bill and prays that both Will and Deed may be set aside and the Plaintiffs may enjoy the Benefit and Estate given them by the Will of 87. Then there is a Third Bill of my Lord of Bath Mr. Greenville and Sir Walter Clarges in which they set out the Will of 75 and the Deed of 81 and the continuance and constancy of the Duke's Friendship and Trust to the Time of his Death and complain that the Dutchess and other Defendants set up the Will in 1687. and do pretend that amounts in Equity to a Revocation of the Deed of 81 and his Bill prayeth that the Personal Estate may be applyed to pay the Duke's Debts in discharge of the Real Estate which they pray may be confirmed to the Plaintiffs in that Suit and a discovery of the Writings about the Real Estate and that they may be brought into Court and delivered up to the use of the Plaintiffs These Causes were first heard before the Lords Commissioners so long ago as the 8th of July 1691. then was there a Decree made That the Personal Estate should be accounted for and applied for the payment of the Debts but before the Court would deliver any final Judgment as to the Real Estate they ordered a Tryal at Law to be had in an Ejectment wherein the Dutchess and Mr. Christopher Monk were to be Lessors of the Plaintiffs and the Earl of Bath Mr. Greenvill and Sir Walter Clarges to be Defendants to try the Title to the Real Estate And the Plaintiffs were only to insist upon the Will of 87. and the Deed of 81. so as that the Defendants Right upon the said Will and Deed might be fairly tryed And all Exhibits were to be left with the Master three weeks before tile Tryal for either side to inspect take Abstracts and Copies of as they should think fit According to this Order in the Michaelmas-Term after there was a Tryal at the King's-Bench-Bar and upon that Tryal a Verdict past for the Defendants in the Ejectment the Earl of Bath c. upon the Will of 75. and Deed of 81. After the Tryal these Causes came to be heard again before the Lords Commissioners about a year and a half since at that time there was no complaint made of the Verdict nor any Motion for a new Tryal But after the Councel had been heard several days the Court took time to consider of their Judgment and before Judgment one of these Causes abated by the Marriage of my Lord Mountague and the Dutchess and by that and other Accidents the Cause hath been delayed till the late Hearing before the Court assisted by my Lords the Judges who have delivered their Opinions And now the Causes stand for the Opinion of the Court upon what appears in the Pleadings and Proofs and what has been so largely insisted upon on either side Upon which the Verdict being at Law for the Defendants I must take it as my Lords the Judges have already declared not only that these Deeds of Lease and Release of the 15th and 16th of July 1681. were duly sealed and executed by the late Duke of Albemarle but also that they stand still in force and unrevoked at Law for if they had not been so the Verdict could not have been as it was for the Defendant Therefore as that must be taken for granted that these are good Deeds in Law the only Matter at present for the consideration of the Court is Whether upon the debate of this Cause there be sufficient Ground in Equity for this Court to interpose in the Case so as to set aside these Deeds as not good in Equity or revoked by the Will of 87. or no And I shall as to the Matter of the Question conclude my Opinion the same way with my Lords the Judges that have delivered theirs before And with respect to this Matter I shall here consider who the Parties are in Judgment before the Court and what hath been alledged as Reasons and Grounds to induce the Court to set aside this Deed in Equity Here is no Purchaser in the case no Creditor no Child unprovided for but all the Parties claim by voluntary conveyances on the one side and the other so that at least they stand equal or if there be any circumstances as to the Persons that have any weight it is on the part of my Lord

Power of Revocation and he who had the Power is attainted of Treason Now all Conditions forfeited to the Crown must be performed or no Advantage can be taken This Power was in this Case agreed to be forfeited to the Crown the great Difficulty was Whether the King could perform the Condition or whether the Performance was not tied strictly to the Person that had the Power vested in him That was the great Doubt in that Case but there was no question but it was a Condition and the King should have it as a Condition forfeited And it is likewise agreed in Co. Lit. 237. That it is a Condition and would have been repugnant to be a general Power So that it is not as they say a Guard only upon a Man's Self to prevent Surprize but a Condition And as a Man must perform a Condition at Common-Law to entitle him to Re-enter so he must execute his Power to intitle him to a Revocation And a Court of Equity can no more let a Man in to defeat an Estate upon a Power of Revocation without a due execution of the Power than the Common-Law could let a Man in to defeat an Estate upon a Condition without performance of the Condition or than a Court of Equity can think to let a Man in to defeat a voluntary Conveyance without a Power of Revocation for it is all but a Condition which must be performed or no Advantage taken of it and a Court of Equity may do great things but they cannot alter things or make them to operate contrary to their essential Natures and Properties I confess where there is an Impediment of executing a Power of Revocation or disability of doing it a Court of Equity may perhaps interpose And therefore suppose the Earl of Bath had always had this Deed in his Custody from the time of executing of it and the Duke having a Mind to revoke it had sent to the Earl for it that though seeing the Circumstances required he might truly pursue them but the Earl had refused to deliver it and the Duke not knowing what the Power was had done such an Act with a mind to revoke I agree it is reasonable that a Court of Equity should interpose to support it But why is that because the Earl who was to have the benefit by this Deed was the Impediment why it was not strictly pursued And that is a Reason which would prevail at Common-Law I will put you a Case to prove it Dyer 354. A makes a Feoffment to B with a Power of Revocation if A at any time during his Life pay or cause to be tendred to B at the Font-Stone in the Cathedral at Sarum 20 l. A tenders the 20 l. at the Place in the absence of B and without any notice to him to attend this is held to be no Revocation But saith the Book as it should seem if he had sent to B to be there or some for him to receive the Money at the tender and B would neither have come nor sent it had been a good Revocation So that where there is an Impediment by the Default of the Party who is to have Advantage by the non-performance of the Power and he that hath the Power do an Act that expresseth his meaning to revoke that shall be a good Revocation at Law and in Equity I agree likewise that in case of Disability a Court of Equity may interpose And I agree therefore that in case the Duke of Albemarle had taken this Deed over with him to Jamaica and there had had an Intention to revoke it and had gone as far as he could to do it had made his Will and had six Witnesses to it I believe it would be a good Revocation in Equity though none of the Witnesses were Peers because of the disability he would be under to have any such Witnesses And so that defective Executions of Powers of Revocations may be helped in Courts of Equity in the Cases of Purchasers and Creditors I take it to be true too And it is said other particular Cases there may be wherein a Court of Equity can relieve though the Revocation be not according to the Power reserved And as to that I confess several Precedents have been cited and I wonder considering the Nature of them that more have not been mentioned but I think there are not above four or five very much to the purpose and those I shall take notice of and trouble you with no more The first is the Case of Thorn and Newman and that Case is no more in short than this A Covenants with B to stand seized to Uses with a Power of Revocation upon the tender of 12 d. in the Temple-Hall A tenders the 12 d. to B who accepts it but not in the Temple-Hall The Question was Whether this was a good Revocation in Equity Truly I believe it was a good Revocation in Law For suppose a Man makes a Lease reserving a Rent payable at Michaelmass in the Middle Temple-Hall and there is a proviso of Reentry upon nonpayment according to the Reservation The Rent is paid by the Lessee at the Day but not at the Place and the Lessor accepts the Rent and afterwards Reenters for breach of the Condition If he have once accepted the Rent being privy to the Deed that makes it a good performance of the Condition in Law absolutely So is Co. Litt. 212. And so it is in case of a Bond to pay Money at a Day and Place certain the Money is paid before the Day and not at the Place and the Obligee accepts the Money If he after bring an Action upon this Bond the Defendant can plead nothing but payment according to the Condition and in Evidence he may give it in Proof that though it was not paid at the Place and Day yet being received by the Obligee before the Day at another Place this is good Evidence at Law of Payment according to the Condition And that appeared in the Case of Band and Richardson Moor 267. Aderson 198. Cro Eliz. 142. And this Case of Thorne and Newman I take to be a good Performance at Law where indeed the Condition is to be performed to a Stranger that will alter the Case but where it is to one that is privy to the Deed I take it it is a good performance at Law and consequently must be good in Equity Another Case cited was that of Smith and Ashton and that was thus One Richard Ashton conveys his Estate in Uses with a Power reserved in the Conveyance by any Writing under his Hand and Seal to make provision for younger Children Being sick he prepares Instructions under his Hand in order for Counsel to draw it into Form and it is drawn into Form and ingrossed But before it is sealed he dieth and this was held a good performance of this Power in this Court. So here is a Defect in the Execution of a Power help'd in a Court of Equity

might be obtained from him by Surprize These are the Considerations and Reasons expressed in the Deed why he gives this Estate away from his Heir at Law Both this Deed and Will agree in this for substance that they limit the main part of the Estate to the Earl of Bath tho they differ in several of the Limitations to divers Persons and as to some of the Limitations to the Earl of Bath they differ too whether material or no shall be considered by and by There is in this Deed a Proviso which makes the great Question in this Case that the Duke should have Power to revoke any of the Uses in the Deed and limit new ones but this Power is restrained by several Circumstances it must be by writing under his Hand and Seal in the presence of six Witnesses three whereof to be Peers of this Realm and a tender of 6 d. to the Trustees named in the Deed. Afterwards in the Year 1687 the Duke makes another Will and thereby he giveth some Parcels of his Land to Mr. Bernard Greenville my Lord of Bath's Brother Sir Walter Clarges and others and makes some larger Provision for the Dutchess for her Life than she had before but the main bulk and residue of the Estate is by this Will given to Colonel Thomas Monk Father of the Plaintiffs And he doth likewise in that Will make a Petition to the King that he will be pleased to confer a Title of Honour upon him and make him Baron Monk of Potheridge the Ancient Seat of the Family That Will of 75 and the Deed of 81. are subscribed by six Witnesses each this Will of 87 but by 3 and so the defect of this Will to make it a Revocation is that there are but three Witnesses and none of them Peers and there was no tender of 6 d. to the Trustees The intent of the Earl's Bill is to have an Establishment of this Deed against this last Will and the intent of the Dutchess and Mr. Monk's Bills is to set aside the Deed and establish this last Will and that upon certain Grounds of Equity the Deed having obtained a Verdict for it at Law This is the general State of the Case the particulars will be brought in best under the several Heads that I shall mention But first I shall take notice as I go what Progress this Cause has had since it was first in Agitation First it was insisted That this Deed was a false Deed and that was thought fit to be directed to a Tryal at Law and it was most proper it should be so for it concerned a great Inheritance and Free-hold conveyed by Deed and a Devise both Titles at Law and that was fit to be decided in the proper Judicature for such things in a Court of Common-Law by a Jury Accordingly this Tryal was directed in an Ejectment at the King's Bench Bar and this Court so far aided the Parties to come to the proper Question as to order there should no Incumbrances stand in the way or be insisted upon but any thing that obstructed the Tryal of the Right should be set aside So that in short the Validity of this Deed was the thing directed to be tryed it was accordingly tryed and thereupon a Verdict obtained that the Deed was a good Deed and the Earl of Bath's Title under it good at Law and Judgment was afterwards entred up and that for the Defendant's part was not conclusive if there had been any Misdemeanour on the other side or in the Jury they might have had redress by applying to this Court for a New Tryal nay they may try it again when they please upon a new Ejectment But they have acquiesced under it to this day that is to say now for two Years together so that we must take it for granted at least this Court is I conceive bound by it that it is a true Deed and a good Conveyance of the Estate as much Evidence there is of it as is possible so strong an Evidence that we must take it to be a true and a good Deed and a Deed without Suspicion Twelve Men besides the Witnesses to it have Sworn the Validity of it that being the sole Question before them and this must be remembred all along in the Consideration of this Case Indeed the Counsel on the other Side did seem to speak a little slightly of it as upon a doubtful Evidence and at last that it is true by this Verdict they must admit that this Deed was sealed by the Duke though that was not a little controverted before But in truth here is the Right tryed it was a Deed that was a Conveyance of the Estate and now we must take it for granted that the whole of the Deed was tried and confirmed by the Verdict so that it is a good Conveyance at Law and passeth all that the words can carry And therefore in our Consideration of this Case we must lay aside all the Evidence that was or was properly to have been given at the Trial as to the Truth and Validity of the Deed And I for my part can allow my self no Consideration of this Deed in speaking to it but such as are Considerations of Equity consistent with the Truth of the Deed. And that is now the only thing that is to be applied unto what there is in Equity and Conscience why this Deed should be set aside when it is allowed to be good in Law there is no doubt but there may be good Ground in some Cases in Equity to set aside that which is good at Law But the Question is whether in this Case there be any such or no. But before I proceed to the Consideration of what has been insisted upon in that kind I desire to take notice of some things about the Will of 87. I am very well satisfied that that Will is well proved There is my Lord Chief Justice Pollexfen hath proved the Instructions given for the preparing it and the drawing of it and there are three Witnesses that speak to the Publication and this is confirmed by the Testimony of Sir Robert Clayton who transacted the first Part of that Affair to bring the Duke and my Lord Chief Justice together and I do equally reject all the Evidence on the one side and the other against the Truth of either the Deed or this Will Then this Will would have been a good Disposition of the Lands if the Law did not hinder that is if this Deed did not stand in the way as a prior Disposition and found good in Law so the Deed is good if Equity do not hinder it Now the Grounds of Equity which my Lord Mountague's Counsel insist upon are I think these I have made indeed but four of them but in Substance I do not differ from my Brother Powell about them for I comprehend that the Deeds being Ancillary as it was called and attendant upon the Will under the Head of a Revocation in

Equity I say the Heads of Equity insisted upon to set aside this Deed are four First Surprize and Circumvention in obtaining of it and that relates to the Creation of it Secondly Concealment from the Duke and this by my Lord of Bath and so he was not informed how his Power was circumstanced and therefore not able to execute his Power according to the Circumstances which makes it become a fraudulent Deed and for that Cause the Plaintiffs shall have Relief against it Thirdly Here is a Revocation in Equity though it be not in all Points such as would be sufficient in Law yet here is so much done towards it such a Solemnity in the Action done and such an Impediment of doing more as will amount to an equitable Revocation The fourth Head is that which was mentioned of the Trust in the Deed. As to the first Point of Surprize it was a Head much laboured by the Counsel on the Plaintiffs side and yet I confess I am still at a loss for the very Notion of Surprize for I take it to be either Falshood or Forgery that is though I take it they would not use the word in this Case Fraud if that be not the Meaning of it to be something done suddenly and unawares not with all that Precaution and Deliberation as possibly a Deed may be done Here was a Case cited not long ago in another great Case in this Court out of the Civil Law about Surprize but that was under another Head that is a Man was informed by his Kinsman that his Son was dead and so got him to settle his Estate upon him this is called in the Civil Law Surreptio I know not whether that Word will answer those Gentlemens Notions about this Matter Now the Civilians define that thus Surreptio est cum per falsam rei narrationem aliquod extorquetur when a Man will by false Suggestions prevail upon another to do that which otherwise he would not have done And I make no doubt but Equity ought to set aside that but then this is Properly called Fraud and that must be made out it can never be intended I find not any such thing pretended to be made out that my Lord of Bath did use any false Suggestions to the Duke or Informations at all for what appears in the Proof I beg Pardon if I mistake or forget any of the Proof Then here is Matter of a Surprize objected which must be something that will not avoid this Deed at Law but will avoid a Deed in Equity which yet is not direct Fraud or Falsehood in the Party but is to be gathered out of the particular Circumstances of the Case but what in certain to make of it I confess I cannot tell I would repeat the Words that the Plaintiffs Counsel used they say it is absurdly drawn it was unduly put upon the Duke 't was done without his perusing it or having it read to him it was contrary to his common Intention before and after the Sealing of it It must be admitted that there was Deliberation and Consideration and Intention enough proved to make it a good Deed at Law otherwise there would not have been a Verdict for it but it should seem there was not enough of these in Equity and the want of this is what they call Surprize and that must avoid this Deed in Equity But I confess I am not satisfied that there were any Surprize in this Case in any thing the Duke at the time of making this Deed was under no Force no Restraint no false Information as I observe no nor any Solicitation from my Lord of Bath at all he was in his own House at his full Liberty he was in very good Company for I take it for granted as I shall insist further by and by that Sir William Jones was by at the Execution of this Deed and a Witness to it the Duke was under no Sickness no Weakness and I must take notice of one Proof more which was mentioned he had not been drinking but was in very sober Company This appears to be the Condition in which the Duke was at the Sealing of the Deed in question But let us consider what are the Particulars of Surprize that they who oppose this Deed insist upon I think they are reducible to these three There was a want of collateral Circumstances that use to attend the Execution of Deeds made with good Deliberation and without Surprize Then there are some Observations made upon the wording of this Deed which argue Surprize and then they say it must be obtained surreptitiously because it is contrary to his constant Intention and all the Course of his Actings as well before as after that time First they say there is a want of Collateral Circumstances that are to attend the Execution of Deeds made with good Deliberation and without Surprize and that it appears in these Particulars First it doth not appear who drew this Deed It is certain they say that it could not be Sir William Jones and I think so too They observe and with very good Reason that he saying I approve of this Proviso doth prove that he did only concern himself with the Proviso and did apply himself singly to that and did not manage the Body of the Deed. Then it doth not appear that the Draught of this Deed was read or the Deed subsigned or countersigned by Counsel as was the Duke's usual Method nor was there any Counterpart of the Deed Whereas to the Will of 87 it was carefully drawn and made and three Parts of it prepared and then there were very great Persons concerned as Trustees in this Deed and yet several of them knew nothing of it To this I must acknowledg that the Objection is for the most part true but how far it is an Objection we shall consider farther by and by First for the want of Instructions about the drawing this Deed this is now above 10 Years before it comes in question and such Instructions there might have been but in length of time lost or laid aside and when once a Deed is actually made great Persons as well as lesser ones are careless of the Preparations for such Deeds the Deed binds the Estate and if that be carefully kept there may easily be a Negligence as to the rest I did observe before that though the particular Limitations in the first Will and this Deed do differ yet both Deed and Will do agree in Substance to settle the Bulk of the Estate to my Lord of Bath It is likewise observable that there is a strong Proof Sir Thomas Stringer drew this Deed for his Hand is interlined in every Sheet of the Draught and as I do remember his Son writ it Sir Thomas Stringer was at that time my Lord Duke's Counsel and I confess there have been reported several things about this Matter from his Mouth which because they are very various and inconsistent I wish he had been

this Will but in the Recital of it there are some Differences from what is in the Will it self some Variations from it In this Deed it is mentioned that the Intent and Design of the Deed was to dispose of the Estate according as was in the Will And whereas it might be thought strange that the Duke by his last Will which by that Deed he doth confirm and not intend to revoke should give away his Estate from the Heir at Law Therefore for the satisfaction of the World the Duke doth declare the Reason which hath been frequently mentioned and then the Deed disposeth of the Estate some to the Greenvills some to the Clarges but the Main and Bulk of the Estate he settled upon my Lord of Bath But in this Deed there is a Power of Revocation to this effect That it shall be lawful for the Duke at any time to revoke this Deed upon the tender of a Shilling by writing under Hand and Seal in the presence of six Witnesses whereof three to be Peers of the Realm and then to limit new Uses Then he makes his Will in the Year 1687 and therein he gives his Estate in a different manner that is the bulk and the main of it is given instead of my Lord of Bath to Mr. Monk whom he supposeth to be his Kinsman and desires that the Name and Title of Baron Monk may by the King's Favour be bestowed upon him in case he himself died without Issue Now the Question is whether or no this Will in 87 hath revoked this Deed made in 81 in Equity for there are but three Witnesses to this Will and not one of them a Peer so that in Law it is very plain it is no Revocation at all it cannot be a good Revocation there because the Power is not pursued the Circumstances are not observed here is neither the tender of a Shilling nor six Witnesses whereof three Peers nay not only so but here are but three Witnesses in all and not one of them a Peer I am of the same Opinion with my Lord Chief Justice of the Common Pleas and my Brother Powell that this is no Revocation in Equity and that there ought to be no relief had by the Devises of the Will of 87 against those that Claim by the Deed of 1681. These things are to be premised as granted and not to be questioned First That the VVill of 75 was a good VVill there is no manner of dispate to be made of that Secondly This Deed of Release that was made in 1681 is a very good Deed and there is no manner of dispute to be made of that neither for if there had not been a Verdict in the Case yet if they come to have the Opinion of a Court of Equity touching Relief in Equity against this Deed it ought to be taken to be a good Deed in Law or they were not to come hither for Relief against it And as this Deed is to be admitted to be a good Deed so in this Debate all those Circumstances that appear in the Depositions are to be admitted to be true in this Cause I do not say that they are never hereafter to be controverted but now upon this Debate they are to be admitted true As First That Sir William Jones his Hand is to the Perusal and Approbation of the Proviso and it is his VVriting Secondly That he was a VVitness to the Execution of this Deed. And Thirdly That this is true which Errington swears about the Abstract of this Deed made by Sir Thomas Stringer which being main Circumstances about the Deed and Controverted now must be taken for true in the Consideration of this Cause And then a third thing that is to be admitted without all Contradiction too is that this VVill of 87 is a good VVill. The Case standing thus and all these things being taken for granted the Question I say will be VVhether those that Claim by this VVill of 87 can have any Relief against those that Claim by the Deed of 81 And I think there ought to be no Relief but those that Claim by the Deed of 81 have a good Title in Equity as well as in Law I shall not mention any thing of the Evidence that hath been given or insisted upon to support the Deed nor now answer any of the Objections made against the Truth of it for I told you first I take it for granted that it is a good Deed and a true Deed without all dispute But to the intent I may comprehend all the Matters that I think are any way considerable and fit to be insisted upon I shall speak to four general Heads First I shall consider whether upon the Frame and Manner of this Deed of 81 there be any ground of Relief for the Plaintiffs against it Secondly VVhether there appears upon the Proofs and Depositions in this Cause that there was any undue way or manner of Obtaining this Deed from the Duke Or any Way or Contrivance or Management for the Contriving it in being afterwards which may produce a ground of Equity for the advantage of the Plaintiffs Thirdly I shall consider the Circumstances and Conditions of the Parties that are in this Cause those that Claim by the Deed of 81 and those that Claim by the VVill of 87 and whether upon that account there can be any Equity raised in this Cause And Fourthly I shall consider the Person of the Duke of Albemarle and the particular Circumstances he was under at the time of making this VVill in 87 and whether by reason of him from whom the Estate proceeds or the Circumstances he was under there will appear any ground of Equity in this Case The first Consideration I say shall be whether upon the Frame and Manner of this Deed there be any ground of Equity for the Plaintiffs against it There were several things under this Head that were insisted upon by the Counsel for the Plaintiff As First That this Deed of 81 doth partake of the Nature of a VVill because it recites a VVill and it is made to confirm a VVill and therefore shall be Revocable in a Court of Equity as a Will shall be in a Court of Law Secondly That it pretends to Recite the Will of 75 and there are several Mistakes in the Recital and very great Variations from it Thirdly That there are several Dispositions different from those in the Will which it pretends to confirm Now for the first To maintain that when a Deed recites a Will and doth say it self is made to confirm that Will therefore this Deed shall be Revocable in its Nature in Equity as a Will is at Law I must needs say is a Motion that I never heard started before I must confess I am apt to think with the Proceedings and Practice in Courts of Equity that may make it so strange to me it having been laboured with no small apprehended Clearness at the Bar. Therefore for that I

so you cannot imagine that the Duke was at all surprized therein but that when it was executed it was according to that design and purpose Next Sir Thomas Stringer who was the Duke's Counsel to Peruse and amend the Draught as appears by his own Hand sworn by his Son and his Man To imagine then that a Man should be surprized into the making of a Deed when his own constant Counsel doth Peruse and Amend the Draught and the Counsel he used particularly to advise with is by at the Execution and a Witness to it is to say a Man was surprized when he had the Advice of Counsel about it and they were at his Elbow at the Executing of it Now I must confess I am to seek and do not well know what is a Fraud in Equity that shall avoid a Deed which is a good Deed at Law The Case of Bodmin and Wynne and Roberts mentioned by my Lord Chief Justice and my Bother Powell that spake the last day this Cause came on is I think a Case of great Authority in a Court of Equity because it had a great Transaction both in this Court and in the House of Lords before it came to a Resolution and Result I shall put the Case in short as it was here in Court Mr. Roberts Son to the late Earl of Radnor married the Daughter of Mr. Bodmin Bodmin had made a Will and given his Lands to the Children of his Daughter in Tail and after this he makes another Will whereby he gave one part of that Estate to Mr. Wynne and another part to a remote Kinsman It did most plainly appear in the Depositions of this Case that this Will was obtained by great Fraud and Circumvention that is Wynne got into his Acquaintance by pretences of some little Offices of Friendship and Kindness he got him away from his Friends and Relations and during his Sickness he did by false Stories withdraw his Affection from his Daughter kept him in secret Places that no Friend might come at him and while he was so secreted and wrought upon was this last Will made whereby he gave his Estate away from his Child to a Stranger All these pieces of Practice were Apparent before the Court at the Hearing of this Cause which was heard by my Lord Clarendon Assisted by who all Unanimously Declared that this was a VVill obtained by Fraud and by Practice and that there was great Reason if they could to relieve against it But they searched Precedents and could find none that would come up to the Case Thereupon for difficulty there was Advice taken about it in the House of Lords and there upon Consideration was an Order made by way of Advice to the Lord Chancellor that he should proceed to do Justice to either Party though there were no Precedent found to govern the Judgment Afterwards this Cause came to be heard again 12 June 1666 when my Lord Chancellor being assisted by my Lord Chief Justice Bridgman my Lord Chief Baron Hales and Mr. Justice Raynsford did declare That there could be no Relief though it was said before it was apparently a VVill obtained by Fraud and this to the Prejudice of the Heir at Law who had never Offended or given him any Cause to Disinherit her So the VVill was dismissed but the Parties complaining in Parliament were Relieved by the Legislative Power by an Act of Parliament Now besides that there was Evidence of ill practice in that Case but in this I say I find none this is so great an Authority and does shew the wariness of a Court of Equity that I think none can be greater Equity would not relieve them but they were put to seek their Relief by a Law made on purpose But I will suppose now in this Case that when my Lord of Bath did understand the Kindness of Duke Christopher and knew of the Will of 75. and knowing the Incoastancy of the Duke's Temper and other Circumstances in the Family and the Revocableness of a Will should have applied himself to the Duke and told him ' It is true you have been so kind as by your Will to bequeath me a great part of your Estate but you may be prevailed with on a sudden or by some Artifice or other to alter this Will of yours and you may be surpriz'd into the doing of it pray will you make a more solemn Settlement to confirm this Kindness by a Deed And had prevailed to get him to do it Suppose I say he had done so tho I find no Evidence in this Case of any such thing suppose he had been employed in the whole transaction of such a Deed is this unlawful or is it any harm No it is very innocent he might lawfully do it and if he had opportunity he might prudently do it But I say I find not so much as that in this Case but this Deed was fairly obtained from the Duke whether it was by the advice desire or interposition of my Lord of Bath doth not appear or whether it were the Duke 's own voluntary Act though I think it is not material whether it was the one or the other But it hath been said That when Duke Christopher did design to alter his Will and for that purpose sent to my Lord of Bath to bring the Will of 75. which he had in his Custody my Lord of Bath should have told him of this Deed too And therefore the concealing of the Deed of 81. from D. Christopher is a kind of fraud and not making a discovery of it then he shall not now take advantage of this Slip and have the Estate by this Deed because if the Duke had considered the Proviso in the Deed he would have taken eftectual care to have had a good Revocation in all the Circumstances And that he did not so revoke it must be imputed to the concealment of this Deed from the Duke by the E. of Bath So was the Case of Mr. Clare at the Suit of the E. of Bedford which was opened the last Term. A Man that stands by and sees a Cheat which might have been prevented by his discovery shall not take advantage of his own wrong and profit by such concealment But doth it appear in this Case that my Lord of Bath knew to what purpose the Duke sent for his Will or how or in what manner he would alter the Settlement of his Estate Why must he be bound to take more notice of this Deed to the Duke than the Duke himself It was the Duke's own Act and not my Lord of Bath's and why should he give him notice of his own Act The Rule of Law when one is obliged to give notice to another is this When the thing lieth more in the Knowledg of the one than the other and he cannot come to the Knowledg but by his means But when one Man hath reason to know and doth as much as the other he is not bound to give notice