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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

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