Selected quad for the lemma: child_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
child_n	sir_n	thomas_n	william_n	8,060	5	10.2909	5	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A52524	The arguments of the Right Honourable, the late Lord Chancellor Nottingham upon which he made the decree in the cause between the Honourable Charles Howard esq., plaintiff : Henry, late Duke of Norfolk, Henry Lord Mowbrey his son, Henry Marquess of Dorchester and Richard Marriott, esq.: defendants : wherein the several wayes and methods of limiting the trust of a term for years, are fully debated.	England and Wales. Court of Chancery.; Nottingham, Heneage Finch, Earl of, 1621-1682.; Howard, Charles, d. 1713.; Norfolk, Henry Howard, Duke of, 1628-1684.	1685 (1685)	Wing N1402; ESTC R30748	19,382	38

Justice Jones Mr. Justice Crooke and Mr. Justice Berkley as Wood and Saunders Case was by my Lord Keeper Bridgeman Mr. Justice Twisden and Mr. Justice Rainsford so that however I may seem to be single in my Opinion having the misfortune to differ from the three Learned Judges who assisted me yet I take my self to be supported by seven Opinions in these two Cases I have cited If then this be so that here is a Conveyance made which breaks no Rules of Law introduceth no visible Inconvenience favours not of a Perpetuity tends to no ill Example why this should be void onely because it is a Lease for years there is no sence in that Now if Charles Howards Estate be good in Law it is ten times better in Equity For it is worth the considering that this Limitation upon this Contingency hapning as it hath God be thanked was the considerate Desire of the Family the Circumstances whereof required Consideration and this Settlement was the result of it made with the best Advice they could procure and is as prudent a provision as could be made For the Son now to tell his Father that the provision that he had made for his younger Brother is void is hard in any Case at Law but it is much harder in Chancery for there no Conveyance is ever to be set aside where it can be supported by a reasonable Construction and here must be an unreasonable one to overthrow it I take it then to be good both in Law and Equity and if I could alter my Opinion I would not be ashamed to retract it for I am as other men are and have my partialities as other men have When all this is done I am at the Bar desired to consider further of this Case I would do so if I could justifie it but Expedition is as much the right of the Subject as Justice is and I am bound by Magna Charta Nulli negari nulli differre Justitiam I have taken as much pains and time as I could to be informed I cannot help it if wiser men than I be of another Opinion but every man must be saved by his own Faith and I must discharge my own Conscience I have made several Decrees since I have had the Honour to sit in this place which have been reversed in another place and yet I was not ashamed to make them nor sorry when they were reversed by others And I assure you I shall not be sorry if this Decree which I do make in this Case be reversed too yet I am obliged to pronounce it by my Oath and by my Conscience For I cannot adjourn a Case for difficulty out of an English Court of Equity into the Parliament there never was an Ajournment Propter Difficultatem but out of a Court of Law where the proceedings are in Latin The proceedings here upon Record are in English and can no way now come into Parliment but by way of appeal to redress the Error in the Decree I know I am very likely to erre for I pretend not to be Infallible but that is a thing I cannot help Upon the whole matter I am under a Constraint and under an Obligation which I cannot resist A man behaves himself very ill in such a place as this that he needs to make Apologies for what he does I will not do it I must Decree for the Plaintiff in this Case and my Decree is this That the Plaintiff shall enjoy this Barony for the residue of the Term of two hundred years the Defendant shall make him a Conveyance accordingly because he extinguished the Trust in the other and the Term contrary to both Law and Reason by the Merger and Surrender and common Recovery And that the Defendants do account with the Plaintiff for the profits of the premisses by them or any of them received since the Death of the said Duke Thomas and which they or any of them might have received without wilful default and that it be referred to Sir Lacon William Child Kt. one of the Masters of this Court to take the said Accompt and to make unto the Defendants all just allowances and what the said Master shall certifie due the said Defendants are to pay unto the Plaintiffs according to the Masters Report herein to be made And that the Defendants shall forthwith deliver the possession of the Premisses to the Plaintiff and that the Plaintiff shall hold and enjoy the said Barony of Greystock with the Lands and Tenements thereto belonging for the residue of the said Term of two hundred years against the Defendants and all claiming by from or under them And it is further Ordered and Decreed that the said Defendants do Seal and Execute such a Conveyance of the said Term to the Plaintiff as the Master shall approve of in case the parties cannot agree the same but the Defendants are not to pay any costs of the Suit FINIS The Reader is desired to Correct these errors of the Press PAge 3. line 8. read Dignity p. 8. l. 33. read preliminaries p. 10. l. 3. in marg read Co. 6. 40. p. 19. l. ult after Rainsford read and Judge Wild. p. 24. l. 10. read I can Modern Reports 115. Modern Reports 115. Roll. abr tit devise 612. Co. ● 156. Co. 10. 87. Cro. Mich. 18 Jac. 590. 3 Leonard 64. Dyer fol. 74. Dyer f. 277. Dyer f. 328. Dyer f. 358. Cro. Hil. 15 Jac. 459. Roll. abr tit Devise 612.

it had been a void limitation to Charles if then the addition of those words If Thomas dye without Issue in the life of Henry c. have not mended the matter then all that addition of Words goes for nothing which it is unreasonable and absurd to think it should 3. Another thing there is which I take to be unanswerable and I gather it from what fell from my Lord Chief Justice Pemberton and when I can answer that Case I shall be able to answer my self very much for that which I am doing Suppose the Provisoe had been thus penned And if Thomas dye without Issue Male living Henry so that the Earldome of Arundel descend upon Henry then the term of 200 Years limited to him and his Issue shall utterly cease and determine but then a new Term of 200 Years shall arise and be limited to the same Trustees for the Benefit of Charles in Tail This he thinks might have been well enough and attained the end and intention of the Family because then this would not be a Remainder in Tail upon a Tail but a new Term created Pray let us so resolve Cases here that they may stand with the reason of mankind when they are debated abroad Shall that be reason here that is not reason in any part of the World besides I would fain know the difference why I may not raise a new springing Trust upon the same Term as well as a new springing Term upon the same Trust that is such a chicanery of Law as will be laught at all over the Christian World 4. Another Reason I go on is this That the meanness of the consideration of a Term for years and of a Chattel Interest is not to be regarded for whereas this will be no reason any where else so I shall shew you that this Reason as to the Remainder of a Chattel Interest is a Reason that has been exploded our of Westminster-Hall There was a time indeed that this Reason did so far prevail that all the Judges in the time of my Lord Chancellor Rich did 6 Edvardi 6. deliver their Opinions That if a Term for Years be devised to one provided that if the Devisee dye living J. S. then to go to J. S. that remainder to J. S. is absolutely void because such a Chattel Interest of a Term for Years is less than a Term for Life and the Law will endure no limitation over Now this being a Reason against Sense and Nature the World was not long governed by it but in 10 Eliz. in Dyer they began to hold the Remainder was good by Devise and so 15 Eliz. seems too and 19 Eliz. it was by the Judges held to be a good Remander and that was the first time that an executory Remainder of a Term was held to be good When the Chancery did begin to see that the Judges of the Law did govern themselves by the reason of the thing this Court followed their Opinion the better to fix them in it they allowed of Bills by the remainder Man to compel the Devisee of the particular Estate to put in security that he in Remainder should enjoy it according to the Limitation And for a great while so the practice stood as they thought it might well because of the Resolution of the Judges as we have shewn but after this was seen to multiply the Chancery Suits then they began to resolve that there was no need of that way but the executory Remainder Man should enjoy it and the Devisee of the particular Estate should have no power to bar it Men began to presume upon the Judges then and thought if it were good as to Remainders after Estates for Lives it would be good also as to Remainders upon Estates Tail That the Judges would not endure and that is so fixed a Resolution that no Court of Law or Equity ever attempted to break in the World Now then come we to this Case and if so be where it does not tend to a perpetuity a Chattel Interest will bear a Remainder over upon the same Reason it will bear a Remainder over upon a Contingency where that Contingency doth wear out within the compass of a life otherwise it is only to say it shall not because it shall not For there is no more inconvenience in the one than in the other Come we then at last to that which seems most to choak the Plaintiffs Title to this Term and that is the resolution in Child and Baylie's Case For it is upon that Judgment it seems all Conveyances must stand or be shaken and our Decrees made Now therefore I will take the liberty to see what that Case is and how far the Opinion of it ought to prevail in our Case 1. If Child and Baylie's Case be no more than as it is reported by Rolls part 2. fol. 129. then it is nothing to the purpose A Devise of a Term to Dorothy for life the remainder to William and if he dyes without Issue to Thomas without saying in the life of Thomas and so it is within the common Rule of a Limitation of a Term in Tail with Remainder over which cannot be good But if it be as Justice Jones has reported it fol. 15. then it is as far as it can go an Authority for it is there said to be living Thomas But the Case under favour is not altogether as Mr. Justice Jones hath reported it neither for I have seen a Copy of the Record upon this account and by the way no Book of Law is so ill corrected or so ill printed as that The true Case is as it is reported by Mr. Justice Crook and with Mr. Justice Crooks Report of it doth my Lord Rolls agree in his abridgment Title Devise 612. There it is a Term of 76 Years is devised to Dorothy for Life then to William and his Assigns all the rest of the Term provided if William dye without Issue then living then to Thomas and this is in effect our present Case I agree it But that which I have to say to this Case is First It must be observed that the Resolution there did go upon several Reasons which are not to be found in this Case 1. One Reason was touched upon by my Lord Chief Baron That William having the Term to him and his Assigns there could be no Remainder over to Thomas of which Words there is no notice taken by Mr. Justice Jones 2. Dorothy the Devisee for life was Executrix and did assent and grant the Lease to William both which Reasons my Lord Rolls doth lay hold upon as material to govern the Case 3. William might have assigned his Interest and then no Remainder could take place for the Term was gone 4. He might have had Issue and that Issue might have assigned and then it had put all out of doubt 5. But the main Reason of all which makes me oppose it ariseth out of the Record and