Selected quad for the lemma: england_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	earl_n	lord_n	sir_n	21,670	5	6.9416	4	true

Text snippets containing the quad

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

of any previous Direction for drawing of this Deed there is no Proof of the Draught or Deed 's being read to the Duke no Counterpart was executed The Trustees were not acquainted with it there was an Estate limited to Sir Thomas Clarges when there were great differences between the Duke and him it is not subscribed by the Duke's Counsel as all Deeds executed by him used to be that it was ingrossed according to the Draught and that in a very material place for if it had been according to the Draught the Duke had been Master of the Estate by a general Trust and if it were not perused by Sir William Jones or he was not a Witness to it then so far as Sir William Jones was surprized in the matter the Duke was so too Now as to the want of Proof of any previous Directions for this Deed that is not strange after such a length of time Sir Thomas Stringer who drew it dead four of the Witnesses to the Execution of it are dead too But the presumption is very strong when the Draught is of Sir Thomas Stringer's Son's Hand-writing and corrected and interlined by his own hand in several places that he had Orders and Directions from the Duke to prepare such a Deed. The Reading or not Reading the Deed to the Duke doth not appear it might be read to him before and it was not necessary it should be read to him at the time of the Executing if it were then the Will of 87 lies open to the same Objection for that was not read to the Duke when he sealed it As to that Objection that there was no Counterpart nor the Trustees acquainted with it that can be nothing of an Objection for the Deed remained in the Duke's hands till a little time before his going to Jamaica as appears by my Lord of Bath's Answer which hath not been falsified as I know of in any point nor was there any Occasion to give Notice to the Trustees becau●e th●re was no manner of Estate or Trust lodged in them But my Lord of Bath was the only Person that had any Trust in him by the Deed therefore there was no Reason that it should be known to any one but him And the Nature of the thing and all the Proofs shew that it was intended to be concealed Then as to the Story of Sir Tho. Clarges and the Differences between the Duke and him there is no Proof of it It is at most but an Hear-say testified by one Witness That it was not Subscribed by the Duke's Counsel as all his Deeds usually were it seems to me to be of no very great Weight when the Draught appears under Sir Thomas Stringer's Son's Hand interlined and corrected by himself and Sir William Jones a Witness to the Execution and present when it was compleated Sure that can never signifie any thing As to the other Observation that was made that the Deed was not Ingrost according to the Draught and the Variation is in so Material a part as to make the Duke Master or not Master of the Estate it should be considered First That upon view of the Draught it is plain Words have been cut off and there is a positive Witness who swears That he twice Ingrost the Deed by the Draught It is possible that a Man may twice leave out the same Words in Ingrossing a Deed by a Draught But that he should twice add the same Words that were not in the Draught is very strange and not easily to be believed Then say they This is not the Draught that was first perased and approved of by Sir William Jones That is certainly such an Objection as never was made before and indeed it is likely there never was Occasion to make such an Objection till the last Hearing for it may be it was not cut till then But pray let it be considered for whose Interest it was to have this Draught cut or altered from the Ingrossment It is impossible it should be cut off for the Interest of my Lord of Bath by the Objection that ariseth from it for let any Words in Nature have been there they could not have been of such Disadvantage as they would have it to be However be the alteration of the Draught what it will if it were not done by the Defendants nor was for their Interest to be done nor done before the Execution of the Deed it all signifieth nothing But I think it is fit and proper here to say something to that Notion that where the Counsel is surprized that is a surprize upon the Client I take that to be a matter of a very great Consequence and I fear it would shake most of the Settlements of Estates in England and for that I would mention the Case of Sir James Herbert and the late Lord of Pembroke There was a Bill brought in this Court to set aside the Will of the Elder Brother who was the late Earl of Pembroke but two Sir James was Heir at Law and the other was but half Brother That Earl had taken a Displeasure at his Brother and sent Directions to Mr. Swanton to draw a Will and Settlement of his Estate and amongst other things orders to be sure that the Brother should have no power over the Estate to dispose of it because that in his Grandfather's Will there was such a Settlement as he liked of he sends him that Swanton makes a Will and limits an Estate to Sir Philip Herbert the Brother for life and the remainder to the Heirs of his Body This Will is brought by the Counsel to the Earl and read and Executed and held to be Good yet this was a Notorious Surprize upon the Counsel for nothing is plainer than that the Counsel had made a Mistake or knew not the Law He did not at best consider that upon such a Limitation the Law uses the whole Estate Tale in him and he may dispose of it It is plain he had not pursued the Will of the Grandfather but yet when this Cause came to be heard before my Lord North when the Will appeared to have been truly executed the Court declared it was a Misfortune that they did not go to a better Counsel And it was sent to Law to try whether it was the Will of the Earl of Pembroke or no and it being found to be the Earl's Will the Bill was dismist with Costs Thus I have taken Notice of what has been offered to prove the Surprize I would shortly mention on the other side what hath been insisted upon to shew that there was nothing like Surprize but all was done upon a very good ground and pursuant to a setled full purpose continued for so long a tract of time to the Duke's death First Say they It doth appear there were a very near Relation between my Lord Duke and my Lord of Bath and that Duke George owned and owed his first setting out in the world to the Ancestors

to revoke and his intention is known but he is prevented by a particular Accident and surprized when his design was so to do but he could not perform that design as by reason of Sickness or that it was to be done in a place whither he could not go If any Accident obstruct that Intention it shall be lookt upon as good and shall prevail But now in this Case of the Duke of Albemarle it doth not appear that he had any such intention of executing his Power It is true he made his Will which is a quite contrary disposition of his Estate That is an Evidence of his intention to make a new Will but not to revoke this Deed He was no way hindred by any accident or irremovable Impediment from executing the Power according to the Circumstances He was in the place where best of all throughout England he might have had three Peers to be Witnesses of it The Will was executed in London at Sir Robert Clayton's House and there were then two Peers in the House Therefore since he had an Opportunity to have done it well and would not do it this can never be construed a good Revocation in a Court of Equity And I think truly that any such Construction would induce many Absurdities For First It is to set up a power in a Court of Equity in direct opposition to the Courts of Law and so let a Man loose in Equity for no other reason but because he hath restrained himself at Law by a Law of his own making Secondly It is as much as to say That because a Man my dispose of his Estate one way by Law therefore in a Court of Equity he shall dispose of his Estate any way That is a very strange but a true consequence of this Doctrine because a Man settles his Estate such a way with such a Power to alter it in such circumstances therefore he shall do it any way At this rate Tenant in Taile may dispose of his Estate without a Fine in Equity because he might have done it at Law with a Fine for the same Equity there is in both Cases So a Copy-holder of Inheritance may in Equity dispose of his Estate without a Surrender because he might do it at Law by a Surrender Thirdly It were to enable a Man to give away more then he hath in him for he has no more in him than what is according to the Power he reserved to himself And Fourthly 't is to frustrate the intent and design of all Settlements whatsoever so that I think there is no reason at all for this Court to let a man loose that has thus restrained himself unless there be some special reason in the particular Case for the sake of which a Man ought to have his Case vary from the ordinary Rules Then let us consider next the Circumstances that the Duke was under at the time of making this Will you that are for the Plaintiff say that he had forgotten this Deed and therefore it being an old and forgotten Deed it shall not have any regard in a Court of Equity it not being taken any notice of by the Party himself First I pray consider whether the Evidence doth not prove the quite contrary it was a Settlement made very solemnly it is very well attested by six Witnesses Persons of Consideration it was done with deliberation and done but in 81. the Will is in 87. It is not to be presumed that the Duke did or could forget a Setlement so solemnly and deliberately executed I say it is hard to presume it but rather the contrary that he did not forget it Besides tho' he had forgot it Sir Thomas Stringer who was so instrumental about this Will had not forgot it for he made an Abstract of it about that time with the very date in it And I take it the memory of the Counsel in such a Case is the memory of the Client Suppose a Man be to make a purchase and he carrieth the Deeds of the Title to Counsel and he espieth a Trust in the Deed and acquaints his Client and yet he will purchase shall Equity relieve It may be the Counsel overseeth this Trust and the Purchaser is called to account about it says he I had no notice I knew nothing of any such Trust I am a Purchaser for a valuable Consideration and it ought not to affect me But then they come and prove that the Deeds of the Title were carried to Counsel they saw this Trust or had an opportunity to see it Then I take it notice to the Counsel is notice to the Client and the Man that paid the money must lose the Estate So here Sir Thomas Stringer's memory is the Duke's memory But pray how comes it to pass that forgetting of a Deed is a ground to revoke it in Equity must the goodness and validity of a Deed depend upon the memory of him that made it Memory is slippery but a Deed is permanent and made to abide for ever Because Men are apt to forget what they have done therefore shall their Deeds have no more effect in a Court of Equity than if they had never been done at all This I confess is very new and strange Doctrine to me when a thing once comes to be put into Writing we say it is never forgotten Litera Scripta manet But then truly they say it is inconsistent with the Honour of the Duke of Albemarle that he should make this stir and do about his Will and pretend such kindness to Mr. Monk and desire a Title of Honour for him and yet not intend to revoke this Settlement that stood in the way The others they say how is it consistent with the Duke's Honour to intend to revoke it when there was such a friendship between the Duke and the Earl so many Services and Obligations performed by the Earl such a Trust and Confidence reposed in him even to the last as it is plain there was How comes this to pass but so it is they are Acts very much inconsistent I confess But for persons Honours in judging of Causes we have nothing at all to do with them For my part I see no reason in the World that the Duke had to alter his mind as to my Lord of Bath there is no appearance of any unkindness or displeasure conceived by the Duke against the Earl but an intire Trust and Confidence to the very last as is evident by the Order of the Keys of the Evidence-Room to be delivered to him when he went away and to consult with him upon all occasions But withal I do not know what the meaning of this should be if he really intended any effect as to the Will of 87 which without all question is well proved and were it not for this Deed would be a good disposition of the Estate Yet tho' it doth contradict the Deed of 81 I cannot but take that to be a very good Deed and not