Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	court_n	defendant_n	plaintiff_n	5,340	5	10.3536	5	true

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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

Respect for him than to dispute such trivial Matters and for any Leases or Contracts they come within the Rule of Purchases and so the Consideration would preserve them Then they say Here is no Monument for the Duke a Person of so great Quality but that may be made good out of the personal Estate I am sure it is no Objection in point of Law But the last Thing they urge is If there be no Relief in this Case you put the greatest Indignity and Reproach upon the Duke that can be imagined That he should call Mr. Monk Cousin send for him out of Holland to leave his Will with him in the Will give him so great a Share of his Estate desire the King to make him a Baron and appoint his Son to be educated as one that was to make no small Figure in the World that he should send for my Lord Chief-Justice Pollexfen to draw this Will make three parts of it deliver one to the Dutchess of Newcastle another to Colonel Monk and carry a third with him into Jamaica and there take publick notice of it and after all this Expectation raised in Mr. Monk of a Fortune run himself into the Charges of an expensive but what he knew would be a fruitless Suit This say they is an unconceivable Dishonour to the Duke to be represented as one that would prevaricate so with the King and the World and play with the Misfortunes of his Kinsman and the rather because the Duke was a plain sincere hearted Man and in all this did but pursue his real Intentions of Kindness to Mr. Monk and his Children Truly methinks they have just as much to say on the other side What shall those many Declarations of Kindness to the Earl before this Deed in this Deed and after this Deed by Letters and other things signify his Care of my Lord Lansdown as one he was most concerned next to my Lord of Bath himself his Petitioning the King to confer on him the Title of Duke of Albemarle in case of his failing of Issue-Male and all this to signify nothing besides the known Kindred the apparent Obligations and Merit of my Lord of Bath sure if all this be considered the Duke's Honour is as much concerned on this side as on the other to approve himself sincere in all these Solemn Transactions Would he own him as his nearest Kinsman and the most deserving of his Blood and all the while have a secret purpose in the last Act of his Life to make a Will by which he would set aside all he had profess'd to do for him and by leaving this Deed and Will with him leave only so much in his hands as should put him into a chargeable Suit for nothing Therefore upon the whole I think there is greater reason to conclude that the Duke did not certainly mean to do this last Act as what he would have to stand against so much formerly done the other way But I rather think the Evidence is strong to perswade any one that the making of this last Will was to satisfie another purpose and make his own Condition easie at home But my Opinion as to the Judicial part of this Case which I thus happen to be of is the stronger in me because of the Authority of two Cases which I take to be express in Point and those are the Cases of Wynne and Roberts and Fry and Porter In the Case of Wynne and Roberts there was Proof of a very great surprize upon the Man whereby he was induced to make a Will and to disinherit his Child of whom he was before very fond and who was married into a very Honorable Family and to break a Settlement solemnly made before all this Matter was Charged in the Bill and proved But not withstanding this the Court declared they would give no Relief but if they could expect any they must go to Law and at last it was ended only by a Bill in Parliament The Court said Try it at Law a Will or no Will and do not expect the Chancery should make Mens Wills or set them aside if legally made especially then not upon bare Conjectures and Suppositions concerning a Man's intentions to relieve against a Solemn Act and Title found at Law In Fry and Porter's Case one of the great Reasons why the Court denied Relief there was that it was a Controversy between two voluntary Conveyances and there that Side that had the Advantage at Law ought to keep it and it was without Precedent to relieve in any such Case So say I in this Case we have no Precedent of Relief in any such as this now before Us We must not say this Court is unlimited unbounded by any Rules it is no doubt limited by Precedents and Practices of former times and it is dangerous to extend its Authority further If therefore I err in my Opinion in this Case I err with these Precedents on my Side and because I have never an one to guide me the other way the Desendants are in Possession of a Verdict Judgment and Title at Law and I can see no ground of Equity to relieve the Plaintiffs against them Then it being very late the Court put off the delivering of the Lord Chief Justice Holt's Opinion and the Lord Keeper's Decree till another Day Die Veneris 23 Decemb. 1693. In the Court of Chancery in Westminster-Hall Com. Mountague al. adv Com. Bathon al. e contra Lord-Chief-Justice HOLT IN this Case wherein the Earl of Mountague and the Dutchess of Albemarle and others are Plaintiffs and my Lord of Bath and others Defendants I shall open the Case very shortly as it stands upon the two Wills and upon the Deeds There was a Will made in the Year 1675 by Christopher Duke of Albemarle wherein there is a Disposition of several parts of his Estate upon his dying without Issue to several Persons but the main Part and Bulk of it is given to my Lord of Bath And in that Will there is mention made of a particular Esteem and Affection which the Duke bare to my Lord of Bath that he was the nearest of his Kinsmen by his Father's side and that he also was indebted to him for many great Acts of Friendship and Offices of Kindness performed to him and his Father Then there is in that Will also an express Desire that the Title of Duke of Albemarle by the King's Favour might be conferred upon the Earl of Bath and that the eldest Son of the Earl of Bath and so the eldest Son of the Family successively should be called Lord Monk so that the Names of Albemarle and Monk may with the King's Favour remain with his Estate in the Posterity and Family of my Lord of Bath in memory of the late Duke his Father and himself The Estate being so disposed of by the Will of 75 there are two Deeds made in the Year 1681 a Lease and a Release The Release doth recite

of Bath There have been several things insisted upon by the Councel for the Dutchess and Mr. Monk as grounds whereon they would found that Equity which should impeach this Deed of 81. I would mention them as I apprehend they were offered and I will as far as I can avoid being tedious or use unnecessary Repetitions of what has been already said First It has been offered That this Deed was obtained by Fraud and Surprize Secondly If it were Originally fairly obtained yet it was unduely secreted and concealed from the Duke that lie could not come to know the true contents of his Power or if it were not concealed yet it was utterly forgotten by the Duke which was the reason and occasion why sufficient care was not taken to execute the Power as it should have been Next That tho' the power of Revocation was not literally executed yet his intention appearing clearly to dispose of the Estate otherwise it ought to be supported in Equity Then That the Deed of 81. was but Ancillary that was the Phrase to the Will of 75. being agreed to be revok'd by the Will of 87. the Deed must fall with it Another thing was That what the Duke had done amounted to a Revocation Then That here was a General Trust and the Duke remained Owner of the Estate and might charge it as high as he pleased to the utmost value and so being absolute Master of the Estate his subsequent disposition of it by this last Will ought to be made good in Equity There are many things accumulated together and so make the better shew but it is belt to consider them severally if we would know the true weight of them It is true it is charged in the Bill That this Deed was obtained by Fraud and Surprize and that it was concealed from the Duke or forgotten by him and he had an intention to revoke and went as far as he could so that they are sufficiently let into this Matter by what is charged in the Bill But whosoever reads over the Depositions will see that the End they aimed at was to attack the Deeds themselves as false Deeds and not truly executed But that being tryed at Law and the Will and Deeds verified by a Verdict the Counsel have attempted to make use of the same Evidence and read it all or at least the greatest part of it as Evidence of Surprize and Circumvention But I think that ought to be well considered by the Court for we are not to found our Judgment upon that Evidence which if it be to be regarded at all did amount to more than what was insisted upon and which is positively contradicted by the Verdict As to Fraud and Circumvention it must be granted me that they are things not to be presumed It is all denied in the Answer and the Proof must be very clear if it be to be regarded by the Court. Now for this word Surprize it is a word of a general signification so general and so uncertain that it is impossible to fix it A Man is surprized in every rash and indiscreet Action or whatsoever is not done with so much Judgment and Consideration as it ought to be But I suppose the Gentlemen who use that word in this Case mean such Surprize as is attended and accompanied with Fraud and Circumvention Such a Surprize indeed may be a good ground to set aside a Deed so obtained in Equity and hath been so in all times but any other Surprize never was and I hope never will be because it will introduce such a wild Uncertainty in the Decrees and Judgments of the Court as will be of greater consequence than the Relief in any Case will answer for They say This Surprize was made out two ways by Matters that appear in the Deeds themselves and by Circumstances in Proof that arise out of the Deeds As to those Matters that appear in the Deeds themselves they urge First That it is expressed in the Deed of Release that it is made in corroboration of the Will which is misrecited throughout Then That it is imported to be for the confirmation of the Will when in effect it doth fully revoke it because there are no Limitations in the Deed but such as vary from those in the Will Then That it is for securing the Legacies in the Will and yet itself defeats the Will That as to a great part of the Estate the Deed limits it to my Lord of Bath after failure of Issue-male excluding the Daughters whereas in the Will that Limitation is after failure of Issue generally That the Provision in the Deed for the Third Son is ineffectual because the Duke had not power to settle it so That the Power of Revocation is unreasonably fettered and the Covenant whereby the Duke who was then very young is obliged not to revoke the Will is a derogatory and illegal Covenant And the unskilful Phrase and Language of the whole Conveyance must be a Demonstration that Sir William Jones was not imployed in it as is pretended These are the Objections to the Deed it self Now as to the Misrecitals as my Lord Ch. Justice has said they will have no insluence upon the Limitations because the Recitals in a Deed are not made the measure of the Limitations in it Besides as I apprehend here are none of these Misrecitals which are of that nature as to draw on the Duke into a Mistake in the favour of my Lord of Bath For the Recital that the Dutchess had a much greater Estate by the Will than she had before as the Limitation of Dalby and Broughton for Life when it was but during Widowhood this might lead the Duke indeed into a Mistake in favour of the Dutchess as it did and might have induced greater Limitations of the same kind but never to the Advantage of my Lord of Bath who was to come in remainder so that all the inference that can be made from those Misrecitals is only That Sir Tho. Stringer who it is apparent in Proof drew the Deed was a careless Man Then they say the Variation of the Limitations from those in the Will sheweth That it was to revoke the Will and not to confirm it As to that First Such Variation is a Proof That the Duke between the Time of the Will and the Time of the Deed had altered his Mind as to those particulars but to carry it further I see no reason in the World Next it hath been observed That the Words of the Deed which purport the end of it to be for confirming of the Will must plainly in reason infer to the principal design of the Settlement which was to dispose of his Estate to my Lord of Bath and the nearest of his Relations and not to refer to every particular Limitation in the Will and that it doth so confirm the Will as to the main principal Limitation in the Will is plain And it doth appear by the very phraseing of the

and that Mind continued till 81 and it appears by Letters as well before as since that Duke Christopher intrusted him in all his Affairs of Consequence acted not in any thing but with his assistance continually made use of his Friendship at Court to the time of his Death when he was dissatisfied with any of his Servants my Lord of Bath was the Man that must settle the matter when he was to Purchase my Lord Bath must buy for him when he was to sell my Lord of Bath was to transact the matter when he wanted Money my Lord was to procure it for him when he was in danger of losing Money my Lord is applied unto to prevent it All this appears by the several Letters that have been read and produced When he was gone to Jamaica and any Request at Court my Lord's Interest was that which he relied upon my Lord of Bath was the single Trustee to be applied to chiefly in what concerned the Estate the Keys of the Evidence-Room were to be deposited with him as being principally Concerned if he should miscarry Now it must be confessed a Man may do as much as all this comes to and make use of another Man's Friendship and not design to give him his Estate when he had once firmly setled it so and repeated his Assurance of Kindness and continued to make Profession of Kindness all along to the time of his Death and went on to make use of his Service because he thought he might freely command the Service of one who expected to have such Advantages from him yet then I do not see but that it must be admitted that he did deliberately design to impose upon my Lord of Bath or if he did not he did intend to impose upon my Lady Dutchess Now be it which it will I do think he is not to be excused in reference to the Point of Honour as to the Request made to the King for the Earl of Bath and in pursuance of Duke George his desire who engaged the late King to promise under his Sign Manual and he hath made the same kind of Request for Mr. Monk Now upon the whole Matter whether this VVill of 1687. was made to free him from some Importunities in his Family is a great Question There are some proofs in the Case that greatly look that way It is plain he did not execute it for several Months after it was prepared and drawn and when it was published it was obtained with great Importunity against his Inclinations at that Time and there doth not appear any Intention that it should revoke this Settlement but on the contrary it should seem he did not intend so for there are no VVitnesses called to the VVill but the same that came with Stringer from Newcastle House to that purpose But whether he did intend it should take Effect as to the Personal Estate only or to delude my Lord of Bath which way his Honour is best saved is not at all to our purpose to consider upon the Case before us in Judgment Though I must say take it one VVay or the other he seems to blame and to have dealt in some sort double The next thing insisted upon is That this Deed is revoked in Equity of this VVill and though the Power be not pursued in all the Circumstances yet his Intention appearing to make this different disposition of his Estate a Court of Equity should supply that defect Now I take it for granted that a Power of Revocation shall not be carried further in a Court of Equity than the Law will carry it The Law hath been liberal in expounding Powers of Revocation favourably and where the Law expounds a thing according to an equitable Construction there is no reason for Equity to extend it further Where there appear to be other equitable Considerations it may have another Judgment but if it stands without any mixture of other equitable Considerations I think it would be very hard to break through a Settlement especially so solemnly made that he thought fit to restrain himself from altering it without the Assistance of so many Noble Persons whenever he would make use of the Power thereby reserved to him I say it would be a very strange thing for a Court of Equity without the mixture of any other Considerations to assist another voluntary Conveyance against this The Case of Arundell and Philpot is a full Authority in this Case and it has been so often repeated that I need not mention it any further As to what was insisted upon by some about the Revocation being compleated as to the number of VVitnesses by the publication in Jamaica and the impossibility of having any Peers there I must confess had the Duke in Jamaica had an express deliberate Intention and Purpose to revoke and done any Acts to testify it and gone as far in pursuance of the Circumstances as his Condition in those parts would admit that might have come in within that Foundation of Equity to wit Accident But I think there is no ground of Proof of any such Intention or Action For the Proof amounts to no more than this The Duke to prevent any troublesom Applications to him shut up himself in his Room and those that came to him were to come in at the Window And a strong Box in which his Papers were standing under the Window by frequent trading upon it he had a Suspicion that there had been some Attempts to force and open it whereupon he calls for the Box to open it and out of it takes several Papers which he read or gave to Dr. Sloan to read several Letters as I remember and afterwards he took up a sealed Pacquet and said to the Doctor This is my Will and put it down again Is this any manner of proof in the World that this Act was done animo testandi Much less is it any proof that there was any notice taken at this time of this Settlement or that he would avoid it I would say something to that other Point that this being a Deed made to confirm and corroborate the Will of 75 is but Ancillary to the Will and depends upon it and is to stand or fall with it and upon the Revocation of that Will did fall with it This is an Objection wholly inconsistent with the other Arguments that are used against this Deed that it was by Surprize For by those Arguments they would destroy the Deed as inconsistent with the Will but now the Argument is turned the other way But my Lord Chief Justice Holt has so fully and clearly answered that matter that I shall not need to trouble you with saying any more in it The Cases cited about it are in no sort applicable to this Case The last thing insisted upon was supposing the Deed to stand good yet there being a general Trust raised in it to pay the Legacies in the Will my Lord of Bath was no more than a Trustee and the Duke continued Master of the Estate and he who had such a general Power to charge the Land might do it to the full Value and then consequently might dispose of the Land too Now this Point of Trust is the proper Subject of a Court of Equity but to expound a Deed which is made on purpose to prevent a Descent upon the Heir and then to make a general resulting Trust to let the Heir in is such a Construction as will apparently contradict it self and the Deed. But that will fall out to be a Point that comes to be considered hereafter how far this may be a Trust in my Lord of Bath to answer Legacies or Debts in case the Personal Estate should fall short it is not properly considerable now The only Point that was spoken to by the Counsel and left for the Judgment of the Court was this whether in this Case here were sufficient Matter for a Court of Equity to interpose so far as to set aside or impeach this Deed of 81. Now as to that Matter I think I have the Concurrence of my Lords the Judges in it and I am of Opinion that there doth not appear sufficient Ground upon this Case for a Court of Equity to do any such thing Therefore I declare my Judgment That as far as my Lord Mountague and my Lady Dutchess and Mr. Monk their Bills pray that the Court will interpose to set aside this Deed so far their Bills ought to dismiss'd As to any other Matters that arise in the Case I suppose there will be time taken to speak to them but this is the only Matter in Judgment before us at present FINIS