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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A36820 The Duke of Norfolk's case, or, The doctrine of perpetuities fully set forth and explain'd 1688 (1688) Wing D2513; ESTC R17683 59,123 72

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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 Knight 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. Die Veneris 19 Junii 1685. AFter hearing Council two several days upon the Petition and Appeal of Charles Howard Esq shewing that his Father intended a Provision for his younger Children by Deed made by advice of eminent Council and did settle the Barony of Greystocke and other Lands of the value of 500 l. per annum in Trustees in order thereunto and that after a long Suit in Chancery wherein the Petitioner was Plaintiff against his Grace the late Duke of Norfolk the Marquess of Dorchester Henry Lord Mowbray and Richard Marriott Esq Defendants the Cause coming to be heard before the Lord Chancellor Nottingham on the 17th of June in the Four and Thirtieth Year of His late Majesties Reign of Glorious Memory who after several Days hearing did declare his Opinion to be That the Petitioner had a good Title to the Barony of Greystocke and other the Lands in question and Decreed the Defendants to account to him for the Profits thereof by them received after the Death of Thomas late Duke of Norfolk which Decree was signed and enrolled and the Petitioner actually vested in the Possession of the said Mannors and Premisses and further sheweth That the Defendants the late Duke of Norfolk the Lord Mowbray now Duke of Norfolk and Richard Marriott exhibited a Bill of Review into the High Court of Chancery for reversing the said Decree to which the Petitioner put in a Plea and Demurer which being argued on the 15th of May in the Five and Thirtieth Year of the Reign of our late King Charles the Second before the Right Honourable the Lord Keeper of the Great Seal of England who after hearing Council on both sides over-ruled the said Plea and Demurrer and reverst the Decree aforesaid and ordered a Writ or Writs of Restitution to be directed to the Sheriffs of Cumberland and Westmerland to put the Plaintiffs in the Bill of Review in Possession which accordingly was done as in the Petition amongst other things is suggested and prayed a Reversal of the last Decree as also upon the Answer of the Right Noble Henry Duke of Norfolk Earl Marshal of England and Richard Marriot Esq put in thereunto And after due Consideration had of what was offered at the Bar by Council on either part thereupon IT is ordered and adjudged by the Lords Spiritual and Temporal in Parliament assembled That the said Decree made in the High Court of Chancery on the 15th of May in the Five and Thirtieth Year of the Reign of the late King Charles the Second of Glorious Memory in behalf of the late Duke of Norfolk and the now Duke of Norfolk and Richard Marriott Esq be and is hereby reversed and that the Decree made in the said Court of Chancery on the 17th of June in the Four and Thirtieth Year of His late Majesties Reign in behalf of Charles Howard Esq the now Petitioner Be and Is hereby affirmed JOHN BROWNE Cler. Parl. FINIS
THE Duke of Norfolk's CASE OR THE DOCTRINE OF PERPETUITIES Fully set forth and Explain'd Printed Anno Dom 1688. TO THE READER Courteous Reader THis Case in all its parts hath been Collected with all the Care imaginable by several good Hands and what grand agitation it received is not unknown to any that know Westminster-Hall It may be recommended to the World for Publick use upon that score alone For what can be more reasonably thought to please and take with Men of Judgment in any Profession than to peruse the Skill and Arts that have been curiously and with as great integrity made use of by men of the most Famous Reputation in what they profess Besides too if thou dost but consider the great Deliberations and the mighty Cautions that have been always used by all Persons concern'd in the Conduct Debate and Judgment of this Cause till after many Debates and Hearings at the Bar it came to receive its final Judgment in the highest Court of the Kingdom before the Lords in Parliament assisted by all the Judges of England Thou wilt certainly conclude That no unkind acceptance ought to demur upon this Case Here is variety of Learning manifest in the sundry Conceptions of Great and Learned Men but the Nicety lies chiefly upon the Doctrine and Explication of that abstruse Notion in Law called Perpetuities concerning which the Sage Opinions introductive to this Case of the great Council will better instruct thee that were prudently taken by both Parties before the Cause commenc'd and undoubtedly serve and answer the True Ends of a Preface infinitely beyond what thou canst expect from me Their Opinions in Private are always delivered with as much Candour and Caution as their Arguments at the Bar. And the one may be truly said to be of as great use to the Publick when their Opinions can be had if the Cause be Meritorious and will bear it as the other Reader it will be wholly impertinent to hold thee here and I should run my self upon an absolute necessity if I should detain thee longer from the fruition of those delicacies I present thee of troubling thee with my impertinent Complements for presenting thee with a needless and impertinent Epistle Wherefore enter in see it thy self and peruse it for thy profit and satisfaction Farewell THE Duke of Norfolk's CASE A. Bargains and Sells to L. the Barronies of Gr. and 20 Martii 1647. Br. for 10 Months A. Grants the Reversion of those Baronies to 21 Martii 1647. R. and D. and their Heirs to the use of A. for life Remainder to E. the Wife of A. for life Remainder to R. and D. c. for 200 years upon trusts to be declared by another Deed of the same date Remainder to H. H. his second Son and the Heirs Males of his body Remainder to C. H. his third Son and the Heirs Males of his body Remainder to E. H. his fifth Son and the Heirs Males of his body Remainder to A. H. his sixth Son and the Heirs Males of his body Remainder to B. H. and the Heirs Males of his body Remainder to the right Heirs of A. L. Attornes Tenant to R. and D. c. A. makes another Deed declaring the Trust of the Term 21 Martii 1647. for 200 years reciting it and the uses in the last-mentioned Settlement says in the reciting part That 't is intended that the Term should attend the Inheritance the Profits be received by H. H. and the Heirs Males of his body and for default of such Issue such other persons who according to the limitation of Uses should have had them if no such term had been so long as T. H. Eldest son of A. or any Issue Male of his body shall live But in case T. H. die without Issue of his body in the life of H. H. not leaving his Wife ensient with a Son or that after the death of E. H. by failure of Issue Male of T. H. the honour of A. should descend on H. H. then H. H. and his Heirs to be excluded of the Trust then the Indenture witnesseth that the Term shall be upon the Trusts and under the restrained Limitations and Proviso's after-mentioned viz. If T. H. or any Issue Male of his body be living in trust for H. H. and the Heirs Males of his body until by the death of T. H. without Issue Male and not leaving his Wife ensient with a Son or after his death by failure of Issue Male the honour of A. descends to H. H. and in case the Honour shall not descend to H. H. that after the death of H. H. the Trust shall be for the Heirs Males of H. H. and for default of such Issue in trust to permit such other persons and their Issue Male respectively to whom the Free-hold or Inheritance is limited by the former Deeds to take the profits as if no such Lease were And in case the Honour of A. descend upon H. H. then the Trust for H. H. and his Issue Male to cease And then as to the Barony of Gr. in trust for T. H. and the Heirs Males of his body Remainder to T. H. and the Heirs Males of his body Remainder to F. H. and the Heirs Males of his body Remainder to B. H. and the Heirs Males of his body Remainder to H. H. and the Heirs Males of his body Remainder to the right Heirs of A. the Father And as to the Barony of Br. as to one third part of it in trust for E. H. and the Heirs Males of his body Remainder to F. H. and the Heirs Males of his body Remainder to B. H. and the Heirs Males of his body Remainder to T. H. and the Heirs Males of his body Remainder to H. H. and the Heirs Males of his body Remainder to the right Heirs of A. And as to another third part of the Barony in trust for F. H. and the Heirs Males of his body with like Remainders to the other Brothers ut supra Remainders to the right Heirs of A. And as to the other third part in trust for B. H. and the Heirs Males of his body with the like Remainders to the rest of the Brothers ut supra A. died in 1652. E. the Wife of A. died in 1673. and then the term of 200 years commenced D. the surviving Trustee at the request of H. H. assigned 20 Novemb. 1675. the term to one Marriot Marriot assigned the term to H. H. 1 Dec. 1675 H. H. by Bargain and Sale enrolled sells to M. to make him 24 Octob. 1675. Tenant to the Precipe for suffering a Recovery The use of the Recovery declared to be to H. H. and his 25 Octob. 1675. Heirs T. H. the eldest Son of A. died without Issue or having ever Nov. 1677. been married Query If the Trust to H. H. be good and the other Trusts limited to the other Brothers on the Contingent in case T. H. died whereby