THE CASE OF THE Duke of NORFOLK Represented to the SVPREME JVDICATVRE of the KINGDOME the LORDS in PARLIAMENT HEnry Frederick late Earl of Arrundel by Deed in March 1647. Settles the Barony of Graystock on the Marquess of Dorchester and other Trustees to the use of himself and his Countess for their Lives then limits to the Trustees a Term of two Hundred Years in trust if Thomas his Eldest Son or any issue male of his Body be living at the Commencement of the Term to permit Henry and his Heirs Male to receive the Rents and profits thereof until such time as by the Death of his Eldest Son Thomas without issue Male or leaving his Wife Privement Enseint of a Son or by Failure of issue Male the Earldome of Arrundel descend to Henry and that upon descent of the Earldome to Henry the Trustees should permit Charles and the Heirs Males of his Body and for want of such issue Edward and the Heirs Males of his Body and likewise Francis and Bernard and the Heirs Males of their Bodies and for want of such issue the right Heirs of the said Henry Frederick to receive the Rents and profits of the Barony during all the Term of two Hundred years and then the Inheritance is limited to Henry Charles Edward Francis and Bernard successively in Tayle Male Remainder to the right Heirs of Henry Frederick Henry in 1675 having both the Trust of the Term and the Freehold and inheritance in him suffers a Recovery and bars all the Remainders and notwithstanding Thomas died in 1677. Henry continued in possession of the Barony of Graystock Henry by the Marriage agreement between himself and the Lady Ann Sister to the Duke of Beaufort was to Settle the Mannors of A.B. and C. of about 5000. l. per Annum value on the issue male of that marriage those Lands being sold the now Duke of Norfolk being the Eldest issue male of that Marriage brought his Bill in 1679 against Henry his Father to have a recompence of those Lands he should have settled and which he had sold away Henry proposeth in Lieu of those Lands to settle the Barony of Graystock and other Lands on the now Duke all not above the Value of one third of the Mannors that should have been settled by his Mothers Marriage agreement Hereupon the now Duke adviseth with Mr. Serjeant Maynard Sir William Jones and other eminent Councel whether Mr. Charles Howards pretence to the Barony of Graystock were good or not they all agree he had no Title to the Barony of Graystock and thereupon the now Duke accepts a conveyance from his Father in 1680. in Lieu of what should have come to him by his Mothers Marriage agreement so that the now Duke if Mr. Charles Howard be released must be undoubtedly defrauded of the Benefit of his Mothers marriage Agreement and this upon a compassionate presumption that Charles his Father intended this Barony for him upon Thomas his Death without issue and the Earldome Arrundel descending on Henry though contrary to all rules of Law and Equity This being the Case the same was heard by the late Lord Chancellor Nottingham assisted by the Lord Chief Justice of the Kings Bench the Lord Chief Justice of the Common Pleas and the Lord Chief Baron of the Exchecquer the three Chief Judges agreed in an Unanimous opinion that the Limitation of the Trust of the Term to Charles and the Heirs males of his Body after the same was limited to Henry and the Heirs Males of his Body and a dying without issue of Thomas was void and that the Limitation to Henry and the Heirs Males of his Body carried the whole trust of the Term notwithstanding the said three Chief Judges Opinion the Lord Chancellor Nottingham upon his own single Opinion decreed the Limitation to Charles good The now Duke of Norfolk brought his Bill of Reveiw to reverse this decree to which Mr. Charles Howard put in a Plea and Demurrer and the same coming to be argued before the now Lord Keeper the Lord Guilford he proposed that least it might be thought he lay under some prejudice in this Cause having delivered his Opinion formerly that the Remainder to Charles was void that a Case should be made and the opinion of all the Judges taken in it but that being rejected by Mr. Charles Howards Councel his Lordship proceeded to hear the Cause and reversed the decree It was agreed by all as well the Lord Nottingham as all the rest that heard this Cause that a Term cannot be limited to go in succession from one and Heirs Males of his Body to another and the Heirs Males of his Body but my Lord Chancellor Nottingham insisted that the Contingency of the Earldome of Arrundel coming to Henry being to happen within a Life that therefore that Limitation was good The Lord Keeper and the Lords the Judges insisted that limitation to Charles was void of a Term it not being to take effect till the Death of Thomas without issue and the Trust being in the mean time limited to Henry and the Heirs Males of his Body was a total disposition of the Trust of the Term and for this they relyed on the Authority of Child and Baylies Case adjudged in the Court of Kings Bench Hill 15º Jac. 1. and afterwards affirmed in a Writ of Error so that the Case was adjudged by ten of the twelve Judges The Case is this a Term of seventy years is devised to Dorothy for Life then to William and his assignes provided if William dye without issue then living then to Thomas another Son of the Devisors the Limitation over to Thomas in that Case was to happen within a Life as in our Case by the dying of William without issue in the Life time of Thomas yet there the Limitation being not to Thomas till the dying of William without issue it was held void because in intendment of Law that was a Limitation perpetual This Case the Lord Chancellor saith went on several reasons not to be found in our Case and then instanceth five 1. William having the Term to him and his Assigns there could be no Remainder to Thomas If so Henry in our Case had the term to him and his Heirs Ergo there could be no remainder to Charles 2. Dorothy there assented and granted to William that was by Will and an assent is there necessary Ours is by Deed and needs no assent 3. William might have assigned his interest and then no Remainder could take place Henry in our Case did absolutely destroy the Remainder 4. William might have had issiue and that issue might have assigned In our Case Thomas might have had issue and they might have survived Henry 5. The main Reason there was a further Limitation upon the death of Thomas without issue to go to the Daughter which was a plain affectation of a perpetuity to multiply contingencies In our Case there is four Limitations after the death of Charles who is in the place of Thomas in the other Case Viz. To Edward Francis Bernard and their respective Heirs Males and to the right Heirs of Henry Frederick so ours is so much more an affectation of a perpetuity as four is more than one and in truth my Lord Chancellor was mistaken in every one of the five instances and the Lord Chancellor said Child and Bailies Case is a single authority and had never any resolution like it That Case is cited in Love and Windhams Case and Grigg and Hopkins Case in Siderfins Reports and is allowed to be good Law in each of those Cases which allowance is equivalent to a new Judgment And now if this Court shall adjudge this Limitation to Charles good you will destroy the former Rules of Law and yet can never carry this Limitation according to the intent of the said Henry Frederick to each of his Sons and their Heirs males and the now Duke of Norfolk will be utterly defeated of all the recompence of his Mothers marriage Agreement 17 Junii,34 Car. 2 d. 15 Maii. 35. Car. 2 d.