discerned there was the same reason for after twenty mens lives as after one and so then it was held and agreed that so long as the Limitation exceeded not Lives in being at the creation of the Estate it should extend so far That came to grow upon them then and now if this be admitted no man can foresee what an ill Effect such an ill Allowance might have there might such Limitations come in as would incumber Estates and mightily entangle Lands This is certain such an allowed Limitation would adde a greater check to Estates than ever was made by Limitations of Inheritance For when an Estate of Inheritance was limited to a man and his Heirs Males of his body with Remainders over and a Term was limited accordingly to wait upon the Inheritance In that Case he that had the first Estate-tail had full power over the Term to alienate it if he pleased for it is not an Estate within the Statute De Dominis and I doubt not that had a great Influence upon the Judges when they made the difference between Terms for years in Gross and Terms attendant upon the Inheritance For Terms in Gross they could not be aliened in such a Case but Terms attending upon the Inheritance though under such Limitations the parties could alien them But now if this Limitation in question were good then Henry could not part with it because it is to him and his Heirs Males of his body under a collateral Limitation of his brothers dying without Issue and the Earldom descending to himself and then his Estate was to determine and so it would fetter that which if it had been a Term attendant c. would have been alienable I have seen the time often when they have refused to carry Cases further than the Precedents have been in former times and peradventure it would be dangerous if we should do so here and it seems to me to be an odd kind of Estate as this Limitation makes it and if such a construction as the Plaintiff would have should be made it would bring it under a great uncertainty To take this Estate as it stands in Henry and the Heirs Males of his body it is by this Limitation made and so indeed I think it is a Term that waits upon the Inheritance But if this that is contended for be admitted to be a good Limitation upon the Contingency of Thomas's dying without Issue Male then the Estate in Charles would be a Term in Gross for it hath no Inheritance to attend upon Then suppose Henry had died without Issue Male in Charles's life-time then it is a Term attendant upon the Inheritance again If Charles die in the life of Henry it goeth to the Executors If Henry in the life of Charles it goes to the Heirs Therefore I think that this Estate being limited in another way and being it would endure a strain further than any yet has been attempted and it being to commence upon Thomas's dying without Issue Male and not attendant upon any Inheritance it is such an Estate as the Law cannot allow of but void in Limitation and Creation and so I take it the Plaintiffs Bill ought to be dismissed THE Lord Chancellor NOTTINGHAM'S ARGUMENTS The First Argument THIS is the Case The Plaintiff by his Bill demands the benefit of a Term for two hundred Years in the Barony of Greystocke upon these settlements Henry Fredericke late Earl of Arundel and Surry Father of the Plaintiff and Defendant had Issue Thomas Henry Charles Edward Francis and Bernard and a Daughter the Lady Katharine Thomas Lord Maltravers his eldest Son was Non compos Mentis and care is taken to settle the Estate and Family as well as the present circumstances will admit And thereupon there are two Indentures drawn and they are both of the same date The one is an Indenture between the Earl of Arundel of the one part and the Duke of Richmond the Marquess of Dorchester Edward Lord Howard of Eastcricke and Sir Thomas Hatton of the other part it bears date the Twenty first day of March 1647. Whereby an Estate is conveyed to them and their Heirs To these uses To the use of the Earl for his life After that to the Countess his Wife for her life with power to make a Lease for 21. Years reserving the antient Rents The remainder for 200. Years to those Trustees and that upon such trusts as by another Indenture intended to bear date the same day the Earl should limit and declare and then the remainder of the Lands are to the use of Henry and the Heirs Males of his Body begotten with like remainders in Tail to Charles Edward and the other Brothers successively Then comes the other Indenture which was to declare the Trust of the Term for 200 Years for which all these preparations are made and that declares that it was intended this Term should attend the Inheritance and that the profits of the said Barony c. should be received by the said Henry Howard and the Heirs Males of his Body so long as Thomas and any Issue Male of his Body should live which was consequently only during his own life because he was never likely to Marry and if he dye without Issue in the life-time of Henry not leaving a Wife privement Enseint of a Son or if after his death the Dignity of Earl of Arundel should descend upon Henry Then Henry or his Issue should have no farther benefit or profit of the Term of 200 Years Who then shall But the benefit shall redound to the younger Brothers in manner following How is that To Charles and the Heirs Males of his Body with the like Remainders in Tail to the rest Thus is the matter settled by these Indentures how this Family was to be provided for and the whole Estate govern'd for the time to come These Indentures are both sealed and delivered in the presence of Sir Orlando Bridgman Mr. Edward Alehorn and Mr. John Alehorn both of them my Lord Keeper Bridgman's Clerks I knew them to be so This Attestation of these Deeds is a Demonstration to me they were drawn by Sir Orlando Bridgman After this the Contingency does happen for Thomas Duke of Norfolk dies without Issue and the Earldom of Arundel as well as the Dukedom of Norfolk descended to Henry now Duke of Norfolk by Thomas his death without Issue presently upon this the Marquess of Dorchester the surviving Trustee of this Estate assigns his Estate to Marryot but he doth it upon the same Trusts that he had it himself Mr. Marryot assigns his interest frankly to my Lord Henry the now Duke and so has done what he can to merge and extinguish the Term by the signing it to him who has the Inheritance To excuse the Marquess of Dorchester from cooperating in this matter it is said there was an absolute necessity so to do Because the Tenants in the North would not be brought to renew their Estates while so Aged a
in possession it had been the stronger but as this Case is I conceive the Trust will wait upon the Estate of H. H. for so long as Tho. lives and hath Heirs Males of his body and until the Earldom come unto him and the Trust of Henry determines and then a new Trust springs up to the younger Children which is a future contingent trust so as a common Recovery can bar this Trust so long onely as they did wait upon the Estate of H. H. which is now determined by a collateral Limitation and the Recovery cannot enlarge the Trust to H. H and make that to continue which in its Creation was to end when such a Contingent happens which hath now hapned if H. H. had not suffered a common Recovery he had had an Estate-tail yet no Trust this is a future contingent Trust to the younger Children which cannot be barred by a common Recovery W. Ellis 8 Martii 1677. 1. The Surrender or Grant of the Lease for 200 years to Serj. M d for the Brothers Henry nor the extinguishment of the legal Interest of the term doth not prejudice the equitable Trust of the term so long as the Lands comes not into other hands viz. of a Purchaser without notice of the Trust which is not in this Case 2. An Intail cannot be made of a term in Gross as if a Lease for 1000 years be made in trust for J. S. and the Heirs of his body with Remainders over J. S. may dispose of the whole term and such disposal is good against his Issue and those in Remainder and if he die without such disposition made by him his Executors shall have the benefit of the Trust and not his Issue or the Remainder 3. But a Term may be limited to attend and wait on the Inheritance by way of a trust as if a long term of years be the Reversion in Fee if the Reversion be purchased in Fee or setled in tail the term may be setled to the use of the Fee or Tenant intail and in that case if the Tenant intail die or the Tenant in Fee die the Heir or Issue shall have the benefit of the trust and not the Executors c. 4. But in that Case if the Tenant in Fee die in debt and no other sufficient Assets to pay the debt in that case the Executor shall be preferred before the Heir although the debt be such as the Heir is not bound or liable unto 5. And I conceive that in that case if the Tenant intail that hath the Equity of a term waiting on it do purchase the term and alien or obtain the Trustee of the term to make an alienation of the term it shall bind the Issue intail and him in Remainder though the Alienation be by Deed without Fine or Recovery because the term in Law is well aliened without Fine c. And the Statute of Westm 2d de bonis extends not to a Case of a term 6. Yet it is true this doth not absolutely determine the Case in question upon three accounts First It is a new Case not yet brought in question Secondly Because here is a springing and a new trust by accident subsequent and alters the Trust and changes the Intail of the term to other persons from Henry to the younger Children and on such accident takes away the Trust wholly from Henry the first Tenant in tail And Thirdly the Change seemeth to be grounded on great reason for the Lord Maltravers being in such condition as he was in there was great reason to disable him and provide for the younger Children as is done by Case and if Henry should come to be Earl and have addition of Estates that the other younger Children should also have accession of Estate to them and so it is by this Deed of trust provided But notwithstanding these reasons and this difference of the Case in these circumstances from other Cases already resolved and the contrary Opinions that I have seen I am rather of the opinion that in this Case the younger Brothers are bound by the Recovery suffered by Henry than convinced that they are not bound for I find that the Reasons given e contra touch not my doubt fully The Reasons of my Opinion are viz. 1. For the Recovery suffered and the time when it was suffered to wit before the Lord Maltravers dyed for till he dyed Henry was Tenant in tail and had power by a Recovery to bar and dispose of the whole Inheritance as well of his his own Estate tail as of those in Remainder The term of years was but accessary to serve and attend the Inheritance which was principal 2. And the onely reason that made such intailing or limitation of the term good was because it was to wait on the Inheritance first to Henry in tail and so successively to the other Brothers or else as it is abovesaid the limitation had not been good And when that reason fails and the cause why it was a good limitation ceaseth and is taken away the effect of it doth likewise cease 3. The change of the term into thirds doth not change the Estates tail of the younger Brothers and cannot stand with the intention of the Deed of Trust For I think it clear if Charles admitting he come to the Inheritance as owner or if in the life of Henry he could get a Tenant of the Freehold of all or any part of the Land to joyn with him should then suffer a Recovery it would bar Edward Francis and Bernard of so much of the third part whereof such Recovery should be suffered viz. of the whole Inheritance and a third of the term and the residue to wit the other two parts would respectively cease and be intailed as to the term and be wholly in the respective disposition of Edward and the rest and go to their Executors not to their Issues or the Remainders And yet upon long consideration of the Case there is another and a further ground of my doubt of what hath been said viz. not onely because it is a new Case and concerneth a Great and Noble Family but on another and further ground observed and insisted upon by such great Opinions contrary to what I have above observed viz. that it is not onely a springing and contingent use to the younger Brothers respecting them but because the Original Trust to Henry viz. that the Trust to him and his Issue is as to him and them under a Limitation and that not so long as he the Tenant in tail shall have Issue but so long as the Lord Maltravers shall have Issue Male and on that reason the Case is more doubtful M d. 1. I agree that if a man have a term for a 1000 years and Sir W. Ellis he grants and demiseth this to one and the Heirs Males of his body the Remainder to another and his Heirs that this term cannot be intailed nor a Remainder limited upon it and that
Lord Chief Baron Montague Charles Howard is Plaintiff and the Duke of Norfolk and others are Defendants The Plaintiff by his Bill seeks to have Execution of a Trust of a term of 200 years of the Barony of Grastock which was made by Henry Frederick Earl of Arundel and upon the Bill Answers Deeds and other Passages in this Cause contained is this Henry Frederick Earl of Arundel by Lease and Release of the 20th and 21th of March 1647. did settle the Barony of Grastock and of Burgh and several other Lands to himself for Life then to the Countess Elizabeth his Wife for life and then there is a term created for 99 years which we need not mention in this Case because it is determined and after the death of the Countess there is a term for years limited to my Lord of Dorchester and other Trustees for 200 years under a Trust to be declared in a Deed of the same date with the Release and the limitation of the Inheritance after this term of 200 years is first to Henry Howard now Duke of Norfolk and the Heirs Males of his Body then to Mr. Charles Howard the now Plaintiff Brother of the said Henry and so to all his Brothers successively intail Male with the last Remainder to the Earl of and his Heirs then by a Deed 21 of March 1647 the Earl declares the Trust of the term of 200 years reciting first the uses of the former Deed and therein says it was intended that the said term should attend the Inheritance and the Profits of the Barony of should be received for 200 years by Henry Howard now Duke of Norfolk and the Heirs Males of his body so long as Lord Thomas eldest son of the said Earl of Arundel or any Issue Male of his body should be living but in case he should die without Issue Male in the life of Henry Howard not leaving his Wife ensient with a Son or in case after the death of Thomas without Issue Male the Honour of the Earldom of Arundel should descend to Henry Howard then he and his Issues to have no benefit of this term of 200 years but it was to descend to the other Brother Charles Howard the now Plaintiff as hereafter is mentioned and then comes Now this Indenture witnesseth and therein the Earl declares that it should be under the Limitations after specified viz. if Thomas Lord Howard had any Issue Male or Heirs Male of his body living Henry Howard then the Trustees should have the commencement of the term in trust for the said Henry Howard and the Heirs Males of his body till such time as the Earldom should come to Henry Howard by the death of Thomas without Heirs Males of his body and after to the other Brothers successively and the Heirs Males of their bodies and then doth divide the other Mannors with cross Remainders to the five Brothers then the Case goes on thus the Earl of Arundel dies in time in 1652 Elizabeth the Countess dies in 1673 then in 1675 my Lord of Dorchester the surviving Trustee assigns the Term to one Marriot he assigns it to the now Duke of Norfolk and the Duke the 24th of Octob. 1675 by Bargain and Sale makes a Tenant to the Precipe and then a Recovery is suffered and the Uses of that Recovery 25th of October are declared to be to the Duke and his Heirs Then Thomas Howard the former Duke died without Issue having never been married and that is in the year 1677 whereby the Honour came to the now Duke and so the Plaintiffs Bill is to have execution of the Trust of the term of the Barony of to the use of himself and the Heirs Males of his body This I conceive was opposed by the Counsel for the Defendant upon these grounds 1. That by the Assignment made by Marriot to my Lord Duke Henry the Term was surrendred and quite gone 2. The second ground was the common Recovery suffered which they say barred the remainders which the other Brothers had and so also would be a bar to the Trust of this term 3. And the other ground was that the Trust of a term to Henry and the Heirs Males of his body until by the death of Thomas without Issue the Earldom should descend upon him and then to Charles is a void Limitation of the Remainder As to the first that by the assignment of Marriot to Henry Howard the whole Term was surrendred and being so surrendred hath no existance at all that I find but was barely mentioned and I think cannot be stood upon for this the term by the surrender is gone indeed and merged in the Inheritance yet the Trust of that term remains in Equity and if this Trust be destroyed by him that had it assigned to him this Court has full power to set it up again and to decree the term to him to whom it did belong or a recompence for it therefore I think that stands not at all as a point in the Case or as an objection in the way As to the next thing the common recovery now suffered by the now Duke that doth bar the remainders to the other Brothers And so also the trust of this term that I conceive to be so in case this can be interpreted to be a term to attend the Inheritance and indeed in the reciting part the Deed doth seem to say that it was intended to attend the Inheritance But by that part of the Deed which followeth after now this Indenture witnesseth there it is limited that the term should be to Henry Howard and the Heirs Males of his body until such time as the Honour of the Earl of Arundel by his elder Brothers death without Issue should come to him then to the Plaintiff which doth convey the Estate of the term in a different Channel from that in which the Inheritance is setled and taking this Deed altogether it doth limit this term in such various Estates that it can no way be construed to be a term attending the Inheritance and then I conceive the recovery doth not bar the trust for the recovery would bar the incident to any Estate as this would do here if it attended the Inheritance but being onely a term in Gross and a collateral thing I conceive the recovery has no operation to bar the trust in the term Then the Case singly depends upon the third point whether the Trust of a term thus limited to Henry Howard and the Heirs Males of his body until his Brother die without Issue whereby the Honour came to him with such contingent Remainders over be a good Limitation this is the Question and so in short the Case is but thus A Term of Two Hundred years is granted in trust that Henry Howard and the Heirs Males of his body shall receive the Profits until Thomas die without Issue Male of his body and then to Charles Howard and the Heirs Male of his body And in this case I am
Case 't was limited if William had no Issue at the time of his decease in this Case if Tho. had no Issue at the time of Henry's death Put case it had been limited that Tho. had dyed without Issue in thirty or forty or any number of years or if it had been limited that Tho. had dyed without Issue in the Life of Henry and five or six more persons it might have been so limited as well as to one Life and the Law is the same It is more Contingent when the Cessor is limited to be upon the death of Tho. without Issue in the life of Henry then it had been if Tho. had dyed without Issue generally for he may dye without Issue though he dye not without Issue in the life of Henry First the sum of this is if such limitation of a Term as this is be not good at Law the Trust of a Term cannot be good in Chancery Secondly the general scope of the Settlement of the Term was that the Term shall wait on the Inheritance Intail which now cannot be because it is altered Again if the Law should be otherwise that Charles have the whole Term then those in Remainder shall be utterly defeated of it and shall not go to Charles his Son and Heir but to the Executors which was never intended by the Deed. M d. I conceive that notwithstanding the late Judgments in Opinions and Considerations for the younger Brothers Sir J. C Chancery have been that if a Term of years be limited by way of Trust or otherwise to any person and his Heirs Males with Remainders over or other limitations to any other persons those Remainders and Limitations are void and the whole Term shall be to that person and his Executors and Administrators to whom it was first limited in Tail yet this Case is different from all those Cases by reason this was onely a Temporary Provision as to Mr. Henry Howard until that Contingent of the death of the Duke of Norfolk should happen and then absolutely to cease as to Mr. Henry Howard And then the Trust of the Term is declared to be for the preferment of the younger Sons as is above expressed and albeit that Marriot hath in plain breach of Trust by his Assignment enabled the now Duke to destroy the Term in point of Law yet the Chancery may subject the Lands during the Remainder of the term to the Trustees for the younger Children as agreeable to the intention of the Deed of Trust and to all Honesty and Equity and that Equity I take is in no sort bar'd by the Fine if a Bill be exhibied in time J. C. 8 Jan. 1677. I concur with this Opinion because it is no absolute Trust Sir R. S. not so much as for the life of Henry but a limited Trust upon a Contingent which as in its Creation it might so in Fact it did happen in the life-time of Henry and consequently there is no room for any Construction to be made that the Trust of the whole term vested in Henry against the express limitation thereof R. S. I conceive first that if by Act executed my Lord of Arundel Mr. Offley had created this term to my Lord Dorchester and the rest of the Trustees in trust for Henry Howard in tail and after his death to the Brothers in tail that had been a perpetuity and not good for a term though as to that there is a difference taken in Tatten and Mollenex Case More 809 810. in Chancery by the Lord Chancellour and the Judges assistant which seems to be reasonable that the first party that is the Cestique Trust against his Issue may dispose of it but not against him in Remainder for Equity preserves it as to the Remainder so then if it had been to Henry Howard and the Issues of his body the Remainders to the Brothers Though Henry Howard could as to his Issue dispose of it yet as to his Brothers it stood good if that Resolution holds good and the Books says it was grounded upon presidents in that Court too But this case differs where the course of Equity is against it therefore first there is onely by this Conveyance a reception of the profits in Henry Howard and the Issue Male of his body until the Dignity of Arundel come to him And it is not in trust for him and his Issue Male so as he has not the entire trust in him as the other Sons have by the penning of the Deed. Secondly 't is not absolutely in trust in him and his Issue Male but temporary in them upon the falling of the Dignity of Arundel sooner or later and he is not a Cestique trust within any of the Statutes proceeding in the Statute of Uses but has but a limited pursuance of the profits but the trust vests compleatly in the Brothers after Thirdly then the Marquess of Dorchester assigns the term to Marriot and he assigning to H. H. whereby he has in strictness of Law extinguished it whereby there is a wrong and deceit done to the Brothers he is bound in equity and good Conscience to make them recompence and satisfaction for this wrong and it appearing that H. H. was privy to this with a design to extinguish it and that extinguishment turning to his advantage he is likewise compellable in Equity to answer it out of his Estate either by creating a new Term in this Land or by some other way according to the Resolution of the Judges in my Lord of Ormon's Case Hubbard 350. I have seen the Opinions of Mr. Attorney-General Serj. Sir W. Ellis Maynard and Serj. Pemberton whose Opinions I do much value and have great esteem for Mr. Attorney saith that the Term to H. H. and the Heirs of his body under other limitations than the Inheritance was the whole Term vested in H. H. and the Limitations thereof to the other Brothers are void I conceive the whole trust of the Term is not limited to H. H. but part of the Trust so long as Thomas the deceased Duke shall have Heirs Males of his body and until the Earldom comes unto him so as the Trust is but a qualified and limited Trust in H. H. so as this Trust to H. is now ended by way of limitation to H. H. and then there is a new Trust springs and arises to the younger Brothers not by way of Remainder of a term but the Trust to H. H. being ended and determined I conceive a new one may well arise and spring up to the younger Children admitting it were a trust of a term in Gross it is not a Remainder but a future Contingent grant and a limitation to them as it is in Pell and Browns Case Secondly If it be to attend the Inheritance then he conceives clearly the Recovery having barred all Remainders the Term and the trust of the Term is also barred If this Trust had been to wait upon all the Estate as they came
am of opinion it fails in point of Limitation and ought to be decreed for the Defendant The Lord Chief Justice Pemberton's Opinion I Need not trouble your Lordship with opening the Case the truth is it is in short no more than thus My Lord Duke of Norfolk's Father the Earl of Arundel having created an Estate for 200 years and setled the Inheritance by one Deed Intail to himself for life and after to his Lady for life and then to his Son and the Heirs Males of his body and for default of such Issue to the other Son Charles and the Heirs Males of his body with several Remainders over Then by another Deed he does declare the Trusts of this term of 200 years which being to Henry and the Heirs Males of his body till my Lord Maltravers die without Issue Male and the Earldom descend to my now Lord Duke and after the determination of that Estate if he shall die without Issue Male then to come to Charles and the Heirs Males of his body whether this be a good Remainder to Charles is the Question For as to any thing of the Recovery or the Assignment I shall put it quite out of the Case and do not think it will have any influence upon the Case as it lies before us And indeed I do first think that the Earl of Arundel did certainly design that if my Lord Maltravers should die without Issue Male whereby the Honour of the Family should come to my Lord Duke that now is Charles should have this Estate and his intentions are manifest by creating this Term which could be of no other use but to carry over this Estate to Charles a younger Son upon the elder Sons dying without Issue And I do think truly that this was but a reasonable Intention of the Father for there being to come with the Earldom a great Estate that would so well support it it was reason and the younger Sons might expect it that their Fortunes might be somewhat advanced by their Father in case it should so happen It was a reasonable expectation in them and truly I think it was the plain intention of the Earl. And there is no great question but it might have been made good and effectual by the limitation of two Terms For if one Term had been limited to determine upon the death of Thomas without Issue and that to be for the now Duke of Norfolk and another Term then to commence and go over to Charles that would certainly have been good and carried the Estate to Charles upon that Contingency but as this Case now is I do think that this way that is now taken is not a good nor a right way for I take this Limitation to Charles to be void in Law. And as to that I know there is a famous difference of limiting Terms that are in Gross and Terms that attend the Inheritance As to Terms that are in Gross I think it will be granted because it hath been setled so often they are not capable of limitation to one after the death of one without Issue for so are all the Cases that have been cited I think further it is as clear that upon Terms attendant upon an Inheritance there may be such a Limitation to wit that a Term that waits upon an Inheritance after the death of one without Issue may go over to another But then it is capable of such a Limitation in that Case with this restriction that is if the Inheritance be so limited for though it be attendant ever so much upon the Inheritance yet that attendance cannot make it capable of another Limitation than that Inheritance is capable of For if I have an Estate in Fee-simple and have the Trust of a term attendant upon that and I will let the Estate of Inheritance descend to my Son I cannot in this case though the Term be attendant limit it that if my Son die without Issue that Term shall go over it is not capable of any Forreign Limitation whatsoever for as to that it is a Term in Gross it hath not the quality of a Term attendant upon the Inheritance at all for first it would fail of an Inheritance and a Free-hold to support it and further than a Term can be supported with a like Estate of Inheritance It will fail to be a Term attendant upon the Inheritance Now here the Estate of Inheritance is limited to Henry and the Heirs Males of his body with Remainders to Charles and the Heirs Males of his body Now thus the Term is capable of a Limitation to Henry and the Heirs Males of his body And for want of such Issue to Charles and the Heirs Males of his body because it hath an Inheritance on which it depends to go along with it and support it But to take this out of its right Course and Channel and put another Limitation upon it That upon the dying of Thomas without Issue whereby the Earldom shall descend this shall go over to Charles alas it cannot be because it hath no Free-hold or Inheritance to support it And then besides it could not have that reason that the Law intends for its permitting such Limitations to Terms attending the Inheritance for I take it the reason why Terms are admitted to be attendant upon the Inheritance and to be capable of Limitations to go along with the Inheritance is their relation they have to the Inheritance and because it is for the benefit of the Inheritance and that I conceive was the onely reason that at first guided these Judgements of the Court of Chancery that these Terms should be admitted to wait upon the Inheritance to protect it when Mortgages were made in former times by Feoffments upon condition of payment of money we hear of none of these Terms But in the latter part of Queen Elizabeth's time and since the way of limiting Terms in Mortgages came up in use and then upon the buying of Inheritances came in the Trust of these terms and they that purchased were advised to keep those Terms on foot to protect their purchased Inheritance I must look upon this indeed as a new Case of Novel invention for in truth I think in truth it is Prima Impressionis and none of the former Cases have been exactly the same For this Term here does partake somewhat of a Term in Gross and somewhat of a Term attendant upon an Inheritance and if there should be such a Limitation admitted such a forreign Limitation as this is I call it Forreign because it is not that which goes along with the Inheritance If that be allowed we know not what inventions may grow upon this for I know mens Brains are fruitful in inventions as we may see in Matthew Manning's Case It was not foreseen nor thought when that Judgement was given what would be the Consequence when once there was an Allowance of the Limitation of a Term after the death of a person presently it was
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