Selected quad for the lemma: cause_n
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A36820
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The Duke of Norfolk's case, or, The doctrine of perpetuities fully set forth and explain'd
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1688
(1688)
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Wing D2513; ESTC R17683
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59,123
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72
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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
a Fee upon a Fee is not yet plainly determined but it will be soon found out if men shall set their Wits on work to contrive by Contingencies to do that which the Law has so long laboured against the thing will make it self Evident where it is Inconvenient and God forbid but that Mischief should be obviated and prevented I have done with the legal Reasons of the Case it is fit for us here a little to observe the Equitable Reasons of it and I think this Deed is good both in Law and Equity And the Equity in this Case is much stronger and ought to sway a man very much to incline to the making good this Settlement if he can For 1. It was prudence in the Earl to take care that when the Honour descended upon Henry a little better support should be given to Charles who was the next Man and trode upon the heels of the Inheritance 2. Though it was always uncertain whether Thomas would die without Issue living Henry yet it was morally certain that he would die without Issue and so the Estate and Honour come to the younger Son for it was with a careful circumspection always provided that he should not Marry till he should recover himself into such estate of body and mind as might suit with the honour and dignity of the Family 3. It is a very hard thing for a Son to tell his Father that the provision he has made for his younger Brothers is void in Law but it is much harder for him to tell him so in Chancery And if such a provision be void it had need be void with a vengance it had need be so clearly void that it ought to be a prodigie if it be not submitted to Now where there is no perpetuity introduced no cloud hanging over the Estate but during a Life which is a common possibility where there is no inconvenience in the Earth and where the Authorities of this Court concur to make it good to say all is void and to say it here I declare it I know not how to do it To run so Counter to the Judgment of that great man my Lord Keeper Bridgman who both advised this settlement and when he was upon his Oath in this place decreed it good I confess his Authority is too hard for me to resist though I am assisted by such learned and able Judges and will pay as great a Deference to their Opinions as any man in the World shall If then this shall not be void there is no need for the Merger by the Assignment or the Recovery to be considered in the Case For if so be this be a good limitation of the Trust and they who had notice of it will palpably break it they are bound by the Rules of Equity to make it good by making some Reparation Nay which is more if the Heir enter upon the Estate to defeat the Trust that very Estate doth remain in Equity infected with the Trust which was the Case of my Lord of Thomond so also was the Resolution in Jackson and Jackson's Case So that to me the Right appears clear and the Remedy seems not to be difficult Therefore my present thoughts are that the Trust of this Term was well limited to Charles who ought to have the Trust of the whole Term Decreed to him and an account of the mean profits for the time by past and a recompence made to him from the Duke and Marryot for the time to come But I do not pay so little Reverence to the Company I am in as to run down their solemn Arguments and Opinions upon my present Sentiments and therefore I do suspend the Inrolment of any Decree in this Case as yet but I will give my self some time to consider before I take any final Resolution seeing the Lords the Judges do differ from me in their Opinions De Termino Pasch anno 34. Car. II. Ro. In Cancell Sabbati 13 die Maij. Howard Versus Le Duc de Norfolk THis Day was appointed for final Judgment in this cause and it being called Mr. Serjeant M. moved My Lord we depend upon your Lordship in that cause for your Opinion Mr. S. G. My Lord in the Case of Howard against the Duke of Norfolk I do not know whether I may have the Liberty to move this that I am going to offer It stands now in the Paper now for your Lordships Judgment and therefore I speak this that I now offer with great submission if your Lordship will please to hear it If you will please to allow my Lord of Arundel's Counsel the liberty of offering any thing further in the Cause Possibly it will not become them to offer any thing that hath been said but if they may be permitted to argue some new matter if they can find any Therefore we that are for my Lord of Arundel desire the liberty of having some little time till Mr. Keck who is of my Lords Counsel but at present indisposed and has not yet been heard can come which we hope will not be long We hope it will be no prejudice to this Cause which has had so long an agitation to stay a few days longer A Weeks time sure will break no squares Lord Chancellor I did appoint the first Tuesday in the Term to deliver my Opinion in this Case for I desire to rid my hands of it But Mr. Keck who was then at the Bar did pray that he might argue it once more for the Defendant and my Lord Duke of Norfolk having never been heard by Mr. Keck I was willing to hear him For it was a Cause of moment and difference of Opinions and there are so many short-hand Writers that nothing can pass from us here but it is presently made publick and tho' a Man doth not speak in Print yet what he says shall be immediately put in Print therefore because Mr. Keck desired it and to justify my own Opinion tho' I had appointed the first Tuesday in the Term yet I gave till this day It is but reason Mr. Keck should be heard who has not yet argued it and if any Man can convince me I am in an error or make it appear to me that I am mistaken in the Law in the Opinion I have given which as yet I see no cause in the World to change God forbid but I should hear them but on the other side this cause must not everlastingly be put off because my Lord Dukes Counsel are not here Therefore I will give you a Weeks time further but upon this Day sevennight come or not come I will give my Judgment in the Cause Mr. Serj. M. If your Lordship pleases to put it upon the other side unless they shew cause then the Opinion your Lordship has given to stand Lord Chancellor If my Opinion which is under the prejudice of being contrary to that of the three Chief Judges can be refuted I am not ashamed to retract any error I