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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

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-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-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

THE ARGUMENTS OF THE LORD-KEEPER THE TWO Lords Chief Justices AND Mr. Baron Powell When They Gave JUDGMENT FOR THE Earl of BATH Die Martis 12 Decemb. 1693. In the Middle-Temple Hall Com. Bathon adv Com. Mountague at al. THIS Day being appointed by the Lord Keeper to hear the Opinions of the two Chief Justices and Mr. Baron Powell who assisted at the hearing of this Cause and to deliver his Lordship 's own Judgment therein Mr. Attorney General moved on the Behalf of the Earl of Mountague c. for the Judgment of the Court and Mr. Baron Powell delivered his Opinion first Mr. Baron Powell The Question in this Case is Whether there be any Ground in Equity to set aside a Deed of Release made in July 1681. for the Settlement of the late Duke of Albemarle's Estate by which my Lord of Bath claims The Validity of this Deed hath been tried at Law upon an Ejectment in the Court of Kings-Bench by Direction of this Court where the Title has been found for the Earl of Bath by the Strength of this Deed so that it must be agreed my Lord of Bath hath a good Title at Law because the Verdict hath found it so and all Parties concerned have hitherto acquiesced under this Verdict This Case comes now back upon the Equity reserved and it is only now to be considered what Matters of Equity have been offered to avoid this Title thus found at Law And those I think may be reduced to five Heads First That this Deed was obtained by Surprize and Circumvention Secondly That it was a concealed and a forgotten Deed. Thirdly That this is a Deed attendant upon a Will and so revocable in its own Nature although it had no Power of Revocation in it Fourthly That there is an implied Trust in this Deed that the Duke might have charged the Estate to the full Value and consequently might well dispose of it in Equity And Fifthly That the great Solemnity and Deliberation used about making the last Will and the publishing that Will do amount to a Revocation in Equity notwithstanding that the Circumstances of the Power are not strictly pursued I am of Opinion in this Case that this Deed having been affirmed by a Verdict upon a Solemn Trial at the Bar at Law none of these Matters are sufficient for to ground a Decree in a Court of Equity to set aside this Deed and I shall give you my Reasons for this Opinion in the same Order I mentioned those Heads in with particular Answers to the particular Objections under each Head 1. It is said this is a Deed that was obtained by Surprize and Circumvention Now I perceive this word Surprize is of a very large and general Extent They say if the Deed be not read to or by the Party that is a Surprize Nay the Mistake of a Counsel that draws the Deed either in Misrecitals or other things that is a Surprize of the Counsel and the Surprize of the Counsel must be interpreted the Surprize of the Client These things have been urged in this Case and I thought fit to mention them for the introducing my Reason against this Head of Argument and it is this That if these things be sufficient to let in a Court of Equity to set aside Deeds found by Verdict to be good in Law then no Man's Property can be safe I hardly know any Surprize that should be sufficient to set aside a Deed after a Verdict unless it be mixed with Fraud and that expresly proved and I know not of any such proved in this Case It is true Duke George by his Will and the Settlement made upon his Son at his Marriage takes no notice of or makes any Provision for the Earl of Bath but that I take it is not to be regarded as any way material at all because he takes no notice in either of them of any Body else but him that was his Heir But I must observe here by the way that there was not only a very near Relation between Duke George and the Earl of Bath but a very intimate Friendship cultivated by mutual Offices of Kindness between them to his Death And I must mention one Particular because to me it seems a clear Answer to this Objection that is His making no Provision for the Earl in the Will or Settlement might be the Occasion why Duke George did make such ●n earnest Application to King Charles the Second that upon Failure of his Issue Male his Majesty would please to bestow the Dukedom upon the Earl and annex Theobalds to it which would then revert to the Crown And that King did often promise he would and afterwards did it solemnly under the Sign Manual But then it is said that after this Duke Christopher made his Will and therein there is no notice taken of any such Disposition of his Estate to the Earl of Bath but that is not I think to be regarded neither because that was a Will only of his Personal Estate and made when he was under Age and could not dispose of his Real Estate Then come we to the Year 1675. when the Will was made to which this Deed has some Relation and by that Will Duke Christopher doth settle a great Part of his Estate upon Failure of Issue of his own Body upon my Lord of Bath There is no Pretence of any Surprize upon the Duke when he made this Will and it is plain then he had an Intention that my Lord of Bath should have a great Share in his Estate if he died without Issue Now then it is to be considered what there is of Proof in this Case of any thing that might be a Ground to conceive why he should alter this Intention between the Years of 1675 and 1681 when this Deed was made There is no Proof of any Misunderstanding between the Duke and the Earl in that Interval but on the contrary that there was a continual Friendship and Intercourse of Kindness between them all the while as doth appear by a continual Succession of Letters and other Correspondences passing between them in those Years one of which I cannot chuse but take notice of because of the Date of it to wit in June 1681. upon my Lord Lansdown's Intention to travel wherein the Duke takes notice of the Interest he had in my Lord of Bath's Family and particularly in his eldest Son as the greatest next to that of the Earl himself And I say I mention this Letter because of the Date that it is so near the very Date of the Deed that it is possible the Date was then made because it was within a Month after that Letter sealed and executed therefore it might well be referr'd to in it Next this appears to be a Deed drawn by the Duke of Albemarle's own Counsel Sir Thomas Stringer for it is proved the Paper-Draught is all of his Son's Hand-writing except the first and last Sheet and all of it interlined

would put the Case upon a like bottom of Presumption the other way and then see what we shall make of it Duke George prevails with King Charles II. to promise to make the Earl of Bath Duke of Albemarle upon his failure of Issue-Male Duke Christopher when he comes of Age doth make a Settlement of his Estate upon the Earl of Bath upon failure of Issue of his Body The Earl of Bath is a Person that doth heap Obligations upon both Dukes and their Family is Assistant to the Duke both in the Purchase and Sale of Albemarle-House is continually the Chief Person concerned in all his Affairs nothing almost is done without him There is no proof of any Misunderstanding or Ground for any between them Nay it was the Report in the Family That if the Duke died without Issue the Earl of Bath was to have the Estate He and Sir Walter Clarges are the Duke's nearest Relations whereas Mr. Monk that I find is not in the Case proved to be at all of Kin to him and so we must not take him to be related without proof but only that the Duke called him Cousin Now after all this that the Duke should make this last Will and give all this Estate to a Stranger for so as to any thing appears in proof and give nothing to the Earl of Bath when by the former Settlement he had given him such hopes of so great a Share this I think is a very Unaccountable thing and I confess I know not how to extricate my self out of the Confusion it causeth in me But I must set the one against the other as to that Objection and leave the Matter in the dark as to the Duke's Honour as I found it though I think I may give a further Answer to this Objection under the Second Head But I must speak something more under this for I would omit nothing that I conceive to be material in the Case There is another thing objected that seems dark in this Case and that is What was the meaning of some Parchments that were ingrossed by Thompson the Summer before the Duke went to Jamaica The Jury have found that this Deed was executed in 81. And if then the other Side would make use of this as insinuating that they were the same Deeds then that is not to be admitted as being expresly against the Verdict But to me it seems That these Deeds in 87. were made upon some design to have them executed then perhaps to settle the Estate upon a firmer foot than it was thought before The Earl of Bath perhaps might be Jealous that the Dutchess might prevail upon the Duke to revoke the former Deed in due form and therefore these Deeds might be prepared absolutely without any power of Revocation and thought he might procure the Duke to seal them so before he went to Jamaica I say that might be the Intention though what was the Design I cannot really tell But admitting that such Writings were prepared with such a design to get the Duke to execute them I know not that all this put together will be a sufficient Ground in Equity to set aside the Deed of 81. For all Designs in gaining of Deeds will not avoid Deeds actually made And that is plain from the Case of Bodmin and Roberts that was one of the Precedents used in this Case which was in short thus Mr. Roberts Son to the late Earl of Radnor married the only Daughter and Child of Bodmin who was so passionately fond of his Daughter that whenever she was in his presence he would break out into great Fits of Passion and weep for Joy to see her Notwithstanding this great fondness of his Daughter one Mr. Wynne took an Opportunity when Mr. Bodmin was under an Arrest and officiously came to Bail him and insinuates into him that his Son-in-Law was the occasion of his being Arrested and thereupon wrought so far upon him as to get him into a private place where he was removed out of his Son and Daughters Knowledge and where he went by a strange Name No one of his Friends had any access to him but Wynne himself and such as he would permit Mr. Roberts made frequent Application to be admitted to him but was refused which was all in proof While he was under this Concealment Wynne tampers with one Barry that had Mr. Bodmin's Will in his Custody and would have had him suppressed that Will whereby he gave his Estate to his Daughter It happens during his being thus secured he falls sick then there is a Will prepared for him to give this Estate away to Wynne from his only Daughter they get three Witnesses to the Execution of it This Will was never read over to him this appears in the proof but they get him to execute it And he dies Hereupon Mr. Roberts exhibits his Bill in this Court to set aside this Will There was proof made of all this Matter that I have opened and this Point of Surprize in obtaining this Will was insisted upon strongly The Lord Chancellor at the Hearing of the Cause was assisted by the Chief Justice Bridgman the Chief Baron Hales and Justice Rainsford But notwithstanding all this proof they could not prevail to set aside this Will in this Court and afterwards when they came into the House of Lords they were of the same Opinion and it ended at last in Relief by the Legislative Power an Act of Parliament This now I take to be much stronger for Relief if any could be than the Case now in Question and if then upon such apparent Surprize and Practice it could not be set aside in Equity sure this cannot where there doth appear no proof at all of any such thing I come then to consider the Second Head of Argument against this Deed that it was a concealed and forgotten Deed. Now that it was concealed from the Dutchess and those that were thought her Agents I agree it so and it is plain it was always intended it should be so But that it was concealed from the Duke I think has no Ground at all The thing they would infer it from is the Evidence of Aleman whose Testimony was read once and again and he says This Deed at the time of the Execution of it was delivered to the Earl of Bath whence they infer he carried it away and kept it concealed from the Duke who forgot it But upon reviewing Aleman's Deposition it can be understood to mean no other but only delivered to that effect as a Deed to his Use but not that it was delivered to him for Custody and carried away by him No truly it seems plain to me from all the Proofs and Circumstances of the Case That this Deed did remain in the Custody of the Duke of Albemarle For that Sir Thomas Stringer a little before the Duke went into Jamaica doth draw an Abstract of it in which the very date is mentioned which could not be drawn from

might be obtained from him by Surprize These are the Considerations and Reasons expressed in the Deed why he gives this Estate away from his Heir at Law Both this Deed and Will agree in this for substance that they limit the main part of the Estate to the Earl of Bath tho they differ in several of the Limitations to divers Persons and as to some of the Limitations to the Earl of Bath they differ too whether material or no shall be considered by and by There is in this Deed a Proviso which makes the great Question in this Case that the Duke should have Power to revoke any of the Uses in the Deed and limit new ones but this Power is restrained by several Circumstances it must be by writing under his Hand and Seal in the presence of six Witnesses three whereof to be Peers of this Realm and a tender of 6 d. to the Trustees named in the Deed. Afterwards in the Year 1687 the Duke makes another Will and thereby he giveth some Parcels of his Land to Mr. Bernard Greenville my Lord of Bath's Brother Sir Walter Clarges and others and makes some larger Provision for the Dutchess for her Life than she had before but the main bulk and residue of the Estate is by this Will given to Colonel Thomas Monk Father of the Plaintiffs And he doth likewise in that Will make a Petition to the King that he will be pleased to confer a Title of Honour upon him and make him Baron Monk of Potheridge the Ancient Seat of the Family That Will of 75 and the Deed of 81. are subscribed by six Witnesses each this Will of 87 but by 3 and so the defect of this Will to make it a Revocation is that there are but three Witnesses and none of them Peers and there was no tender of 6 d. to the Trustees The intent of the Earl's Bill is to have an Establishment of this Deed against this last Will and the intent of the Dutchess and Mr. Monk's Bills is to set aside the Deed and establish this last Will and that upon certain Grounds of Equity the Deed having obtained a Verdict for it at Law This is the general State of the Case the particulars will be brought in best under the several Heads that I shall mention But first I shall take notice as I go what Progress this Cause has had since it was first in Agitation First it was insisted That this Deed was a false Deed and that was thought fit to be directed to a Tryal at Law and it was most proper it should be so for it concerned a great Inheritance and Free-hold conveyed by Deed and a Devise both Titles at Law and that was fit to be decided in the proper Judicature for such things in a Court of Common-Law by a Jury Accordingly this Tryal was directed in an Ejectment at the King's Bench Bar and this Court so far aided the Parties to come to the proper Question as to order there should no Incumbrances stand in the way or be insisted upon but any thing that obstructed the Tryal of the Right should be set aside So that in short the Validity of this Deed was the thing directed to be tryed it was accordingly tryed and thereupon a Verdict obtained that the Deed was a good Deed and the Earl of Bath's Title under it good at Law and Judgment was afterwards entred up and that for the Defendant's part was not conclusive if there had been any Misdemeanour on the other side or in the Jury they might have had redress by applying to this Court for a New Tryal nay they may try it again when they please upon a new Ejectment But they have acquiesced under it to this day that is to say now for two Years together so that we must take it for granted at least this Court is I conceive bound by it that it is a true Deed and a good Conveyance of the Estate as much Evidence there is of it as is possible so strong an Evidence that we must take it to be a true and a good Deed and a Deed without Suspicion Twelve Men besides the Witnesses to it have Sworn the Validity of it that being the sole Question before them and this must be remembred all along in the Consideration of this Case Indeed the Counsel on the other Side did seem to speak a little slightly of it as upon a doubtful Evidence and at last that it is true by this Verdict they must admit that this Deed was sealed by the Duke though that was not a little controverted before But in truth here is the Right tryed it was a Deed that was a Conveyance of the Estate and now we must take it for granted that the whole of the Deed was tried and confirmed by the Verdict so that it is a good Conveyance at Law and passeth all that the words can carry And therefore in our Consideration of this Case we must lay aside all the Evidence that was or was properly to have been given at the Trial as to the Truth and Validity of the Deed And I for my part can allow my self no Consideration of this Deed in speaking to it but such as are Considerations of Equity consistent with the Truth of the Deed. And that is now the only thing that is to be applied unto what there is in Equity and Conscience why this Deed should be set aside when it is allowed to be good in Law there is no doubt but there may be good Ground in some Cases in Equity to set aside that which is good at Law But the Question is whether in this Case there be any such or no. But before I proceed to the Consideration of what has been insisted upon in that kind I desire to take notice of some things about the Will of 87. I am very well satisfied that that Will is well proved There is my Lord Chief Justice Pollexfen hath proved the Instructions given for the preparing it and the drawing of it and there are three Witnesses that speak to the Publication and this is confirmed by the Testimony of Sir Robert Clayton who transacted the first Part of that Affair to bring the Duke and my Lord Chief Justice together and I do equally reject all the Evidence on the one side and the other against the Truth of either the Deed or this Will Then this Will would have been a good Disposition of the Lands if the Law did not hinder that is if this Deed did not stand in the way as a prior Disposition and found good in Law so the Deed is good if Equity do not hinder it Now the Grounds of Equity which my Lord Mountague's Counsel insist upon are I think these I have made indeed but four of them but in Substance I do not differ from my Brother Powell about them for I comprehend that the Deeds being Ancillary as it was called and attendant upon the Will under the Head of a Revocation in

so you cannot imagine that the Duke was at all surprized therein but that when it was executed it was according to that design and purpose Next Sir Thomas Stringer who was the Duke's Counsel to Peruse and amend the Draught as appears by his own Hand sworn by his Son and his Man To imagine then that a Man should be surprized into the making of a Deed when his own constant Counsel doth Peruse and Amend the Draught and the Counsel he used particularly to advise with is by at the Execution and a Witness to it is to say a Man was surprized when he had the Advice of Counsel about it and they were at his Elbow at the Executing of it Now I must confess I am to seek and do not well know what is a Fraud in Equity that shall avoid a Deed which is a good Deed at Law The Case of Bodmin and Wynne and Roberts mentioned by my Lord Chief Justice and my Bother Powell that spake the last day this Cause came on is I think a Case of great Authority in a Court of Equity because it had a great Transaction both in this Court and in the House of Lords before it came to a Resolution and Result I shall put the Case in short as it was here in Court Mr. Roberts Son to the late Earl of Radnor married the Daughter of Mr. Bodmin Bodmin had made a Will and given his Lands to the Children of his Daughter in Tail and after this he makes another Will whereby he gave one part of that Estate to Mr. Wynne and another part to a remote Kinsman It did most plainly appear in the Depositions of this Case that this Will was obtained by great Fraud and Circumvention that is Wynne got into his Acquaintance by pretences of some little Offices of Friendship and Kindness he got him away from his Friends and Relations and during his Sickness he did by false Stories withdraw his Affection from his Daughter kept him in secret Places that no Friend might come at him and while he was so secreted and wrought upon was this last Will made whereby he gave his Estate away from his Child to a Stranger All these pieces of Practice were Apparent before the Court at the Hearing of this Cause which was heard by my Lord Clarendon Assisted by who all Unanimously Declared that this was a VVill obtained by Fraud and by Practice and that there was great Reason if they could to relieve against it But they searched Precedents and could find none that would come up to the Case Thereupon for difficulty there was Advice taken about it in the House of Lords and there upon Consideration was an Order made by way of Advice to the Lord Chancellor that he should proceed to do Justice to either Party though there were no Precedent found to govern the Judgment Afterwards this Cause came to be heard again 12 June 1666 when my Lord Chancellor being assisted by my Lord Chief Justice Bridgman my Lord Chief Baron Hales and Mr. Justice Raynsford did declare That there could be no Relief though it was said before it was apparently a VVill obtained by Fraud and this to the Prejudice of the Heir at Law who had never Offended or given him any Cause to Disinherit her So the VVill was dismissed but the Parties complaining in Parliament were Relieved by the Legislative Power by an Act of Parliament Now besides that there was Evidence of ill practice in that Case but in this I say I find none this is so great an Authority and does shew the wariness of a Court of Equity that I think none can be greater Equity would not relieve them but they were put to seek their Relief by a Law made on purpose But I will suppose now in this Case that when my Lord of Bath did understand the Kindness of Duke Christopher and knew of the Will of 75. and knowing the Incoastancy of the Duke's Temper and other Circumstances in the Family and the Revocableness of a Will should have applied himself to the Duke and told him ' It is true you have been so kind as by your Will to bequeath me a great part of your Estate but you may be prevailed with on a sudden or by some Artifice or other to alter this Will of yours and you may be surpriz'd into the doing of it pray will you make a more solemn Settlement to confirm this Kindness by a Deed And had prevailed to get him to do it Suppose I say he had done so tho I find no Evidence in this Case of any such thing suppose he had been employed in the whole transaction of such a Deed is this unlawful or is it any harm No it is very innocent he might lawfully do it and if he had opportunity he might prudently do it But I say I find not so much as that in this Case but this Deed was fairly obtained from the Duke whether it was by the advice desire or interposition of my Lord of Bath doth not appear or whether it were the Duke 's own voluntary Act though I think it is not material whether it was the one or the other But it hath been said That when Duke Christopher did design to alter his Will and for that purpose sent to my Lord of Bath to bring the Will of 75. which he had in his Custody my Lord of Bath should have told him of this Deed too And therefore the concealing of the Deed of 81. from D. Christopher is a kind of fraud and not making a discovery of it then he shall not now take advantage of this Slip and have the Estate by this Deed because if the Duke had considered the Proviso in the Deed he would have taken eftectual care to have had a good Revocation in all the Circumstances And that he did not so revoke it must be imputed to the concealment of this Deed from the Duke by the E. of Bath So was the Case of Mr. Clare at the Suit of the E. of Bedford which was opened the last Term. A Man that stands by and sees a Cheat which might have been prevented by his discovery shall not take advantage of his own wrong and profit by such concealment But doth it appear in this Case that my Lord of Bath knew to what purpose the Duke sent for his Will or how or in what manner he would alter the Settlement of his Estate Why must he be bound to take more notice of this Deed to the Duke than the Duke himself It was the Duke's own Act and not my Lord of Bath's and why should he give him notice of his own Act The Rule of Law when one is obliged to give notice to another is this When the thing lieth more in the Knowledg of the one than the other and he cannot come to the Knowledg but by his means But when one Man hath reason to know and doth as much as the other he is not bound to give notice