THE ARGUMENTS OF THE LORD-KEEPER, THE TWO Lords Chief Justices, AND Mr. Baron powel, When They Gave JUDGEMENT FOR THE Earl of BATH.   


Die Martis 12 Decemb. 1693. In the Middle-Temple Hall, Com. Bathon. adv. Com. Montague, at al.  
THIS Day being appointed by the Lord Keeper to hear the Opinions of the two Chief Justices and Mr. Baron powel, who assisted at the hearing of this Cause, and to deliver his Lordship's own Judgement therein, Mr. Attorney General moved on the Behalf of the Earl of Montague, etc. for the Judgement of the Court; and Mr. Baron powel delivered his Opinion first.  Mr. Baron powel. 
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 Surprise 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 Surprise and Circumvention. Now I perceive this word Surprise is of a very large and general Extent. They say, if the Deed be not read to or by the Party, that is a Surprise: Nay the Mistake of a Counsel, that draws the Deed either in Misrecitals or other things, that is a Surprise of the Counsel, and the Surprise of the Counsel must be interpreted the Surprise 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, than no Man's Property can be safe: I hardly know any Surprise that should be sufficient to set aside a Deed after a Verdict, unless it be mixed with Fraud, and that expressly 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 than 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 Surprise upon the Duke when he made this Will, and it is plain than he had an Intention that my Lord of Bath should have a great Share in his Estate if he died without Issue.  
Now than 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 choose 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 referred 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 Handwriting, except the first and last Sheet, and all of it interlined with Sir Thomas his own Hand: Errington has proved the Abstract all of Sir Thomas his Hand, with the very date in it, and swears that Sir Thomas examined it with him. Now is it to be imagined that Sir Thomas Stringer should prepare such a Settlement for the Duke to execute without any Order or Instructions from him about it? No certainly that cannot be thought. But they say Sir Thomas Stringer if he did draw it, might forget it or overlook it, and he now denies any Knowledge of it. Truly, I cannot value much what Sir Thomas Stringer has sworn in this Cause, he is not consistent with himself, and makes but a very odd Figure in the Cause.  Mr. Stringer. 
My Lord, I beg your pardon for interrupting Mr. Baron powel, but I must vindicate my Father; he never swore a word in this Cause.  Lord-Keeper. 
No he did not, he was dead before the Cause came into the Court. That was a Mistake.  Mr. Baron powel. 
I am sure there was Oath of what he had said about this Deed.  Mr. Stringer. 
That, my Lord, you may make what you please of, but he never made any Oath in the Cause.  Mr. Baron powel. 
But that which I mention him for, was, that there is Proof apparent that he was advised with about this Deed, and he was the Duke's constant Counsel. I do not think I confess that Sir William Jones did draw this Deed; it is not insisted upon by the Counsel of my Lord of Bath that he did; and any one that considers the Frame of it will think as I do. But I conceive he was advised with upon the Proviso, and the Writing in the Margin against the Proviso; I approve of this Proviso, I believe to be his Hand. Though several Persons of good Credit that were well acquainted with his Hand, have sworn they believe it not to be his Hand. But they might be mistaken, and to me it appears by the Comparison of the Records, Deeds and Papers in open Court; for it is plain, according to the various Nature of the several Things he writ, or set his Hand to, he did write several Hands, and particularly wrote his Name sometimes one way and sometimes another. And therefore upon Comparison of that with other Papers, I do believe it to be his Hand.  
The next Thing I would mention, is this; Here are six subscribing Witnesses to the sealing and executing of this Deed at Albemarle-House, of which Sir William Jones was one: And one Aleman, that is one of the Witnesses, swears, That when the Duke delivered the Deed to the Earl of Bath, he wished he could have done more for him. It was probable than the Duke believed he had done something for him; and it is very probable too, he knew what he had done for him, when he wished he was able to have done more. And Mr. Prideaux swears (though he does not exactly fix the time) that the Duke told him himself he had settled his Estate upon the Earl of Bath. Then, I say, it is hard to believe the Duke was surprised in making this Deed, when his own constant Counsel drew it, so able a Counsel perused and approved so main a part of it, and was present at the Execution of it, and he should express his Wishes to be able to do more, can he be supposed not to know what he did?  
But now let us examine the Evidence, and Objections on the other side: They say it doth not appear that this Deed was ever read to the Duke, or by him. It is indeed proved the last Will was read to him, by my Lord Chief-Justice Pollexfen, but not at the time of the Executing of it. But however, I think the not reading of a Deed to, or by the Party that executes it, is a very slender Objection to make out a Surprise, so as to set it aside. That would shake many a Conveyance, I doubt it would shake many Deeds that were made and executed by the Duke. For though he was so cautious as some of their Witnesses say, that he would not execute any Deeds, but what his Counsel set their Hands to, yet I do not find that any of them used to be read to him, or he himself read them at the time he sealed them. Therefore it is a dangerous Doctrine to set aside a Deed upon such an Account. Some People will not have Leisure to hear Deeds read, or read them themselves.  
Then they object the Mistakes and Misrecitals of the Limitations of the Will in the Deed, which refers to the Will, as particularly that of Norton Disney, and some others of less moment: But God forbid that the Mistake of a Counsel in a Recital in a Deed, should be of that great moment as to set aside the Deed when executed by the Party.  
But there is another Matter much insisted on by them as an Argument of Surprise: that is, This Deed is pretended to be made in Confirmation of the Will in 75, and yet it varieth from that Will in almost all the Limitations of the Estates, except in some part of that to my Lord of Bath. I confess I have looked over the Variations, and there are several, but I have this in general to say to it, that I take it this Deed was made for the sake of the Earl of Bath; and that it was for the Earl's better Security, that he bound himself up by so strict a Proviso not to revoke. And if you look into the Deed, it will be found to confirm the Will as to my Lord of Bath, which was the main Point of both Deed and Will. For it sets the Estate given to him upon a firmer foot than it was by the Will, which was revocable in its Nature: Therefore it must be intended, as no doubt it was, for that very Purpose to secure it more to my Lord of Bath, than it was by the Will.  
But that which is said to be an Argument of the greatest weight and moment in this Matter, that there must be Surprise in the Case, is this: It is hardly to be believed, and almost impossible, that the Duke should send for Mr. Monk out of Holland, by his Will desire the King to bestow upon him the Barony of Potheridg, the ancient Seat of the Family, make a Disposition of his Estate by a Will so solemnly prepared and deliberated upon, take care to have three parts of it; one whereof was to be transmitted to the Duchess of Newcastle, another part delivered by himself to Mr. Monk, and the third part taken with him to Jamaica, and there pulled out and declared to be his Will, and yet intent no real Disposition of his Estate by all this. These are things so dishonourable to the Duke, that they are not easily to be believed of a Man of his Honour and Quality.  
I confess, this is an Objection of great weight, and carrieth much Presumption with it, but it is Presumption only, which how far it shall conclude against a Verdict, is left to Consideration. But besides, I 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 myself 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 engrossed by Thompson, the Summer before the Duke went to Jamaica? The Jury have found that this Deed was executed in 81. And if than 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 expressly 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 Duchess 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 Daughter's 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 Surprise 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 Surprise and Practise 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 Duchess, 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 the Paper-draught where the date is in Blank, but must be from the Deed itself: And how should he have the Deed to do it by, unless it was in the Duke's Custody?  
Besides, there is a strong proof, That the Will of 75 was in the Earl's Custody once; for the Duke sent to him into the Country for it, and the Earl brought it up with him; for it is plain by the wording and framing of the last Will in 87, my Lord Chief Justice Pollexfen had it in his Custody for comparing the one with the other; they run so in the same manner, that it is impossible but he that drew the last, must have the first by him at the same time.  
How then came this Deed of 1681, and this Will of 1675, into the Custody of the Earl of Bath, under the same Cover with the Seal of the Duke of Albemarle's Coat of Arms on it? for so it was produced first by the Earl of Bath, after the notice of the Duke's Death in Jamaica. This cannot be imagined how it could be any otherwise, than as the Earl of Bath says in his Answer, that they were delivered so to him by the Duke a little before his going beyond Sea; or else that the Earl of Bath found them so sealed up and covered among the Duke's Writings. And either way it is a mighty strong Proof, that the Deed was all along till he went to Jamaica in his own Custody, and not in the Earl of Bath's.  
But however, it is further objected, That it was a forgotten Deed. Methinks what I last urged is a very good Proof it was not forgotten: but there is yet further Proof of it. Not long before he went abroad, the Duke had some Discourse with Mrs. Crofts, who (as she swears) was told by him, that she should have a good Neighbour at New-hall if he should miscarry beyond Sea, to wit, my Lord of Bath. And Lane, that is one of the Duke's Servants, doth swear, that the Duke told him, That after his Death the Earl of Bath would have New-hall. Mr. Crosts swears, That upon his Application to know who he should address to in case of his Grace's Death, the Duke told him, all he could do for him, was to recommend him to the Earl of Bath, and Sir Walter Clarges, and ordered him to leave the Keys of his Writings with the Earl of Bath; for he was most concerned in them in case he should do otherwise than well.  
It is proved that the usual Discourse of the Family was, that the Earl of Bath would have the Estate after the Duke's Death, which must happen from some Expressions of the Duke to that purpose. And Sir Walter Clarges doth in his Answer swear, That the Duke told him, he had provided for him as the Earl of Bath knew, which could be only by this Deed. And Mr. Greenville swears in his Answer much to the same purpose. And Mr. Courtney swears, That eight or nine Years ago, my Lord of Bath came to him with a Draught of a Settlement to the same effect to advise upon: And about three Months before the Duke went to Jamaica, he came again with a Copy of this Settlement to advise, whether a Will would revoke it; and that he gave his Opinion it would not, if the Circumstances of the Power were not pursued.  
But now here the Objection recurs again; Is it possible to be believed that the Duke should deliberately make so solemn a Will, take six months' time in the drawing and publishing of it, and then execute it in the Presence of three Witnesses, if he had not forgot this Deed, but had known all along that there was such an one? If he did know it, and had acquainted the Counsel that drew his Will with it, certainly he would have advised him, that unless he did revoke it, according to the Circumstances of the Power, all this Care and Solemnity would signify nothing.  
Truly on the other side it is to be considered, Whether the six Months was taken up in Deliberation and solemn Preparation for making of that Will; or, whether that was not an Evidence of a Difficulty to prevail upon the Duke to do it at all: For I must take the liberty to say, there are Proofs in the Case of Importunities used to bring him to it. Dr. Benwick did tell the Duke, unless he did it, the Duchess would have a Return of her Distemper, and be very bad again. It is proved, that when Money is to be paid for the Counsels Fees, upon drawing it the Duke was uneasy, and said, the Duchess might pay it if she would, for it was her Business. There appears great Difficulty afterwards to get him to execute it, that Sir Thomas Stringer importuned him much to it; upon which he grew very much in favour with the Duchess, and there was Enquiry made for a Baronet's Patent to be got for him: all to engage him the more to get this Work done; and when it is done, how doth he bring it about? The Duke was that Day to go by appointment to Sir Robert Clayton's to meet with my Lord Jefferies, and seal the Deeds of Purchase of Dalby and Broughton. Sir Thomas takes this Will in three parts, and three Witnesses along with him to Sir Robert's; and after my Lord Jefferies were gone, and the Duke in a fretting discontented Humour, he gets him into a private Room in that House, and then tells him he had brought his Will to him to seal; and the Duke, as Mr. Crofts swears, was unwilling to do it then, and would have put him off, but he pressed the Duke very hard to do it then, and told him he must do it, for he was to be gone the Northern Circuit the next day, and could not be at the Execution of it; upon which he did it, but not till after much urging and solicitation.  
Now I would argue hence, Why should the Duke of Albemarle be uneasy and disturbed at his being importuned to execute this Will, after so much Pains and so much Time in the drawing and preparing it? I cannot imagine any reason why, but that he had not forgotten this Deed, which he never intended to alter, and yet must do something to satisfy some body's Importunity. He knew he should in doing it, do a thing that would look very oddly one day, and that made him so uneasy, though at last he did comply and did it.  
But admit this Deed had been at that time forgotten by him, or concealed from him, Would this in a Court of Equity be a sufficient Ground to set it aside? I confess of a Purchaser where one that claims by such a Deed, will stand by, and permit the Purchase to go on and conceal the Deed; as to that Purchase the Deed will be a fraudulent Deed; but there is nothing of that in this Case, neither such a Purchase, nor such a Concealment: And therefore it can signify nothing here to set aside this Deed, though concealed and forgotten.  
But now I come to a third Head of Objections; That this Deed is a Deed attendant upon the Will of 1675, and so revocable in its one nature, as a Will would be, although it contained in it no Power of Revocation. This was very warmly insisted upon by the Counsel of Mr. Monk.  
I confess there is such a thing as a revocable Deed attendant upon a Will which is revocable; that is, where a Man doth suffer a common Recovery, and makes a Deed subject to his last Will and Testament; such or such an Use may be declared by Indenture under Hand and Seal as intended at that time of the Recovery. But this Indenture after it hath declared that Use being founded upon an Assurance that was always subject to Uses declared in his last Will, that Will being always changeable, the Deed may be always changeable: And so is the Case in Dyer 314. 6. And the Reason is given in my Lord of Ormond's Case in Hobart 349. by the Opinion of two Judges against one, because the Foundation, which is his last Will, is always revocable. But such an Indenture to declare Uses is revocable; but a Feoffment, or a Lease, and Release to Uses referring to a Will, or made to confirm a Will, that that should be revocable, there is no Colour nor any Authority of Law for it.  
The fourth Head is, That there is an implied Trust, that the Duke might charge this Estate to the full Value; therefore in Equity he might dispose of the Land. This Objection doth arise upon a variance supposed between the engrossed Deed and the Paper-draught: For it should seem that one of the Sheets in the Paper-draught is cut just where this Trust is declared, and so they would presume it a general Trust, which would subject the whole Estate to the Duke's disposal,  
But as to this Matter, it is sworn by Thompson, who engrossed the Deed, that he engrossed it by the Paper not cut, and did engross it truly according to the Draught, and he was believed by the Jury so to have done: Therefore, I suppose it was cut since; and if it were, the Question is by whom it was cut? Truly, I think it not worth the trouble of enquiring after that, but it is most probable it was not cut by those to whose disadvantage it would turn to cut it.  
But here doth arise a considerable Objection. By the Will of 75, there are 20000 l. Legacies given, and here is a Trust that doth subject this Estate to the Legacies of that Will of 1675, is revoked by the Will of 1687. Shall then the Earl of Bath hold this Estate free and discharged of any Legacies by the last Will?  
I must confess this was objected on one side, but not debated on the other side; because they that were of Counsel for the Earl of Bath, thought it did not concern this Question now in debate. That they said might be a Question another Time between my Lord of Bath, and any Persons that may come here to have any Legacies given them by the Will of 1687, if the Personal Estate will not answer, I cannot say positively but they may be payable out of this Trust, though I give no Opinion in the Matter, it not having been debated, and so I have not considered it.  
But sure the consequence of that, if it should be so, would not be what this Head of Arguments I am upon would infer: That if the Duke might charge the Estate with Legacies, therefore he might dispose of it, for he hath bound up himself by this Proviso not to dispose of it but under such and such Terms.  
And that brings me to the last Head; Whether this Will of the Duke of Albemarle, made in 1687, and so solemnly done, be a Revocation in Equity, though it do not strictly pursue the Circumstances of the Power.  
I know not any Rule more clear in our Law-Books than this, that all the Circumstances prescribed and required in a Power of Revocation must be observed to make it a good and effectual Revocation. So is Scroops Case; so is the Case of Kibbett and Lee. There is indeed a favourable Judgement to be given in expounding Powers, but both those Cases still agree that all the Circumstances must be strictly observed.  
It may be said then, they must be observed in Law, but in a Court of Equity it makes another Case. For when a Man hath a Power over an Estate, those Circumstances are only a Guard upon himself that he may not be surprised into a sudden disposition of it: But when deliberately and solemnly he hath done an Act whereby he disposeth of this Estate, but there wants some little Ceremony or Circumstance, such as the not tendering 12 d. or the like, a Court of Equity ought to supply such a Defect to support his solemn Intention to dispose of it. For plain it is, he is not surprised into this Act, and so the Reason for those Circumstances does fail, and they need not be strictly observed.  
This way of Arguing may seem specious in a Court of Equity I confess, but really I think I am able to give a very plain Answer to it, and that from the Nature of Powers of Revocation. It is certain no Conveyance at the Common Law could have a Power of Revocation annexed to it. As a Feoffment and Livery of Seisin; and that because the Law would not admit such an Absurdity that a Man should give an Estate absolutely to another, but yet reserve a Power to recall it from him at his Pleasure. It is such a repugnancy as the Common Law will not permit. But a Man might have done this at Common Law, he might have annexed a Condition to his Feoffment, that if he tendered 12 d. to the Feoffee or his Heirs, he might enter upon the Estate: so that the Estate which was Devested out of him by the Livery of Seisin, might have been revested by a performance of the Condition and Reentry. So it stood at Common-Law.  
But after the 27th of H. 8. for transferring Uses into Possession, Uses became more pliable than Conveyances at Common-Law, wherein this Matter, and then Powers of Revocation first came in use and fashion. Not but that it is as repugnant to a Conveyance after the Statute, as it was before; for certainly it is repugnant to give an Estate away, and yet have a general Power over that Estate. But a Power of Revocation was let in as a Condition, and would work as a Condition; but whereas the performance of a Condition at Common-Law, would not work a revesting of the Estate, without a Reentry; now the performance or execution of the Power doth transfer the Estate to the new Uses, or revest the Estate in him that had the Power without any Reentry. But still there is now a necessity of the Powers being performed, as there was of the Conditions being performed at Common-Law; for it is in the nature of a Condition and no more. So is Inglefield's Case, 7 Co. 39  
There was a voluntary Conveyance made with a Power of Revocation; and he who had the Power is attainted of Treason. Now all Conditions forfeited to the Crown must be performed, or no Advantage can be taken. This Power was in this Case agreed to be forfeited to the Crown; the great Difficulty was, Whether the King could perform the Condition, or whether the Performance was not tied strictly to the Person that had the Power vested in him? That was the great Doubt in that Case, but there was no question but it was a Condition, and the King should have it as a Condition forfeited.  
And it is likewise agreed in Co. Lit. 237. That it is a Condition, and would have been repugnant to be a general Power. So that it is not, as they say, a Guard only upon a Man's Self to prevent Surprise, but a Condition. And as a Man must perform a Condition at Common-Law to entitle him to Re-enter, so he must execute his Power, to entitle him to a Revocation. And a Court of Equity can no more let a Man in to defeat an Estate upon a Power of Revocation, without a due execution of the Power, than the Common-Law could let a Man in to defeat an Estate upon a Condition, without performance of the Condition; or than a Court of Equity can think to let a Man in to defeat a voluntary Conveyance, without a Power of Revocation: for it is all but a Condition which must be performed, or no Advantage taken of it; and a Court of Equity may do great things, but they cannot alter things, or make them to operate contrary to their essential Natures and Properties.  
I confess, where there is an Impediment of executing a Power of Revocation, or disability of doing it, a Court of Equity may perhaps interpose. And therefore suppose the Earl of Bath had always had this Deed in his Custody from the time of executing of it, and the Duke having a Mind to revoke it, had sent to the Earl for it; that though seeing the Circumstances required he might truly pursue them, but the Earl had refused to deliver it, and the Duke not knowing what the Power was, had done such an Act with a mind to revoke; I agree it is reasonable, that a Court of Equity should interpose to support it. But why is that? because the Earl who was to have the benefit by this Deed, was the Impediment why it was not strictly pursued.  
And that is a Reason which would prevail at Common-Law. I will put you a Case to prove it, Dyer, 354. A makes a Feoffment to B, with a Power of Revocation; if A at any time during his Life pay or cause to be tendered to B at the Font-Stone in the Cathedral at Sarum 20 l. A tenders the 20 l. at the Place in the absence of B, and without any notice to him to attend: this is held to be no Revocation. But saith the Book (as it should seem) if he had sent to B to be there, or some for him to receive the Money at the tender, and B would neither have come nor sent, it had been a good Revocation. So that where there is an Impediment by the Default of the Party who is to have Advantage by the non-performance of the Power; and he that hath the Power do an Act that expresseth his meaning to revoke, that shall be a good Revocation at Law, and in Equity.  
I agree likewise, that in case of Disability a Court of Equity may interpose; And I agree therefore, that in case the Duke of Albemarle had taken this Deed over with him to Jamaica, and there had had an Intention to revoke it, and had gone as far as he could to do it, had made his Will, and had six Witnesses to it, I believe it would be a good Revocation in Equity, though none of the Witnesses were Peers, because of the disability he would be under to have any such Witnesses.  
And so that defective Executions of Powers of Revocations may be helped in Courts of Equity, in the Cases of Purchasers and Creditors, I take it to be true too. And it is said other particular Cases there may be, wherein a Court of Equity can relieve, though the Revocation be not according to the Power reserved. And as to that, I confess, several Precedents have been cited, and I wonder, considering the Nature of them, that more have not been mentioned, but I think there are not above four or five very much to the purpose, and those I shall take notice of, and trouble you with no more.  
The first is the Case of Thorn and Newman; and that Case is no more in short than this. A Covenants with B to stand seized to Uses with a Power of Revocation upon the tender of 12 d. in the Temple-Hall. A tenders the 12 d. to B; who accepts it, but not in the Temple-Hall. The Question was, Whether this was a good Revocation in Equity? Truly I believe it was a good Revocation in Law.  
For suppose a Man makes a Lease reserving a Rent payable at Michaelmass, in the Middle- Temple-Hall, and there is a proviso of Reentry upon nonpayment according to the Reservation. The Rent is paid by the Lessee at the Day, but not at the Place; and the Lessor accepts the Rent, and afterwards Reenters for breach of the Condition. If he have once accepted the Rent, being privy to the Deed, that makes it a good performance of the Condition in Law absolutely. So is Co. Litt. 212.  
And so it is in case of a Bond to pay Money at a Day and Place certain; the Money is paid before the Day, and not at the Place, and the Obligee accepts the Money. If he after bring an Action upon this Bond, the Defendant can plead nothing but payment according to the Condition: and in Evidence he may give it in Proof, that though it was not paid at the Place and Day, yet being received by the Obligee before the Day at another Place, this is good Evidence at Law of Payment according to the Condition. And that appeared in the Case of Band and Richardson, Moor, 267. Aderson, 198. Cro, Eliz. 142. And this Case of Thorn and Newman I take to be a good Performance at Law; where indeed the Condition is to be performed to a Stranger that will alter the Case, but where it is to one that is privy to the Deed, I take it it is a good performance at Law, and consequently must be good in Equity.  
Another Case cited was that of Smith and Ashton, and that was thus. One Richard Ashton conveys his Estate in Uses, with a Power reserved in the Conveyance by any Writing under his Hand and Seal, to make provision for younger Children. Being sick, he prepares Instructions under his Hand, in order for Counsel to draw it into Form; and it is drawn into Form and engrossed: But before it is sealed, he dieth; and this was held a good performance of this Power in this Court. So here is a Defect in the Execution of a Power helped in a Court of Equity.  
As to this Case, I would observe, first, this is not a Case upon a Power of Revocation, to divest an Estate, nor a Performance of a Condition. But further here are Instructions prepared, and it went as far towards the Execution of the Power as could be, till an Impediment came in the way by the Act of God in the Death of the Party. Now I agree, where there is an Impediment by the Act of God, or Fraud or Default of the Party, who claims by the Deed, Equity may interpose. But that doth no way come up to the Case in Question.  
Then there is the Case of Dey and Thwaites, which was lately in this Court. Thwaites makes a Settlement to the use of himself for Life, and afterwards to such Child and Children, and for such Estate and Estates as he should by any Writing under his Hand and Seal, testified by two credible Witnesses, limit and appoint. He afterwards makes a Will, and has but two Witnesses to it, (so that they did not cite the Case right, that said there were not two Witnesses); but two Witnesses are not enough by the Statute to make it a good Will; and thereby he giveth a Rent of 100 l. a Year to such a Child, and dies.  
Now one great Question was, Whether the Power being to limit Estate or Estates, he might limit a Rent out of those Lands? It was held in Equity he might; and truly I think that he might at Law. There is, I confess, an Opinion against it in the Case of Brown and Taylor, where there were three Judges against one. But really I think it is good at Law.  
A second Question was, Whether this being void, as a Will by the Statute should be, yet a good Declaration of the Trust, and an Execution of the Power? And I think the Court of Equity did very well in decreeing it to be Good. For though it were not effectual in all Points (as it was intended) as a Will, yet it was a Writing which had all the Circumstances required by the Power; and therefore I see no reason to question whether it were Good.  
The next Case is the Case of Ward and Booth; and that stands thus: Sir Thomas Brereton made a Settlement, with a Power of Revocation, by a Writing under Hand and Seal before two Witnesses; and he in a Passion one day tore off the Label with the Seal, but afterwards repent. Delivered it to the trusties to be preserved to the Uses: And enquiring whether what he had done amounted to a Revocation? and being advised it did not, he was very well satisfied. This Cause came to be heard before my Lord Nottingham, and adjudged no Revocation, it appearing there was a continued Intention not to revoke. But I desire to read part of the Ground that Decrce went upon, for that justifies what I said, in case where there is a Disability or an Impediment by Fraud, this Court may relieve though there be a formal Revocation.  
There is but one Precedent more that I shall mention, and that I take to be directly for the Earl of Bath. It is the Case of Arundel and Philpott. Marry Philpott being a Widow, seized of Lands, made a Settlement upon the Defendant, with a Power of Revocation upon the tender of a Guiney. She afterwards makes another Settlement upon the Plaintiff, but without any proof of the tender of the Guiney. Upon a Bill suggesting her Intention to revoke, the Plaintiff could not prevail in this Court to set aside the first Settlement, but was dismissed to Law, and ordered to try the Title within a Twelvemonth, whether Revoked or not Revoked. And there were afterwards a Trial, and the Tender of the Guiney did happen to be proved, and so the Power was well executed at Law. But this Court would not interpose to set it aside as a Revocation in Equity upon the Intention only, without a proof of the due Execution.  
And upon the whole Matter I conclude, that in a Court of Equity there cannot be a Revocation of a Deed, to which a Power to revoke is annexed, but what is pursuant to that Power, unless there be either an Impediment from the Party that claims by the Deed, or a real disability to execute according to the Circumstances. And I think neither of these are in this Case, nor are any of those Matters alleged of Surprise, Circumvention, Concealment, or the like, any good grounds to set aside this Deed, if they were proved, which I think there is no pretence of.  Lord Chief Justice TREBY. 
I Am of the same Opinion with my Brother powel: I shall state the Case as it stands upon this Deed and Will. The Will was made in 1675, the Deed in 1681; and shall take notice (as I find there was much use made of it on one side) of what the Expressions are in the Will, and somewhat of what Deficiencies there were of Expression in this Deed.  
In 1675, the Duke of Albemarle made his Will; and by that Will he declares, That in respect of my Lord of Bath's being one of his nearest Kindred, and out of Gratitude due to him for many Acts of Friendship and good Offices done to him and his Family, his Will was that he should inherit all the Parts of his Real Estate not therein otherwise disposed of; and therein he desires the King to grant to the Earl of Bath, and the Issue Male of his Body, the Title of Duke of Albemarle; and that his eldest Son might bear the Title of Lord Monk: And this was intended in Trust to pay all his Debts and certain Legacies in the Will. He therein gives a Legacy of 1000 l. to Henry Monk, not the Father of the Plaintiffs the Monks, who it doth not appear was any ways related to him.  
Six Years after, in 1681, this Duke Christopher makes a Deed; and in that Deed recites this Will true as to the Date, but mistakes it in several Particulars. This Deed settles the main part of the Estate after the Duke and Duchess their death, without Issue by the Duke, upon my Lord of Bath, part of it immemiately after his own death, without Issue, other parts upon Sir Walter Clarges and Mr. Greenville: And it has been observed, that almost all the Limitations of the Estates in the Deed differ from those in the Will, at least in express Terms, if not in very Substance.  
This Deed also sets forth the Grounds why the Duke made it; and it is to this Effect. He doth declare he was so unfortunate, that his next Heir at Law was descended from a Regicide, and therefore I would observe it was not only to confirm the Will, as they would have it, but for preventing so dishonourable a Descent of the Estate which he owed to the Bounty of the Crown, and for conveying and settling, and assuring the Lands to the Uses thereinafter declared, and confirming and corroborating that Will which he did not intend to revoke, and to prevent any Claim either by the Heir or any pretended surreptitious Will, which might be obtained from him by Surprise: 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, though 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 trusties 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 Duchess 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 trusties.  
The intent of the Earl's Bill is, to have an Establishment of this Deed against this last Will; and the intent of the Duchess 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 Trial at Law; and it was most proper it should be so; for it concerned a great Inheritance and freehold 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 Trial 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 Encumbrances stand in the way, or be insisted upon, but any thing that obstructed the Trial of the Right should be set aside: So that in short, the Validity of this Deed was the thing directed to be tried; it was accordingly tried, 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 Judgement was afterwards entered 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 Trial; 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 remembered 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 tried, 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 myself 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 powel 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 Equity; I say, the Heads of Equity insisted upon, to set aside this Deed are four.  
First; Surprise and Circumvention in obtaining of it, and that relates to the Creation of it.  
Secondly; Concealment from the Duke, and this by my Lord of Bath, and so he was not informed how his Power was circumstanced, and therefore not able to execute his Power according to the Circumstances, which makes it become a fraudulent Deed, and for that Cause the Plaintiffs shall have Relief against it.  
Thirdly; Here is a Revocation in Equity, though it be not in all Points such as would be sufficient in Law, yet here is so much done towards it, such a Solemnity in the Action done, and such an Impediment of doing more, as will amount to an equitable Revocation.  
The fourth Head is that which was mentioned of the Trust in the Deed.  
As to the first Point of Surprise, it was a Head much laboured by the Counsel on the Plaintiffs side, and yet I confess I am still at a loss, for the very Notion of Surprise, for I take it to be either Falsehood or Forgery, (that is) though I take it, they would not use the word, in this Case, Fraud; if that be not the Meaning of it, to be something done suddenly and unawares, not with all that Precaution and Deliberation as possibly a Deed may be done.  
Here was a Case cited not long ago, in another great Case in this Court out of the Civil Law, about Surprise, but that was under another Head; that is, a Man was informed by his Kinsman, that his Son was dead, and so got him to settle his Estate upon him: this is called, in the Civil Law, Surreptio; I know not whether that Word will answer those gentlemen's Notions about this Matter. Now the Civilians define that thus, Surreptio est cum per falsam rei narrationem aliquod extorquetur; when a Man will by false Suggestions prevail upon another to do that which otherwise he would not have done.  
And I make no doubt but Equity ought to set aside that, but then this is Properly called Fraud, and that must be made out, it can never be intended. I find not any such thing pretended to be made out, that my Lord of Bath did use any false Suggestions to the Duke, or Informations at all, for what appears in the Proof; I beg Pardon if I mistake or forget any of the Proof.  
Then here is Matter of a Surprise objected, which must be something that will not avoid this Deed at Law, but will avoid a Deed in Equity, which yet is not direct Fraud or Falsehood in the Party, but is to be gathered out of the particular Circumstances of the Case; but what in certain to make of it, I confess I cannot tell.  
I would repeat the Words that the Plaintiffs Counsel used; they say it is absurdly drawn, it was unduly put upon the Duke, 'twas done without his perusing it, or having it read to him; it was contrary to his common Intention, before and after the Sealing of it. It must be admitted that there was Deliberation, and Consideration, and Intention enough proved to make it a good Deed at Law, otherwise there would not have been a Verdict for it: but it should seem there was not enough of these in Equity, and the want of this is what they call Surprise, and that must avoid this Deed in Equity.  
But I confess I am not satisfied that there were any Surprise in this Case in any thing; the Duke at the time of making this Deed was under no Force, no Restraint, no false Information, as I observe, no nor any Solicitation from my Lord of Bath at all; he was in his own House at his full Liberty, he was in very good Company; for I take it for granted, (as I shall insist further by and by) that Sir William Jones was by at the Execution of this Deed, and a Witness to it; the Duke was under no Sickness, no Weakness: and I must take notice of one Proof more which was mentioned, he had not been drinking, but was in very sober Company. This appears to be the Condition in which the Duke was at the Sealing of the Deed in question.  
But let us consider what are the Particulars of Surprise, that they who oppose this Deed insist upon; I think they are reducible to these three: There was a want of collateral Circumstances that use to attend the Execution of Deeds, made with good Deliberation, and without Surprise: Then there are some Observations made upon the wording of this Deed, which argue Surprise; and then they say it must be obtained surreptitiously, because it is contrary to his constant Intention, and all the Course of his Actings, as well before as after that time.  
First, they say there is a want of Collateral Circumstances that are to attend the Execution of Deeds made with good Deliberation, and without Surprise, and that it appears in these Particulars.  
First, it doth not appear who drew this Deed: It is certain, they say, that it could not be Sir William Jones, and I think so too: They observe, and with very good Reason, that he saying, I approve of this Proviso, doth prove that he did only concern himself with the Proviso, and did apply himself singly to that, and did not manage the Body of the Deed.  
Then it doth not appear that the Draught of this Deed was read, or the Deed subsigned or countersigned by Counsel, as was the Duke's usual Method; nor was there any Counterpart of the Deed: Whereas to the Will of 87, it was carefully drawn and made, and three Parts of it prepared, and then there were very great Persons concerned as trusties in this Deed, and yet several of them knew nothing of it.  
To this I must acknowledge, that the Objection is for the most part true; but how far it is an Objection, we shall consider farther by and by.  
First for the want of Instructions about the drawing this Deed, this is now above 10 Years before it comes in question; and such Instructions there might have been, but in length of time lost or laid aside; and when once a Deed is actually made, great Persons as well as lesser ones are careless of the Preparations for such Deeds: the Deed binds the Estate; and if that be carefully kept, there may easily be a Negligence as to the rest.  
I did observe before, that though the particular Limitations in the first Will, and this Deed, do differ, yet both Deed and Will do agree in Substance to settle the Bulk of the Estate to my Lord of Bath: It is likewise observable, that there is a strong Proof Sir Thomas Stringer drew this Deed, for his Hand is interlined in every Sheet of the Draught; and as I do remember, his Son writ it: Sir Thomas Stringer was at that time my Lord Duke's Counsel; and I confess there have been reported several things about this Matter from his Mouth, which because they are very various and inconsistent, I wish he had been alive, that he might have set all right; but as the Matter now stands here, it has rendered him very doubtful in the Case.  
I confess I do believe Sir William Jones had too little Patience, (give me leave to say so) and too much Skill to make such a Deed, I speak as to the Art and Skill of framing it; therefore I conceive he did not, but Sir Thomas Stringer did.  
As to the not reading of the Deed to the Duke, the Defendants Counsel do object, neither was the Will of 87 read to the Duke at the time of his sealing and publishing it: So far is true, that after it was engrossed and brought to Sir Robert Clayton's, it was not read to the Duke; but the Particulars of it he had been acquainted with at the time of the drawing, and so it might be as to the Deed too, for any thing appears to the contrary.  
That there was no Counterpart, and that the trusties were not acquainted with it; the Answer is, That the Duke did intend it as a Secret, and therefore the less notice was to be taken of it: and the Duke intending mainly by it an Advantage to my Lord of Bath, it was thought sit to be concealed, for some Reasons, from the Duchess.  
But after all, I know no such Rule in Equity, I am sure none of the Precedents that I have seen come near to it; that where there is a Deed, for the making of which no Instructions are found, no Proof of its being read to the Party at the Execution, no Counterpart, or the trusties not acquainted with it, that these are sufficient Grounds to set such a Deed aside in Equity: I do not think any of the Precedents, or all of them together (and I am sure I have read them all) will amount to prove any such thing.  
The second Matter to make out the Surprise, is some Considerations taken out of the Bowels of the Deed itself, several Improprieties of Expression, as (in part of Dower) and (in full of Dower) which are not Phrases that look like the Act of a Lawyer, one well skilled in the Propriety of the Law-Dialect: It doth likewise misrecite the Will of 75, that is particularly, as to the Lands given to the Duchess, that they are given for Life, when it was only during her Widowhood: the Lands are said to be given to Mr. Greenville as if he were immediate Devisee; whereas it is a Devise to him in Remainder after a Limitation to the Duke in Tail.  
But certainly Improprieties of Expressions and Misrecitals in Deeds, are too slight Acts to avoid Deeds so made, so attested, so proved, as this Deed in question has been: They are rather, and indeed Flaws and Objections that go to the Manner and Form than the Substance, and show rather want of Art in the Counsel that drew it, than of Honesty or Integrity in the Deed itself; besides that, a Devise to one for her Widowhood, is a Devise for Life in one Sense and common Parlance, though it be defeizable; and a Devise to one in Remainder, is a Devise to him though not an immediate one.  
Another Observation out of the Deed itself is, that here are Estates limited to the Duke's younger Sons out of Lands, which he had no power to create or carve such Estates out of, they being settled before upon his Marriage on the eldest Son; and that is true it is so, as to the Lands called Norton Disney: But there are other Lands not comprised in the Settlement, and all the rest that were new purchased, were in his Power to settle as he pleased.  
But the great Objection out of the Deed is this, that this Deed doth in several places declare itself to be made to confirm and corroborate the Will of 75. How comes it then to pass that it should differ from it in all the Limitations except one? and that in the Draught is of my Lord of Bath's own Writing; and that part of the Estate is by the Deed to come to the Lord of Bath, upon failure of the Duke's Issue Male only; so that his Daughters are all wholly debarred.  
To this I say, what they object, (that there is rather a Contradiction than a Confirmation of the Will, is true) I am not satisfied I assure you in that which the Defendants say to it, that the Confirmation of the Will is mentioned only, as to preventing the Descent. It is first mentioned there, but I think it goeth through and is repeated more than once: But that which I would observe is this, that this Deed does confirm the Will in the main, and substantial part of it, the settling the Bulk of the Estate upon my Lord of Bath.  
Besides, the Expression of the Deed is not only for confirming the Will of 75, but also for the settling the Lands to the Uses after declared; and if it doth not confirm every Limitation, yet it doth agree in the substantial Settlement of the Estate.  
It was further said, that the only Limitation which agrees with the Will, is that which in the Draught of my Lord of Bath's hand-writing, where Lands are limited to my Lord of Bath, after failure of Issue-Male, with Exclusion of the Daughters, which the Plaintiffs say it cannot possibly be imagined the Duke ever intended to do. But I must mention what Answer the Defendants give to it: They say the Duke had then 15000 l. a Year, and he makes an Intercession to the King to bestow the Honour of Albemarle upon the Earl of Bath, and that it might not go alone he limits 3000l. a Year upon his failing of Issue-Male; so that the Honour should come to the Earl, and there was enough left for Daughters. Now if their Valuation of the Duke's Estate be right, (which truly I know not) it is some answer, why some part should be given to the Earl only after the failure of Issue-Male.  
But then I would observe too, the Deed by this Obligation doth confirm the Will of 75, and that Will also affirm the Deed: If the Will of 75 were once well, as I see no colour to the contrary, than I am sure all their Objections from the Duke's contrary Intentions are all answered, that he never intended to give him his Estate; for if they admit that the Will was once the true Will of the Duke of Albemarle, then there was once an apparent Intention in the Duke of Albemarle to give the Earl of Bath the Bulk of his Estate if he died without Issue.  
Now as to the Variations in the Limitations of the Deed, from those in the Will, I think truly it stands indifferent as to one side or other. For here was the distance of six Years between them, and the Duke might alter his Mind; it might be one way one time, and another time another: he might alter his Mind as to his Daughters; he might after so many Years despair of Issue, and so not mind the making any Provision for them: He might change his Mind as to his other Kindred, and therefore might in these Particulars vary in the Deed from the Will of 75.  
But I would still have this observed, that in substance they do agree; he doth preserve the same Favour and good Intention for my Lord of Bath, to give him his Estate as his nearest Kinsman. If then these Limitations in the Deed were pursuant and agreeable to the Duke's then Mind, it is no matter if there be any such Variations or Alterations from what was in the Will; and that it was agreeable to his Mind then, I shall by and by take notice of some things that occur in this Case, and which seem to satisfy me in it that this was his Intent. For I did observe that one thing they insisted upon to show it was by Surprise, was, that this was contrary to the Intentions of both the Duke of Albemarle, and the constant Series of Purposes in the Family; and they undertake to give Instances of it.  
The Defendants Counsel say, that his Intention was to give his Estate to the Earl of Bath, who was his near Kinsman, to whom he had very great Obligations; that my Lord of Bath was concerned in that great Action of Restoring the Royal Family, which was the Raising of his own; that he was a constant Friend of Duke George and his, and his Sons chief Counsellor and Adviser; and that the Family were under great Obligations, is and must, be admitted both from what is in the Deed expressed, and what is otherwise proved.  
But the Plaintiffs say no, they had no such Intention neither one or other of them, and particularly Duke Christopher had none neither before the making of this Deed nor after. Duke George he makes his Will in June 1665, wherein he gives all his real and personal Estate to his Son, and nothing at all to my Lord of Bath. I did look into the Will, which is very short, and there is nothing given to any Body but his Son▪ That is the whole of the Will. Then in the Year 1669, is the Settlement made by Duke George upon his Son's Marriage; and there is nothing settled upon my Lord of Bath, not so much as a remote Remainder. In 73 Duke Christopher makes his Will, and therein gives great Legacies to the Duchess, but none to the Earl of Bath.  
These are Instances before this Will and Deed, but the Answers given them are these; which make me not satisfied with the Plaintiffs Objection or Proofs of his never Intending to give my Lord of Bath his Estate.  
First, as I said, Duke George's Will is very short, and taketh notice of no Body but his Son; and as he gives nothing in it to my Lord of Bath, so neither doth he to any Body else; and that very Devise is void, because it was to the Son and Heir to whom it would without that have descended: and it signifies very little to their purpose, being in the same Year with King Charles' Sign-Manual, at his Request, to promise the Earl the Dukedom upon failure of Issue-Male.  
As to the Marriage-Settlement in 1669, there is indeed nothing settled on the Earl of Bath, so much as in remainder; but in such Settlements Men usually do provide only for the Issue of that Marriage, and so leave the Disposition of Remainders to Subsequent-Settlements.  
As to the Will of Duke Christopher in 1673, at that time, they say he was but a Minor of 20 Years of Age, and it was only to dispose of his Personal Estate; for as to his Lands, if he had made any Devise of them, it had been void, and the personal Estate was at that time about 60000l. But within a Year or two after that, when he came of Age, is the Will of 75 made, and there is a mighty liberal Gift, made to my Lord of Bath; and pursuant to his Father's Desire, and King Charles' Privy-Seal, doth he make that Request for the Dukedom for my Lord of Bath.  
And it must be observed upon all these things, that as there is nothing given to my Lord of Bath in Duke George's Will and Settlement, nor in Duke Christopher's Will in 1673, so nor is there any Lands in either of them, nor in the Will of 1675, or Deed of 1681, given to Thomas Monk, the Father of the now Plaintiffs; so that that Objection is much stronger against them than against my Lord of Bath.  
Now I do not find any Proof of a Provocation or Cause given by my Lord of Bath, to make the Duke totally change from this Intention, to give him the greatest part of his Estate, and 〈…〉 put him quite out of his Favour, nor doth it appear he was so; here were several Letters read, there have been Copies of them brought us, and I have looked upon them; against these Letters it has been observed, that there is no notice taken in any of them of this Deed, but there is some of the Will of 1687, while the Duke was in Jamaica, about the Death of Colonel Monk.  
I confess I cannot say there is any one Letter that speaks of this Deed, by the Name of a Deed; but there is one or two that hath an Aspect upon it, and very near respect to it, and cannot refer to any thing else, particularly that which was written relating to my Lord Lansdown, when he was going to travel, and another about his Marriage, wherein he takes notice how much he was concerned in him, even next to his Father himself, as he very well knew; and that he wrote so much about him for Reasons best known to the Earl himself, this seems to point at some Conveyance, and aims at this Deed to my thinking directly.  
They have made another Objection, That the Duke never intended to leave any part of his Estate to Sir Thomas Clarges, because he was under the Duke's Displeasure upon account of something he took ill from him; but that receives an easy Answer, What is limited to him is but a Remainder, and that of no great Estate neither. Besides that, the Evidence of the Duke's being displeased with Sir Thomas, is but a hearing by a third Hand; but I find no Displeasure proved at all that was conceived by the Duke against my Lord of Bath to the last.  
Come we then to the time of making this Deed, and let us see whether the Duke did really intend what the words of this Deed do import; and that I think is made evident by Proofs that have not been answered or contradicted. The Deed takes notice of the very great and many Acts of Friendship and Kindness received by him and his Family from my Lord of Bath; and it is proved the Duke declared it ought never to be forgotten, nor could he ever make him sufficient Amends. It should seem he had procured his Father's Garter for him when he might have had it himself; he thereupon tells Mr. Prideaux, that he was settling or had settled his Estate upon my Lord of Bath, which must be much about the same time that this Deed was made. One of the Witnesses to the Deed says, at the sealing of it he wished he could have done more for him.  
But to me one of the clearest Evidences of the Duke's Intention to do this for my Lord of Bath, and that it was no Surprise upon him, is the Presence of Sir William Jones at the Execution of this Deed; for I do take it upon the Proofs it is most evident, that he was then present; and I will tell you what the Evidence of it is: Mr. Vivian says, he was often used as Counsel for the Duke of Albemarle, and principally relied upon; and this Vivian happens to be one of the surviving Witnesses, and he positively says Sir William Jones was there and a Witness to the Deed; so says Mr. Strode who knew him very well; and the third says there was a great Lawyer there, though he doth not pretend to know him, it is Clark: Mr. Hebblethwaite says he believes the Name endorsed is Sir William's Handwriting; and no better Witness could there possibly be for that purpose than he, nor could there be greater Evidence, than those multitudes of Instruments that were produced in Court, whereby to my Apprehension it did appear plainly that the Characters did very well agree.  
Now if Sir William Jones was there at the sealing of this Deed, I think I need say no more upon this Point: He was a Gentleman very well known to be both of great Ability, and Integrity and Reputation; and he would never have given up all his Honour and Reputation, and the Quiet of his own Conscience, to make one in a Confederacy of circumventing this Noble Duke, or defrauding any one of his Estate; and therefore believing him first to be present, which I really do, I cannot but conclude that it was really, and bona fide, done without Fraud or Surprise.  
Besides this Evidence, there are several Discourses also that have been proved, wherein the Duke hath declared both his Intention, and that the thing was done, which showeth he was not surprised into it: I name Mr. Crofts in particular, who must be admitted to be a good Witness, being one of the three Witnesses to the Will of 1687, and he says the Duke of Albemarle told him the Earl of Bath was to succeed to his Estate.  
It is indeed objected upon this Head, What needed then all this Privacy be used? Why should the Duke conceal it from the Duchess his Lady, to whom he had been so kind in it? why from the Duke of Newcastle and the other trusties, Persons of Quality and Honour? They say it could not be for any Dissatisfaction the Duke had with his Duchess, for they always agreed very well together, and they have read the Testimony of my Lord Marquis of Carmarthen, who says that he never observed a Couple to live better together, or any Woman to carry it better towards a Husband than the Duchess; and they have produced you some Letters from the Duke to her which show great Fondness and Affection to her.  
Truly in the first place, I do not know why any Reason should be expected to be given why he useth Privacy in any Action he doth; sure he may, or he may not at his Pleasure: There may be private Circumstances that may induce him (and that with very good reason) to use more or less Privacy in the Affairs he transacts. But besides this, they bring you in Proofs, that I cannot but mention, that the Duchess had conceived a Displeasure, though it be not known for what Reason, against the Earl of Bath; that the Duke was uneasy under her Importunities to do what he had no mind to, and that was the cause of his drinking so hard to divert himself. The Duke was apprehensive she would pursue her Displeasure against my Lord, and he should have but an unquiet Life if she came to the knowledge of this Settlement, at least till she had prevailed with him to alter it, which he resolved not to do.  
Now it may be (I speak it with all due Respect to my Lord Carmarthen's Evidence) that the public Carriage might be plausible, especially in the presence of one of his Quality, and yet there might be some late Displeasure which might break out amongst themselves whenever my Lord of Bath came in Competition with those for whom my Lady Duchess had more Affection, and would make use of her Interest in the Duke about it; and the Counsel for the Plaintiffs could very hardly maintain but that the Duke had once an intention that my Lord of Bath should have his Estate, till, say they, he came to have the knowledge of one of his own Name, whom he designed to prefer and provide for.  
If so, than I am sure, the first time that any such change of Mind doth appear, is by this Will of 1687, for before that they do not pretend to any thing done for Colonel Monk; and that will serve to answer that Objection, that this Deed of 1681, was against the Duke's constant Intent before and at that time.  
It is true, he doth call Colonel Monk Cousin in his Will of 1687; whether he was akin to him or no, doth not appear in proof at all in the Case, but on the contrary, it is in proof that my Lord of Bath is really near akin to him; and it was as much his Intent when he made this Deed to keep up his Title and Honour in my Lord of Bath's Family, as can be imagined or conceived.  
As to the Will of 1687, that doth declare his last Intention, and that they say is most probable, that my Lord of Bath should not have the Estate, but Colonel Monk should: for it was a Will made with a great Deliberation, being five or six Months preparing, great Advice about the drawing of it taken, particular Instructions by himself given, several Copies made and left with several People. On the other side, they observe the distance of Time, six Months between the Preparation and Execution, which is not an Argument that he was very forward to do it, but rather an Argument that he was very unwilling to do it; and the very time of executing it was when he was very uneasy about his being forced to execute the Conveyances of Dalby and Bronghton to my Lord Jefferies: His Mind was then disturbed; but if he had had a real Intention and Purpose to revoke the Deed, he had an opportunity to get this Revocation done in their Presence, and afterwards he might easily have got a third Peer.  
The great Objection is, What should the Duke take all this Pains for, and this Care and Thought about the Preparations for this Will, so carefully execute it, deliver the several Parts to several Persons, and all for nothing? I do admit it is a great Objection, and I think there is but one Answer to it, but that is a pretty plain and strong one, Why was all that Care and Thought used about the Will of 1675, and the Deed of 1681? did he intent nothing by it then? And if he did then intend something, what Provocation, what Demerit, what was done or left undone by my Lord of Bath, to change the Duke's Mind, that whereas before he gave him all his Estate, now he should give him never a Farthing? Truly I think it was the Duke's intent to do this last Act only for his own Ease. He knew the Duchess had a Displeasure to my Lord of Bath, and therefore he himself designing to express his Kindness to my Lord of Bath, would make such a Deed, and put it out of his own Power to alter it upon any slight Attempts, or unless he should have reason to change his Mind towards him upon extraordinary Occasions and Circumstances; so by not applying with these extraordinary Terms in the Power, he could preserve his Purpose towards my Lord of Bath notwithstanding any Attacks upon him, and yet by such a Will as this he could pacify the Importunities of the Duchess, who not knowing of the Deed, did acquiesce in a Settlement by Will, so things might pass easily, and he not being disturbed by any Bicker or Misunderstanding between the Duchess and my Lord of Bath.  
And truly it appears by what Dr. Berwick saith, That the Duke was to buy his Peace at home by such a compliance: For he was told, the Duchess would be very bad as to her Distemper, if her desires were not answered; and in Jamaica there is Proof of very great uneasiness the Duke was under, the Chamber was locked up, and Persons that came to him were forced to come in at the Windows.  
I have been long upon this Head of Surprise, because it was so much laboured by the Counsel for the Plaintiffs; but after all this, I think it is but a short Point. Here is a Deed made in 81, fully proved, and found to be a good and true Deed by a Verdict at Law, and as such, is a good and sufficient Conveyance of the Land at Law; and there is made to my Lord of Bath, pursuant (as to the Ground and Substance of it) to the Will in 75, though all the particular Limitations do not agree: here is no Fraud, no Falsehood proved, no Practice that appears at all upon the Duke to obtain it. But here is the want of a Counterpart, and want of Notice to the trusties, and there must be Matters to make out a Surprise to set aside this Deed.  
I confess, I am at a very great loss upon what Ground of reason that Rule is founded, and am totally to seek for a Precedent to be guided by in the Case, and therefore I cannot but be of Opinion that it cannot be set aside in a Court of Equity upon that Point.  
The next thing is that of Concealment; They say, that this Deed was secreted and concealed by my Lord of Bath from the Duke of Albemarle, that he might not know the particular Circumstances of his Power, so as to pursue them when he had a purpose to execute it; and this they ground upon a Matter of Fact, which they say is testified by one of the Witnesses to the Deed, that the Deed at the time of the Execution was delivered to the Earl of Bath, and so they say it was kept by him, and the particulars of the Power were forgot by the Duke, and so he was not informed what he ought to do, nor enabled to make a perfect Revocation. They say likewise, this Deed was concealed and not discovered upon the Sale of part of the Estate conveyed in it to my Lord Jefferies, and Leases and Annuities granted. But that which they insist upon (as I by my Notes take it) is a passage in my Lord of Bath's Answer to their Bill, That about the Year 1686, my Lord Duke sent to the Earl for his Will in order to make a new Settlement of his Estate, and this was just before he made the Will of 87.  
Now truly I think it may have this short and plain Answer, The Duke if he had a Mind to revoke this Settlement, had more need of the Deed than the Will, he might revoke the Will without looking into it by making a subsequent Will; but he could not revoke the Deed, because he was by the Proviso circumscribed to the observance of such and such Circumstances; say they, those Circumstances the Duke be apt enough to forget: and then when he knew the Duke's purpose to alter the Settlement of his Estate, my Lord of Bath should have been so ingenuous as to have sent the Deed, or have acquainted him with the purport of it, and should have considered that the Duke did mostly need that to effect his purpose, more than the Will to revoke, that he might observe the Statutes of Frauds and Perjuries required by three Witnesses to make a good disposition of Lands by a Will, and without much ado, that might be complied with: But yet all the while this Power not being observed, all his Counsel by subtle Advice, told him would signify nothing, therefore he would not discover that, and not doing it, it must be a fraudulent concealment in him sufficient to set aside this Deed.  
They say it's no Objection, that this was not a fraudulent Conveyance in its Creation for every Man; shall be relieved against that which being by Fraud concealed from him, he could not make such reasonable Provision against, as if he had known of it he might have done. Truly, I do think this is the best Ground of Equity that has as yet been offered in this Case; and were it not grounded upon Facts, which in truth upon the proofs are quite otherwise, I should think it were a good Ground for Relief: for wheresoever a Man doth endeavour to inform himself of the Circumstances of his own Power and Condition, in order to revoke such a Settlement, where he has a Power so to do, and is hindered from coming at the knowledge of them, and especially by that Person whose Interest it is to prevent a Revocation, he ought to be relieved in such Case: For it is against good Conscience that any Man should profit by any such sinister Practices. Therefore I say, the Objection were good, if the Fact were true.  
But alas, it is founded in this Case upon Presumption merely: It doth not appear that the Duke was desirous, or needed to be informed at all in the Matter, or that he did really intend a Revocation. We do not hear any proof that he did ask or speak to any Counsel about it. Nor is it true in Fact, that the Duke should expect the Deed out of my Lord of Bath's hands, nor indeed could he expect any such thing; for I take it, it stands plain in proof thus.  
My Lord of Bath says in his Answer, That the Deed was delivered to, and kept by the Duke: They say, that Answer of his, being a Defendant, is not to be regarded; for it is replied to generally, and so the Facts not acknowledged any further than they are proved. But to that, I say, the Plaintiff must prove that this Deed was in my Lord of Bath's hands; they say Aleman proves it, who says it was delivered into the Earl's hands. This was looked upon as so material a Point in this Case, that the Deposition was called for to be reviewed; and upon reading it again, it was plain it must be understood of the delivery of the Deed only to execute it, and make it a good Deed, not a delivery into his Custody.  
Nay, there is farther strong Evidence, that it was in my Lord Duke's hands, and not in my Lord of Bath's; for Sir Thomas Stringer doth a little before the Duke went beyond Sea, make an Abstract of it, and delivers it to his Man to make a Copy of: And when after the Duke's Death both Deed and Will were produced under one Cover, (but it is plain the Will was delivered to the Duke) this answers it, and agreeth to what my Lord of Bath saith in his Answer, that they were both delivered to him by the Duke a little before his going to Jamaica, under that Cover, and sealed with the Duke's own Seal, and so they are found.  
And truly if it were but doubtful whether it were in the one hand or the other, we must not determine that it was in my Lord of Bath's hands, or convict him or any Man of Fraud where the Evidence is doubtful; it ought to be proved, and plainly proved; for Fraud is a thing odious, and never to be intended or presumed.  
But the truth was, this Deed was concealed not from the Duke, but from the Duchess, that she or her Counsel should not get at it to procure a Revocation.  
As for the Case of Charles Clare that was mentioned, it doth not in any sort come up to this Case: he had lent Money upon a Statute, afterwards Money is lent upon a Mortgage of the Lands liable to that Statute: He engrosseth the Mortgage, and never discovereth the Statute; the Lands were not worth more than the Mortgage Money; and by reason of this Concealment it was adjudged Fraud in him, and he should have no benefit of his Statute against the Mortgagee. Here was a knowledge proved in the Case, which is not in my Lord of Bath's, that the Duke would revoke; and yet I must needs say, and I appeal to those Gentlemen that usually attend at this Bar, whether they did not think it a hard Case.  
And as to the Case of Raw and Pott, besides, that it was a Case between a Younger and an Elder Brother, and so might have a better Ground or Handle for Equity, yet I think it was justly decreed, because the Party knew it and concealed it on purpose, and encouraged the thing; for when he was asked why he did not discover it? then he answered, If he had, than there would have been a Fine levied and a Recovery suffered, and then he knew all would have been well enough; but there is no such matter as knowledge or the like here.  
The next Head of Objections is that of a Revocation in Equity; and for that the first thing insisted upon is this: They would have the Deed of 81 to be depending upon the Will of 75; it was ancillary, it leaned upon it; and therefore this Will of 87 revoking the Will of 75, revokes likewise the Deed of 81: And for this they did cite two Cases out of Dyer; The first is, fol. 49. 6. A Man makes a Feoffment to perform his last Will, and the Will is annexed to the Charter of Feoffment, and Livery of Seisin is made; accordingly it was adjudged that he might alter and revoke that Will, though it took effect by the Livery: For that doth not alter the Nature of a Will, which is always revocable by the last Will; But doth that revoke the Deed too? No certainly, the Deed stood good, and there is nothing to the contrary appears in that Book.  
The other Case is Dyer 314. 6. A Man by Deed indented declares, That whereas he had suffered a Common Recovery to the intent to perform his Will touching the Disposition of his Lands, he Wills so and so; and whether he could during his Life alter the Uses in this Indenture, was the Question; and it is held he might: For this Indenture is quasi a Will which is changeable; I will go further than that, I say it was a Will, or it was nothing; for though it were in form of an Indenture between several Parties, yet when he says he Wills so and so, after he had recited a Power to declare by Will, this must be taken for a Will, or it is no execution of the Power: for when a Man suffers a Recovery, or makes a Conveyance to me of his last Will, he hath two Interests in it; he may dispose of it as Owner, or by way of Direction; If he will dispose of it by way of Direction as this was, he must follow the Method prescribed, and that must be by Will, and so this must be a Will, or no execution of his Power. But what is that to this purpose, that a Will, which a Deed is made to Confirm being revoked, that shall revoke the Deed too; sure that is no consequence, nor hath any Ground upon this Case.  
But then, say they, here is a Revocation, and that a Revocation in Equity: for though it be a good Deed in Law, yet there is such a contrary disposition by this Will, as must revoke it, being revocable according to the Power. Indeed here is not the Number of Witnesses required, nor the Quality, nor a tender of the Money and Powers of Revocation: for it is natural Equity, that he who is Owner of an Estate should dispose of it as he pleaseth. But there is another Rule of Law that is as certain as any other, that all Circumstances must be observed, or the Power not well executed; and that is Scroop's Case, and other Cases that have been mentioned: And tho' the Law will go as far as it can to expound the Circumstances as a Performance, yet a Performance is necessary.  
The Foundation for this Revocation in Equity, which the Plaintiffs go upon, is this, Where there is a deliberate Intent to make a new Settlement of the Estate, and a Man goeth as far as he can to make it, there Equity shall supply any Defect.  
First, I must deny that in this Case the Duke of Albemarle hath done all that he could do; for he thought six Witnesses necessary to the Will of 1675, and six Witnesses to the Deed of 1681, and so provides in this Power for Revocation, besides other Circumstances, and here are only three Witnesses to this last Will.  
Neither is this a proper Settlement of a Family; for it doth not appear that Mr. Monk, who is mainly taken care of in this last Will, was any kin to the Family at all: Nay, it should seem the Duke was not spontaneous about it; for he would have the Duchess pay the Counsels Fee as for her Business. When he came to execute it, it was not a place that he came to for that purpose, but upon quite another Affair: He would have put it off to another time, he would have avoided it, it was done in a hurry, and before Witnesses prepared for that very occasion, and brought from Newcastle-House; and therefore it is not so much his Intent and firm last Purpose.  
On the other hand they oppose this Argument thus, That the Duke did at the same time write to my Lord of Bath, that his Purposes toward him were unalterable; and what his meaning in that should be, unless his purpose not to revoke this Deed and Settlement, truly I cannot tell, he left the Keys of all his Evidences with him when he went away, Crofts was ordered to deliver them to the Earl as chiefly concerned, if he should miscarry; he trusts him with the chief Management of his Affairs, directs him to be advised with upon all occasions, as he used to do himself before, and so is the same still towards him in all respects as ever he was.  
I do not find in any of the Plaintiffs Proofs, that there is any Cause shown for altering this Mind of my Lord Duke's, if he had not himself declared it so, to be unalterable. There was no Provocation on the one side, or increase of Merit on the other side, why he should change from his Kindness so grounded towards the nearest Relation of his Blood, to entertain a Stranger, to whom he had never a thought of giving any thing before. It is hard to think that my Lord of Bath, Sir Walter Clarges, Mr. Greenville, and even the Duchess herself should continue the same, and the Duke should not; I find no Evidence of it, nor can tell any Reason for it; and without Reason I cannot be induced to give my Opinion against a Deed really, deliberately, intentionably made, upon only the single Act of this Will, testifying so great and total a Change; surely if any such thing had been meant, it was very strange he should take no notice of this solemn Will and Deed made before, and ask Advice whether it were not sit to revoke or look into it.  
To my thinking the Duke hath in effect declared that this Will in 1687, should be taken for a Will as obtained by Surprise; for he binds himself by this Proviso only to revoke in such and such away to prevent Surprise. We then find there a Will that wants these Circumstances required in the Proviso, and then we must take it to be what he intended to fence himself against; and nothing doth reconcile the Duke to himself in this matter, but that he was apprehensive he should be drawn to do something that was against his Mind; and therefore he doth fence himself with this Proviso against all such Attempts.  
The Will and the Deed do both provide largely for the Duchess; but whether the Will doth it so liberally as the Deed doth, I cannot tell: they did talk as if there was 3 or 4000 l. Difference; I cannot tell what, as to the Value it may be, but I am sure in this Will there is no Provision made for my Lord of Bath at all, and there is none for Mr. Monk in the Deed, or any other thing before this last Will.  
I must crave leave to differ from the Counsel for the Plaintiff, in what they take to be a Ground for a Revocation in Equity, that the Duke had forgotten this Deed; I am not satisfied that upon that Ground only this Court should relieve against it: And my Reason is this; Suppose his Intention to revoke do appear, it ought to be in such a manner as the Law requires, and pursuing such Circumstances as he has put upon himself, because here is a voluntary Conveyance on both sides; and where there are two voluntary Conveyances, he that hath the Advantage at Law ought to keep it. And so the Resolution was in Fry and Porter's Case; and I take it to be the standing Rule in Equity: For what shall turn the Scale? shall the Defendant urge any thing of Merit? that cannot be in this Case; but in the Eye of Law they are both equal under the Consideration of the Court, and in pari gradu: And indeed if it should be otherwise, what would become of Circumstances in Powers of Revocation? by which Men shackle and circumscribe themselves with very good Reason at their Creation, if the last Will alone shall set aside all.  
It is objected, that it was always the Duke's solemn Intent to prevent the dishonourable Descent of his Estate upon his right Heir at Law, who sprung from a Regicide, and to prevent a Surprise by a sudden surreptitious Will, and both these Ends are attained by the solemn deliberate Preparation for his Will, and the Disposition of the Estate to Mr. Monk; and it is substantially, and therefore equitably performed, though not strictly legally.  
I think there was a further End in this Deed, and that was to settle his Estate upon a Person of Honour nearly related to him in Blood: And this Court cannot take it from him without reflecting on this Settlement, and upon him that made it, and upon him for whom it was made. No, nor can it be done as I take it, without performing the Circumstances required and prescribed for that purpose in the Proviso, without which I think this Court ought not to determine, that the Intent is performed, or that his Mind is changed. And if we shall depart from these Limits, I cannot tell where we shall stop: I can set this as a good Limit; here is a voluntary Conveyance on the one side, and a voluntary Conveyance on the other side; the latter Conveyance must make it out, that the Circumstances requisite are performed, and if not, I think the Law must decide it; and there hath been nothing made out, by which, as I conceive, there can be any Advance given in a Court of Equity to determine it otherwise than the Law will.  
I shall speak but very little to the other Head. It is objected and asked, whether there should be no Relief in any Case where there is a Defect in the Execution of the Power; I think that would be very hard on the other side; and it would be convenient Relief should be given in these Cases.  
First, for a Purchaser; I speak not now of a Purchaser for a valuable Consideration without notice, for that is helped already by the Statute; and so where there is any Fraud, or the Party is guilty of any Deceit or Falsehood whereby a Man is prevented from executing his Power, though he never so much intended or desired it.  
But there is no such thing here, and the Plaintiffs Counsel were wiser Men than downright to call this Fraud only, they style it Surprised Circumvention.  
I think also it may be fit for this Court to give Relief where there is a foreign Consideration; as Consideration for Payment of Debts, or providing for younger Children: As where a Man makes a Conveyance, or makes a Will, and chargeth his Lands over, which he has such a Power, for Payment of his Debts, and the Circumstances of the Power are not exactly observed, there shall be Relief in Equity for the sake of the Matter: Paiment of Debts is a most conscientious thing, and fit for a Court of Conscience to take care of, and see performed: And providing for Children is a thing of the same Nature; they are looked upon as Creditors; and I think this is reasonable, and the Precedents have all gone that way.  
The Statute of 33 Hen. 8. which gives a Man Power to devise Lands by Will in Writing, recites it as reasonable, that a Man should dispose of his Estate to pay his Debts, and provide for his Children, but goeth no further. Those were wise and prudent Considerations upon which the Law did enlarge a Man's Power of disposing of his Estate; but there is nothing of either of these in this Case; every one will say, he is not a Man of good Conscience that will not pay his Debts, or provide for his Children: But will any Man say that my Lord Duke had not been a Man of good Conscience if he had not given this Estate to Mr. Monk, or to my Lord of Bath either? He might lawfully and conscientiously give it to the one or the other, but there is no Consideration of Equity appearing why he should be obliged to it, or to take it from the one to give it to the other; he might use his Liberty according circumstantiated his own Power.  
Another Ground of Relief in Equity is Accident, or an Impossibility of complying with the Circumstances when he hath a plain Intention to do it: I agree it is so, but then he must do all that he can: As the Case that was put of a Man's being obliged to pay or tender Money at such a Place, and he falls sick or lame, or Bedridden, that he cannot go thither, and it is tendered by another by his Order, or at another Place; this being the Act of God, I think it would be a good Performance of the Condition; and that I think is the best Answer that can be given for the Decree in Popham's Case.  
But now here, when the Duke was informed of his Power, or might have been, and neglected all, and performed nothing; shall this Court supply these Neglects and Want of Performance? sure they may as well supply all the rest; that there should be no Hand, no Seal, and for aught I know no Will or Deed, but only a Parole Declaration.  
There is one thing that I should properly mention last under this Head; they object it is not said, That it should be in the Presence of six Witnesses altogether. Now it was in the Presence of three Witnesses here in England, and three more in Jamaica: and so here are six Witnesses, though not all at once, and there was no Peer to be had as a Witness in Jamaica: So there is an Accident rendering it impossible to have any such, and therefore Equity will relieve against such an Impossibility.  
I do agree, if the Duke had gone about directly to make and publish his Will in Jamaica, with an Intention declared to revoke this Deed, and had had six Witnesses to this his Act and plain Intention, there being no Peer to be had there, it should have been a good Revocation: as in the Case mentioned by the Counsel of Hibbett and Lee in my Lord Hobart 312. Indeed if the Power were limited to be executed in the Presence of three Subsidy-Men, it is said in the Book, that they must be averred to be Subsidy-Men: But yet I take it now, that old way of Subsidies is out of use; three substantial Men that would have been Subsidy-Men, if that were the present way of taxing it, would be enough: For none such would be had, nor could there be any Peer in this Case that is put.  
But to consider the Case and Proofs, as to Jamaica, what it amounts to, I would fain know how it appears that it was the same Will that he executed at Sir Robert Clayton's; the Duke only said, Doctor, this is my Will; perhaps it was the same, perhaps it was not: But how comes his writing his Hand and Sealing in the Presence of three Witnesses, and declaring it after to be his Will, (to make the most of it) in the Presence of three more to be an Execution in the Presence of six Witnesses? But beyond all this, here is no Proof that he did intend to publish this as his Will, it is only a private Saying of his on the by, when he saw it among other Papers, which then he showed to Dr. Sloan: He was not then solemnly making his Will, or executing his Power; he doth not so much as bid them take notice that he declared that to be his Will, or any thing to make them remember it afterwards. So that I take it, it signifieth nothing as to this Matter.  
I would trouble your Lordship no longer, for I have been long enough already, I am loath to meddle with the Cases and Precedents, because that may take up too much of your time; but because the Precedents have been brought me, I must say something to them, to show that I have read them, I will therefore open some of them, such as I think come nearest the Case.  
They say the Common Law goeth as far in relieving, upon Cases of Powers of Revocations, as appears by Hibbetts and Lee's Case, that I mentioned but now, where a Will is declared to be Writing. So the Case of Thorn and Newman's Payment in another Place than that required in the Proviso; in that Precedent it is recited, that the Endorsement on the back was, that the Money was paid according to the Proviso, and no notice taken of the Place, for upon the very reading of the Endorsement the Plaintiff was forced to be nonsuit: And afterwards that Matter was disclosed in Equity, that it was in another Place than the Place in the Proviso, but yet no Relief against his own Acceptance, who was the Party privy.  
The next Case is the Case of Guy and Dormer: a Man sells his Estate with a Power to revoke by any Writing in express Words.  
Now here they did not help the want of a Performance, but the Judgement was, the Performance was real. Besides, I cannot allow that to be any Argument, that if the Law has gone as far as it may, Equity should go further. To me the Argument runs quite contrary, Equity shall carry it no further, for Equity should follow the Law.  
There were several Precedents cited by the Plaintiffs Counsel, but I confess upon Consideration of them, very few do come up to the Case in question. I shall take them as near as I can in order of time.  
The first is that of Prince and Green, 40 Eliz. There was a Power to make Leases intended to be reserved in a Conveyance by a Covenant to stand seized to Uses, and a Lease is made accordingly, as a Provision for a younger Son. This Power was not long after Mildmay's Case, and the Case in Rolls, Abd. 1 part, lit, Charge 378. But because, says the Order, neither the Party nor his Counsel did then know, but such Power was warranted by Law, though by late Judgements they were found to be void, and so it was impossible to them to prevent it, the Court did relieve in this Case to make good the Lease; and it is there said that the elder Brother, who would avoid the Lease, was an unreasonable Man; and this was a Provision for a younger Child: which is not our Case, either the Counsels Mistake of the Law, nor a Provision for a younger Child.  
The next is 44o Eliz. the Case of Ferrer and Tanner; A Man deviseth Annuities out of Lands to his half-Sisters, and gives the Land to his half-Brother, who makes over his Estate to prevent their being seized of the Rent in order to distrein; and the Court after some time, and upon sight of a Precedent, did relieve the Devisees.  
Here I would observe how difficult it was even for this Court to do that: For they say, the Heir that had the Land did promise the Devisor before his Death to perform the Will, and that was a Deceit, otherwise the Devisor might before his Death have done it by a Conveyance, or granted the Land with a Condition to do such an Act, or permit such a Thing. And that he did consent afterwards before the Master of Chancery to do it, I will not say but that this Court might have declared this Payment without these Circumstances, nor that these might not make the Case somewhat better. Indeed in the short Print of the Case in Moor 626. pl. 859. there is no Reason but the Resolution only.  
The next Case is in the Year 1655, the Case of Hamilton and Maxwel in this Court, which in short was upon very good reason, because it was a Provision for a younger Daughter, and that is urged on all hands to be a good Ground of Equity; and he declared that his elder Daughter was otherwise sufficiently provided for.  
Another Case is that of Bowman and Yates, and that is about a Covenant for levying a Fine for raising a Rent out of Lands, which was indeed defective at Law, but decreed in Equity to be paid and satisfied; but if it be looked into, I think will not appear very pertinent to this Case, it being only to support the Intention of an Agreement upon Marriage.  
This was 12o Car. 2.  
The next is the Case of Wallis and Grimes, 19 Car. 2. which was this; Sir Thomas Grimes, the Grandfather, makes a Conveyance in Trust for Payment of five hundred Pounds to younger Children; the Heir makes a Mortgage without notice, and this Trust is endeavoured to be set up against the Mortgagee, but the Court would not permit it: But this comes not near our Case, for a Mortgagee is in nature of a Purchaser.  
Then 20 Car. 2. thence was Pitt and Potham's Case in the House of Lords.  
There this Court did relieve, because it was a plain Intent the Land should be sold, and there was only a want of naming the Person that should sell, and the Law would help that. He that hath the Land shall do that Office, and that was next door to a Provision for Children, it being for a  
For the Case of Smith and Ashton, besides the Answer my Brother powel gave to it, has also this flat Answer to be given, that it was a Provision for Children; that was the next Case in point of time.  
Then comes the Case of Brisco and Peter, 28o Car. 2. I have as carefully as I can perused that Case, but cannot really observe how it is made use of in our Case. And it is very much to be considered that it is no Rule between two voluntary Conveyances, how far a voluntary Conveyance shall be fraudulent against a Purchaser.  
The next Case is that of Thwaytes and Dey, which hath also had a full Answer given to it already. It was doubted, whether it was a Seal to it; but the Court seemed satisfied with that, and all the remaining Question was, Whether a Man making a Conveyance, and reserving a Power to make any other Estate, could charge that Land with a Rent for a younger Child; and the Court held he might, and I think it a good Decree.  
These are the Precedents that are brought on the Plaintiffs side; there are but few brought on the Desendants part, but two that I think are very material: the one is that of Ward and Booth, which hath been opened and applied by my Brother powel; but I would observe from what he quoted out of the Decretal Order in that Case, that it doth very extraordinarily declare the Limits of this Court's Proceedings, in such Cases as these. Here was not a formal Revocation, but a clear and express Intention to revoke. That doth not appear in the present Case. There should be, I agree, Relief in such Circumstances if there were Fraud in the Party; if there had been any Accident to render it impossible, to execute the Power in all Formality. But here is neither Fraud nor Accident, and therefore by the Reasons and Rules in that Case, there can be no Relief in this Case.  
The other is Arundel and Philpot's Case, and that is so very express an Authority for this Court's leaving the Determination to Law, that nothing can be more. They there say, where it is a voluntary Conveyance against a voluntary Conveyance, you must try and decide the Matter at Law; and it did fall out in that Case, that there was no need of a Court of Equity to interpose; for upon the Trial it did fall out to be proved that there was a due and legal Execution of the Power, that there was a Tender of the Guinea.  
As to the Matter of the General Trust, I need say no more than this; whether that would avail any thing upon a Controversy between the Legatees and my Lord of Bath, I cannot tell; but I am sure it is not material at all as this Case now stands.  
Yet methinks as to a General Trust, that it cannot be; for that were to make the Duke use all this Solemnity in making this Settlement to no purpose, and would render this Power of Revocation very useless and idle. The use of this Power was, because he had put the Estate out of him, both in Law and Equity, and so there could be no General Trust or Means to bring it back again without a due Execution of the Power.  
There are two or three small Objections more that I shall but mention, and conclude.  
First, they say several Grants will be avoided if there be no Relief against this Deed. That is, some Leases, some small Annuities to Servants, and a Grant of 100 l. to the Duke's Natural-Son: This is all. Now whether it is not reasonable to imagine, the Duke thought that the trusting the Earl with so great a part of his Estate, he would have more Honour and 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-Justice Pollexfen to draw this Will, make three parts of it; deliver one to the Duchess of Newcastle, another to Colonel Monk, and carry a third with him into Jamaica, and there take public 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 professed 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 persuade any one that the making of this last Will, was to satisfy another purpose, and make his own Condition easy 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 surprise 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 Honourable 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 men's Wills, or set them aside if legally made, especially than 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, aught 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, Judgement 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. Montague & al. adv. Com. Bathon. & al. & e contra.  Lord-Chief-Justice HOLT. 
IN this Case, wherein the Earl of Montague and the Duchess 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 bore 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 this Will, but in the Recital of it there are some Differences from what is in the Will itself, some Variations from it. In this Deed it is mentioned that the Intent and Design of the Deed was to dispose of the Estate according as was in the Will: And whereas it might be thought strange that the Duke by his last Will, which by that Deed he doth confirm and not intend to revoke, should give away his Estate from the Heir at Law: Therefore for the satisfaction of the World, the Duke doth declare the Reason which hath been frequently mentioned; and then the Deed disposeth of the Estate some to the Greenvills, some to the Clarges; but the Main and Bulk of the Estate he settled upon my Lord of Bath. But in this Deed there is a Power of Revocation to this effect, That it shall be lawful for the Duke at any time to revoke this Deed upon the tender of a Shilling, by writing under Hand and Seal in the presence of six Witnesses, whereof three to be Peers of the Realm, and then to limit new Uses.  
Then he makes his Will in the Year 1687, and therein he gives his Estate in a different manner; that is, the bulk and the main of it is given, instead of my Lord of Bath, to Mr. Monk, whom he supposeth to be his Kinsman, and desires that the Name and Title of Baron Monk may, by the King's Favour be bestowed upon him, in case he himself died without Issue.  
Now the Question is, whether or no this Will in 87 hath revoked this Deed made in 81 in Equity, for there are but three Witnesses to this Will, and not one of them a Peer, so that in Law it is very plain it is no Revocation at all; it cannot be a good Revocation there, because the Power is not pursued, the Circumstances are not observed; here is neither the tender of a Shilling, nor six Witnesses, whereof three Peers, nay not only so; but here are but three Witnesses in all, and not one of them a Peer.  
I am of the same Opinion with my Lord Chief Justice of the Common Pleas, and my Brother powel, that this is no Revocation in Equity, and that there ought to be no relief had by the Devises of the Will of 87, against those that Claim by the Deed of 1681.  
These things are to be premised as granted, and not to be questioned.  
First, That the Will of 75 was a good Will, there is no manner of dispate to be made of that.  
Secondly, This Deed of Release that was made in 1681, is a very good Deed, and there is no manner of dispute to be made of that neither; for if there had not been a Verdict in the Case, yet if they come to have the Opinion of a Court of Equity, touching Relief in Equity against this Deed, it ought to be taken to be a good Deed in Law, or they were not to come hither for Relief against it. And as this Deed is to be admitted to be a good Deed, so in this Debate all those Circumstances that appear in the Depositions are to be admitted to be true in this Cause. I do not say that they are never hereafter to be controverted, but now upon this Debate they are to be admitted true. As  
First, That Sir William Jones his Hand is to the Perusal and Approbation of the Proviso, and it is his Writing.  
Secondly, That he was a Witness to the Execution of this Deed. And  
Thirdly, That this is true which Errington swears about the Abstract of this Deed made by Sir Thomas Stringer, which being main Circumstances about the Deed, and Controverted, now must be taken for true in the Consideration of this Cause. And then a third thing that is to be admitted without all Contradiction too, is, that this Will of 87 is a good William.  
The Case standing thus, and all these things being taken for granted, the Question I say will be, Whether those that Claim by this Will of 87, can have any Relief against those that Claim by the Deed of 81? And I think there aught to be no Relief, but those that Claim by the Deed of 81, have a good Title in Equity as well as in Law.  
I shall not mention any thing of the Evidence that hath been given, or insisted upon to support the Deed, nor now answer any of the Objections made against the Truth of it; for I told you first, I take it for granted, that it is a good Deed, and a true Deed without all dispute. But to the intent I may comprehend all the Matters that I think are any way considerable, and fit to be insisted upon, I shall speak to four general Heads.  
First, I shall consider whether upon the Frame and Manner of this Deed of 81, there be any ground of Relief for the Plaintiffs against it.  
Secondly, Whether there appears upon the Proofs and Depositions in this Cause, that there was any undue way or manner of Obtaining this Deed from the Duke: Or any Way, or Contrivance, or Management for the Contriving it in being afterwards, which may produce a ground of Equity for the advantage of the Plaintiffs.  
Thirdly, I shall consider the Circumstances and Conditions of the Parties that are in this Cause, those that Claim by the Deed of 81, and those that Claim by the Will of 87, and whether upon that account there can be any Equity raised in this Cause. And  
Fourthly, I shall consider the Person of the Duke of Albemarle, and the particular Circumstances he was under at the time of making this Will in 87; and whether by reason of him from whom the Estate proceeds, or the Circumstances he was under, there will appear any ground of Equity in this Case.  
The first Consideration I say shall be, whether upon the Frame and Manner of this Deed there be any ground of Equity for the Plaintiffs against it. There were several things under this Head that were insisted upon by the Counsel for the Plaintiff. As  
First, That this Deed of 81 doth partake of the Nature of a Will because it recites a Will, and it is made to confirm a Will, and therefore shall be Revocable in a Court of Equity as a Will shall be in a Court of Law.  
Secondly, That it pretends to Recite the Will of 75, and there are several Mistakes in the Recital, and very great Variations from it.  
Thirdly, That there are several Dispositions different from those in the Will, which it pretends to confirm.  
Now for the first, To maintain that when a Deed recites a Will, and doth say itself is made to confirm that Will; therefore this Deed shall be Revocable in its Nature in Equity, as a Will is at Law, I must needs say, is a Motion that I never heard started before, I must confess I am apt to think  
with the Proceedings and Practice in Courts of Equity, that may make it so strange to me, it having been laboured with no small apprehended Clearness at the Bar. Therefore for that I must Appeal to you, who are constant Practisers and Attendants here, Whether it be not a Notion altogether New. And to me as it is a New Notion, so it is very fine, and seems impossible to be supported by any Reason, but must produce very strange Absurdities. It is not to me to be reconciled with any Reason of Law or Equity, as far as I understand any thing of either.  
For to say that a Deed is revocable, because it relates to a Will, is first to contradict the Nature and Essence of a Deed. For a Deed takes effect immediately upon the sealing and delivery, and is impossible to be altered from what it is and has in it, or to be revoked by him that made it. But because it relates to a Will, it shall be revocable as a Will is; That I say is a mere sine-spun strange Notion, not at all agreeable to Reason.  
Next such a Construction and Strain as this in Equity must overthrow the Intention and Design of him that made the Deed. For when a Man has made a Will, which is not consummate till his death, and after that makes a Deed, and limits the Estate in such a manner as it was disposed of by the Will: What doth this Man mean, but that those Estates which were or arise by the Will upon his decease, shall have immediate Effect during his Life? And whereas he thought with himself it might not be so convenient to leave his Estate wholly to depend upon a Will which might so easily be altered, it was his Mind and Intention that it should be made more firm by a Deed which is more permanent.  
Next it is a mighty Strain to make a Deed revocable as a Will; for than you must first set up again that Will which was thereby revoked, for you cannot imagine, but that when a Deed is made though to confirm a Will, the Estate limited thereby doth arise by the Deed, and the Will is revoked by the Deed. So you set up a Will that is no Will in Law, and that shall control a subsequent Deed which destroyed that very Will, which is strange, and contrary to all Rules of Law and Reason.  
There were some Cases quoted wherein a Deed shall control a Will, as Dyer 49. It is said, If a Man makes a Feoffment to the use of his Will, which was next at that time to the Charter of Feoffment, that that Will is revocable, notwithstanding there is an express Application in the Deed to that Will itself, and so the Uses arise by the Deed, not by the Will; and yet though this Deed hath relation to the Will, that Will may be revoked.  
This indeed hath the Terms put in this Case, but in Reason is no way applicable to it. When a Man makes a Feoffment, and annexes his Will thereto, there the Design is, that the Estate should arise, not immediately upon the Feoffment, but attend upon the Will. But if a Man make a Deed of Feoffment, and says it shall be to the use of such Persons, and for such Estates as in his Will, or as he shall give according to the Will, there though the Will doth mention the Names, and limit the Estates, the Uses do not arise by the Will but by the Deed: For though the Will be no part of the Deed, yet when the Deed doth refer to the Will, and the Will hath limited the Estate, it is as much as if all the Limitations had been comprised in the Deed.  
And I take it that Deed is not revocable, because it hath an immediate Effect, and can be no otherwise revoked but according to a Power reserved in the Deed itself. And that is Hussey's Case, Moor 756. A Man makes a Will, and he makes a Feoffment to the Uses mentioned in the Will, though the Will be revoked, as sure it is, yet it is a sufficient declaration of the Uses.  
It was further urged for the support of this Notion, what is said in Hobart in the Earl of Ormond's Case. The Case is put a little short in the Book. A Man suffers a common Recovery to the use of such Person and Persons, and for such Estate and Estates as he should dispose of and to in his last Will. This was a Case in Ireland, and before the Statute of Uses was made there; and so we must look upon it in England as a Case before the 27 H. 8. and then there being a Feoffment made, he remains Cestuy que use in Fee in the mean time, for he hath a Power by Will to dispose of the Use, according as is expressed in the Deed. Then he makes a Deed in his Life-time, and giveth away the Inheritance of this Use, and afterwards makes his Will. Now here is a Deed that giveth the Inheritance of the Use away; and here is a Will that doth control and alter the Disposition of this Deed. This was the use that was made of this Case.  
Now in answer to that, Suppose it were so, this Will is but an execution of that Power which proceeds from the Deed; for when a Man makes a Feoffment for the use of such Persons, and for such Estates as he shall limit by his Will. It is not the Efficacy of the Will that disposeth of the Estate, but it is by virtue of the Deed; so that the Deed in his Life-time was no execution of the Power reserved in the first Deed, which was only to do it by a Will.  
But I must say this further to that Case of the Earl of Ormond, That I do not take that Opinion of the two Judges, Hobart and Dodderidge there delivered to be Law; and there were other two Judges, Montague and Hutton that were of another Opinion, and others were of their Mind, and it did not come to a judicial Resolution. And my Opinion is this, That if a Man made such a Feoffment before or after the Statute of Uses, he hath the Fee Simple of the use vested in him in the mean Time, and therefore hath a Power to dispose it. And if he doth by Deed in his Life-time dispose of it, that is a good Disposition, and the Will shall not control it, for he is as much Master of the whole Estate, both before and since the Statute of Uses, as if he had made a Feoffment in Fee to the use of himself; And then an absolute disposition of this by Deed doth extinguish and destroy the Power. If he from whom the Estate moved doth reserve a Power in any particular manner to limit any Estate or Estates by his Will, the whole Fee-simple is in him, and any Act he doth do to dispose of the Estate, will hinder him from executing of that Power.  
And for this I shall quote you but one Case, and that is in Lea 39 Broad's Case; a Fine is levied to the use of such Persons, and for such Estates as the should limit and appoint by his last Will, and so the Case comes home to this Case. He after this covenants to stand seized of these Lands to the use of his second Son and his Heirs, and then makes his Will, and disposeth of the Estate therein according to the Power. The Question was, which of these Dispositions should take place, the Deed or the Will? The Will was according to the Power reserved upon the first Fine, and the Deed intervened before he came to execute this Power; It was there held that having made a Disposition of the Estate by Deed, though by a Covenant to stand seized, that should take effect, and the Will, though made according to the Power, came too late to execute it. So that I think none of these Cases that have been mentioned for this purpose are applicable to the Case in Question, nor argue or prove any thing material for that which the Plaintiffs Counsel intended them for.  
Ay but say they, this Will of 1675, and Deed of 1681, make but one Conveyance, and then the Will that is the Principal that shall govern all the rest. Now this is a Notion fetched from the Courts of Law, but very improperly applied to this Case as I think: For this Will being revoked by this Deed, is no Conveyance at all. Where several Acts make but one Conveyance, every one has its distinct operation to carry on the main Design. As a Lease and Release, the Lease conveys the Possession for Years, the Release conveys the Inheritance to the Possession by way of Enlargement. So a Fine and Recovery, and Deed to declare the Uses, make but one Conveyance, but each performs its particular Part: The Fine conveys the Freehold to one Man, and upon the Recovery it is conveyed to Another, and upon the Limitation of the Use it is conveyed to a Third; all are preparatory Acts necessary to complete the Conveyance of the Inheritance whither it was at first designed.  
But how will they make a Will that hath no subsistence to be one Conveyance, with a Deed that before destroyed that Will? I cannot see how, nor is it reconcileable with Law or Reason. So that for that Matter, I think they have no ground to insist upon this Point, that this being a Deed relating to a Will, may be revocable in Equity as a Will is at Law.  
But to go on to the next.  
This Deed doth say, It was made and intended to confirm the Will, and yet makes several Recitals and Limitations contrary to it.  
Why, suppose it were that it did recite the Will truly, and says the Will disposed of the Estate so and so; and then adds, that it was made to confirm the Will, but yet disposeth of the Estate quite otherwise than the Will doth, shall this avoid the Deed in Equity, or make it to have another consideration than it else would have? The reciting part of a Deed is not at all a necessary part, either in Law or Equity. It may be made use of to explain a doubt of the Intention and Mea●ing of the Parties, but it hath no Effect or Operation. But wh●n it comes to limit the Estate, there the Deed is to have its effect according to what Limitations are therein set forth. And that is plain and full, without any manner of Contradiction whatsoever.  
Now because a Deed is repugnant in some part, that is material to what is immaterial, Is that any ground in Equity to set aside this Deed? or make it more liable to a Revocation than if they had been consistent? that seems strange. Then here are Misrecitals and Mistakes, which I take to be Mistakes of the Clerk; and shall these Misrecitalls of the Will in the Deed destroy the Effect of the Deed, when the Meaning, and Intention of the Parties is most manifest and clear how the Estate shall go, and there is no Reference in the Limitations of the Deed to the Will, but only in the Recitals, and there there are Mistakes. Now if the Limitations of the Will and Deed are not applied to the Recitals in the Deed, than those Misrecitals cannot hurt the Limitations in the Deed. If so be the Limitations in the Deed had been general to such Uses as were before Recited to have been limited in the Will, then there had been some ground to infer that these Mistakes should be a foundation for Equity, to rectify those Mistakes. For that supposeth the Recitals in the Deed concerning the dispensation of the Estate by the Will are right, and would come too late at the time of the Limitations to rectify them, and that were a Mistake, that might be a good ground in Equity to relieve against the Mistake.  
But when it comes only by way of Recital to be disposed by the Will one way, and then doth in express words limit it a contrary Way, the Intention is plain that it should go according to the Limitations in the Deed; and there can be no Foundations in Equity to set it aside. The Rule of Law is, Benignae sunt Interpretationes Chartarum. And I suppose there ought to be a great deal more indulgent interpretation of them in Equity, to maintain the Intention of Parties. So that as to that first Point concerning the Frame and Manner of this Deed, and the Contradictions to and Misrecitals of the Will in it, there is no Foundation of Equity to relieve the Plaintiff against the Deed, unless the Power of Revocation in the Deed were legally pursued.  
The next thing is, Whether there be any thing proved in the manner of obtaining it from the Duke, or managing and continuing of it after it was obtained, be any Foundation for Equity to relieve against it? And for my part I see none.  
First, I do not see any manner of Evidence to prove any indirect Practice for the obtaining of this Deed from Duke Christopher. The most that can be made of it is but bare suspicion, and indeed that a very slender one too.  
But say they, can you prove the Duke ever read it, or had it read to him? That is a strange Objection, when it is proved to before Witnesses, and so many; sure that is but a slender ground of Equity, the not reading of it? But nothing of Surprise, or Ignorance in the Duke of what he did in it ought to be supposed, because Sir William Jones, who is proved to be the Duke's Counsel, was by, and a Witness to it. I told you at first Sir William Jones' Hand to be to the draught and Deed must be admitted, because I take it for granted that this is at Law a good Deed. And if I did not take it for granted that that was Sir William Jones' Hand, and he was a Witness to the Deed, I should not take it for a good Deed. But I meddle not with the point of Fact, but take the Fact to be granted to bring the Judicial point in Question, so that it is his Hand, and he is a Witness to this Deed.  
Then Secondly, It must be imagined that when Duke Christopher made this Deed, he did it with some Design and for some purpose or other, and if so, you cannot imagine that the Duke was at all surprised 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 surprised 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 surprised 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 powel, that spoke 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 Will 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 Judgement. 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 Will 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 Will 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 show 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 surprised 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, though 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 Knowledge of the one than the other, and he cannot come to the Knowledge 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 to that other.  
Besides, it doth not appear, as I remember, (for it is some time since this Cause was heard) that my Lord of Bath did know to what purpose the Duke did call for his Will, and that the Deed and Will were both in the custody of the Duke; for though at the time of the execution of the Deed it was delivered to my Lord of Bath, yet that was only for the due execution as a Deed; for my Lord in his Answer saith, He knoweth not where it was afterwards, till delivered to him by the Duke with the Will, under one Cover, some short time before he went abroad. And so there is great Reason to induce the Belief, that it was in the Duke's own custody.  
Then as to the Objection of Secrecy, it is kept secret all-along, and no body can give any account of this Deed. Take it for granted it was so; Shall a Settlement in a Family (where the nature of the thing requires Secrecy) because it is kept secret, be set aside in Equity? It ought to be kept secret, and that is no Objection at all; Persons do not usually intend that all the World should know how their Estates are settled.  
But say you, At least here is a general Presumption, take all together, upon the Circumstances of the whole Case, that there was some kind of management in concealing of this Deed. Now, in a Court of Equity shall Presumption be sufficient to found a Decree upon? If that shall avail in a Court of Equity, it is an easy matter, according to the Judge's Faith, to presume a Man out of his Estate. There are Presumptions of several sorts, some are violent, and some probable: A violent Presumption, That such a Man hath done such a Fact, must be when a Fact is done, and no other can be thought of to have done it: As, if a Man be killed in a Room, and another Man comes out of the Room with a Sword bloody in his Hand, and no body else was in the Room. Here is a plain Fact done, and though no body can swear they saw this Man do the Fact, that he killed him, yet from this Evidence there is a very strong Proof.  
But a probable Presumption alone is no Proof to rely upon; where indeed there is some Proof of Witnesses positive, and the Presumption is probable that is added thereto, it may be a good fortifying Evidence, but it signifies very little of itself for a Foundation.  
So that I think here is no Proof or Evidence, That my Lord of Bath did surprise the Duke; or, that the Duke was surprised in this matter; or, that there was any indirect means used to conceal it from the Duke. And so I have done with the Second Head that I at first proposed. Therefore,  
Thirdly, I come to consider the Persons that are concerned in this Cause, that is, those that Claim by the Deed of 81. and those that Claim by the Will of 87. Those that Claim by the Deed of 81. are Relations of Duke Christopher without all question: My Lord of Bath, that is entitled to the greatest part of this Estate, is a very near Relation, and a Person that had done many Kindnesses for the Family, had been constantly assistant to the Duke in his business: And the others are near Relations too.  
Then for those that Claim by the Will of 87. Mr. Monk, that claims the main of the Estate, is indeed in the Will called Cousin; but it is plain (if at all) he is not so nearly related: So that when in respect of the Persons that claim by contrary voluntary Settlements, there is even an equality of Relation, and no difference of Consideration, (much more when there is an inequality) he that hath the best Title at Law, must carry the Estate: For what is it that makes the Difference, but the difference of the Consideration? As in the Case of a Deed in consideration of Blood, and an After-deed to a Purchaser, for a valuable Consideration; the Last shall take place, as the Best Consideration.  
But for revoking, or voluntary Settlement, in favour of a subsequent one, where there is no difference between the Parties as to the Consideration, I think hath no ground in Reason. There is as much Equity for the one as the other. It is perfectly at large, and I take it to be a constant Rule, that where one Party hath more Equity than the other, the Law must take place, and that in this Case being manifestly for my Lord of Bath, by this Verdict Equity ought not to take it from him.  
This Principal was the Foundation of the Decree in that Case of Smith and Ashton, that has been likewise mentioned and urged before: There was a Power under Hand and Seal to be attested by three Witnesses, and to charge with Portions for younger Children; so it is a limited Power: Then he makes a Revocation for Advantage of younger Children, but not exactly pursuant to the Circumstances of the Power. This was held good in Equity, and all the reason in the world it should, because a Man is obliged to provide for his younger Children; and it is against all Justice and Reason to make such a Settlement upon the Eldest Son, as to send all the other Children a begging, being under the same natural Obligation to provide for the one as the other. Therefore, because of that Natural Obligation, Equity hath been indulgent to support such Provisions, because the first Settlement that disabled him from it, was wrongful and injurious, and contrary to all Equity, and then in such Case Equity is very indulgent.  
But I would put this Case: A Man settles all his Estate upon his Younger Son for Life, with a Power to revoke by Deed, sealed in the presence of three Witnesses; without more ado he makes his Will, and disposeth of his Estate to his Eldest Son wholly, and that Will is attested as (put it) before the Statute by two Witnesses, Is this a good Revocation in Equity? I say no: For the one is as nearly Related to the Father as the other; the Considerations are equal, the one is as much a Son as the other, and therefore there is no great difference between them; and the Younger Son, who hath the Estate by Law, shall enjoy it, though afterwards it return back to him that was the Eldest.  
The Fourth and Last Point is this, Whether in respect of Duke Christopher, and those Circumstances that attended him, there be any Reason to relieve against this Deed in Equity. And here,  
First, It is said, If a Man makes a Feoffment, with a Power of Revocation, under such Circumstances, and doth make a Revocation, where all the Circumstances are not observed, he is such an Owner still of the Estate, as that Equity shall support the disposition.  
I say no: For that is to set up Equity in direct Opposition to the Law. For when a Man hath restrained himself by a particular Power, and hath no Legal Right to dispose of this Estate, but by exactly pursuing that Power, Equity cannot enlarge that Right or Power.  
Legally you agree he cannot; for if he could, then were there no Reason for imploring the Aid of a Court of Equity: and there is the greatest Reason he should be obliged by the Rule of Law in a Court of Equity, because it is a Law that he hath put upon himself: And that is the Equity of the Legal Obligation, because it is supposed to be made by his own express or employed Consent, by his Representative to all Laws. Here is a Man that hath made a Deed, whereby he has actually restrained himself from disposing of his Estate, but in such or such a way. By the same Reason, that you in a Court of Equity will construe it a good Execution of the Power, where the Circumstances are not strictly observed, you may allow a Man to revoke a voluntary Settlement, when there is no Power reserved to him in the Deed so to do: And that I take it, no one will be so hardy as to affirm. A Man voluntarily makes a Settlement to the Use of himself for Life, and after to other Uses, and reserves no Power of Revocation at all, he cannot revoke this, no not in Equity: And the Reason is the same as to a Power reserved where it is not pursued; for he has no other Right to do it but by the Power, and it is as if he did it without a Power, unless he make a due use of such Power as he had.  
It will be manifestly inconvenient, if a Court of Equity have such a Latitude in Powers of Revocation: For it is not sufficient to say it is unreasonable a Man should be restrained, when a Man will fetter himself; nor do I see what Reason there is to say it is imprudent. Indeed, to argue thus, is to make a Man less Proprietary of his Estate, than the Law hath made him, that he shall not settle his Estate in such a manner as he pleaseth to order for himself; a Man at this rate is never Master of his Estate; he makes the first Settlement as Owner, and it is no matter, whether he hath a Reason for making it or no, stet pro Ratione Voluntas; but then, when he hath so done, both Law and Reason bind him to observe it, and there is no reason for a Court of Equity to avoid it.  
I must confess Courts of Equity would have enough to do, if they were to Examine into the Wisdom and Prudence of Men, in disposing of their Estates, and if they were not discreetly, but foolishly done; therefore to set them aside, there would need more Courts of Chancery than there are, to dispatch the business of Equity in this Point; but be a Man wise or unwise, if he be legally Compos Mentis, he is the Disposer of his own Property; and tho' he do not dispose of it so discreetly, as a Judge or a great Lawyer would do, there is no reason Equity should interpose to alter it.  
Besides, there may be a very good Reason for a Man to put such a Restraint upon himself, and for a Wise Man to do it too: For a Man may know the Frailty of his own Temper, how apt he may be to be surprised, and prevailed upon to make a precipitate or inconvenient Will, Settlement, or Disposition of his Estate: Now to restrain this Infirmity which I have, and to prevent an Inconveniency that may arise by my disposing of my Estate upon a Surprise, I will restrain myself, and settle my Estate so and so, that if there be a deliberate intention in me to alter it, I may solemnly execute such intention; I will therefore have so many Witnesses, and those of good Quality, that if they find me about any such Action, may advise me in it, and prevent any apparent Surprise into the doing of any Action that may be foolish, rash, or prejudicial: For that Reason I will bring myself under such and such Restraints.  
And when we see a thing done that may have a good Reason given for it, as there may be for this circumscribed Power, to restrain from rash, sudden Actions, it is to be presumed, that it was done upon good Reason; and therefore the pretended unreasonableness of fettering the Owner of an Estate by himself mentioned at the Bar, is no Argument against it: For it may be (and that is rather to be presumed) upon very good Reason than upon no Reason at all.  
Now I think it was never yet determined, or settled in a Court of Equity, that a Revocation that did not pursue the Power, was good in Equity: It has been settled and decreed not to be good, and that is the Case of Arundel and Philpott, which came first into the King's-Bench, and then into Chancery, and afterwards into the King's-Bench again, and there it had its Period. A Woman makes a Voluntary Settlement upon a Friend, with a Power to revoke upon the tender of a Guinea; and upon some falling out or Quarrel that happened between them, she makes another Settlement upon Arundel: at first in the King's-Bench they could not prove the Tender of a Guinea, and so the Revocation was not good at Law; therefore they came into a Court of Equity to be relieved. It was held, that no Relief should be had in the Case, although there was Proof of a Provocation given, a Quarrelling and falling out, and so there might be some Reason to revoke, but no Reason to revoke otherwise than according to the Power: So the Bill was dismissed. Afterwards, upon a Trial at Law that Matter was substantially proved, That in the Heat of the Provocation the Guinea was tendered, and consequently a good Revocation; and that I look upon as a full authority that there can be no Revocation in Equity where it's not a good Revocation at Law, unless there be a particular intention in the party to revoke, which he could not effect pursuant to the power by fraud or accident.  
The Case of Thorn and Newman I take to be good at Law, and therefore to be sure good in Equity; there was to be a tender of 12 d. at a Day in the Middle-Temple Hall, the 12 d. was tendered at the Day but not the Place, and accepted. That was before my Lord Ch. Justice Hales, and the party nonsuited upon it. For upon a Condition to pay Money at such a day and place, the Money be tendered to the Persons at the day, tho' not at the place, that tender to the Person is good, being a Case of Money, but it is not so in a Collateral Condition for doing of any other thing. And tho' it had not been in that Case good at Law, it might be held to be good in Equity upon another account; because, there where Children in the Case, and it was to make Provision for them.  
Now I do acknowledge that a power of Revocation not well executed at Law may be in Equity in some other Cases: As where a Man having such a power has a real intention to revoke, and his intention is known, but he is prevented by a particular Accident, and surprised when his design was so to do, but he could not perform that design, as by reason of Sickness, or that it was to be done in a place whither he could not go. If any Accident obstruct that Intention, it shall be looked upon as good, and shall prevail.  
But now in this Case of the Duke of Albemarle, it doth not appear that he had any such intention of executing his Power. It is true, he made his Will, which is a quite contrary disposition of his Estate. That is an Evidence of his intention to make a new Will, but not to revoke this Deed; He was no way hindered by any accident or irremovable Impediment from executing the Power according to the Circumstances. He was in the place where best of all throughout England he might have had three Peers to be Witnesses of it. The Will was executed in London, at Sir Robert Clayton's House, and there were then two Peers in the House; Therefore since he had an Opportunity to have done it well, and would not do it, this can never be construed a good Revocation in a Court of Equity. And I think truly that any such Construction would induce many Absurdities. For,  
First, It is to set up a power in a Court of Equity in direct opposition to the Courts of Law, and so let a Man loose in Equity for no other reason, but because he hath restrained himself at Law, by a Law of his own making.  
Secondly, It is as much as to say, That because a Man my dispose of his Estate one way by Law, therefore in a Court of Equity he shall dispose of his Estate any way. That is a very strange, but a true consequence of this Doctrine, because a Man settles his Estate such a way with such a Power to alter it in such circumstances, therefore he shall do it any way. At this rate, Tenant in Taile may dispose of his Estate without a Fine in Equity, because he might have done it at Law with a Fine, for the same Equity there is in both Cases. So a Copyholder of Inheritance may in Equity dispose of his Estate without a Surrender, because he might do it at Law by a Surrender.  
Thirdly, It were to enable a Man to give away more than he hath in him, for he has no more in him than what is according to the Power he reserved to himself. And,  
Fourthly, 'tis to frustrate the intent and design of all Settlements whatsoever; so that I think there is no reason at all for this Court to let a man lose, that has thus restrained himself, unless there be some special reason in the particular Case, for the sake of which a Man ought to have his Case vary from the ordinary Rules.  
Then let us consider next the Circumstances that the Duke was under at the time of making this Will, you that are for the Plaintiff, say that he had forgotten this Deed, and therefore it being an old and forgotten Deed, it shall not have any regard in a Court of Equity, it not being taken any notice of by the Party himself.  
First, I pray consider whether the Evidence doth not prove the quite contrary: it was a Settlement made very solemnly; it is very well attested by six Witnesses, Persons of Consideration, it was done with deliberation, and done but in 81. the Will is in 87. It is not to be presumed that the Duke did or could forget a Setlement so solemnly and deliberately executed. I say it is hard to presume it, but rather the contrary, that he did not forget it.  
Besides, tho' he had forgot it, Sir Thomas Stringer who was so instrumental about this Will had not forgot it, for he made an Abstract of it about that time with the very date in it. And I take it the memory of the Counsel in such a Case, is the memory of the Client. Suppose a Man be to make a purchase and he carrieth the Deeds of the Title to Counsel, and he espieth a Trust in the Deed, and acquaints his Client, and yet he will purchase, shall Equity relieve? It may be the Counsel overseeth this Trust, and the Purchaser is called to account about it, says he, I had no notice, I knew nothing of any such Trust; I am a Purchaser for a valuable Consideration, and it ought not to affect me. But then they come and prove that the Deeds of the Title were carried to Counsel, they saw this Trust or had an opportunity to see it. Then I take it, notice to the Counsel is notice to the Client, and the Man that paid the money must lose the Estate: So here Sir Thomas Stringer's memory is the Duke's memory.  
But pray how comes it to pass that forgetting of a Deed is a ground to revoke it in Equity? must the goodness and validity of a Deed depend upon the memory of him that made it? Memory is slippery, but a Deed is permanent, and made to abide for ever. Because Men are apt to forget what they have done, therefore shall their Deeds have no more effect in a Court of Equity, than if they had never been done at all? This I confess is very new and strange Doctrine to me, when a thing once comes to be put into Writing, we say it is never forgotten; Litera Scripta manet.  
But then truly they say it is inconsistent with the Honour of the Duke of Albemarle that he should make this stir and do about his Will, and pretend such kindness to Mr. Monk, and desire a Title of Honour for him, and yet not intend to revoke this Settlement that stood in the way. The others they say, how is it consistent with the Duke's Honour to intend to revoke it, when there was such a friendship between the Duke and the Earl, so many Services and Obligations performed by the Earl, such a Trust and Confidence reposed in him even to the last, as it is plain there was? How comes this to pass? but so it is, they are Acts very much inconsistent I confess. But for persons Honours in judging of Causes we have nothing at all to do with them.  
For my part I see no reason in the World that the Duke had to alter his mind as to my Lord of Bath, there is no appearance of any unkindness or displeasure conceived by the Duke against the Earl, but an entire Trust and Confidence to the very last, as is evident by the Order of the Keys of the Evidence-Room to be delivered to him when he went away, and to consult with him upon all occasions.  
But withal I do not know what the meaning of this should be, if he really intended any effect as to the Will of 87, which without all question is well proved; and were it not for this Deed, would be a good disposition of the Estate. Yet tho' it doth contradict the Deed of 81, I cannot but take that to be a very good Deed, and not to be set aside by this Will.  
I have nothing further to consider in this Case, nor are we to make Presumptions, and then to make Inferences from thence. We are to judge upon the fact as it appears in the Depositions, which are plain and clear, and upon these we are to determine our Opinions, and nothing else that is dark, and that we cannot come at further than by conjecture.  
There have been said in the Cause, which I omit on purpose, because I would mention only those that are most material. Upon the whole matter I am of Opinion there ought to be no Relief in this Case against my Lord of Bath, and those that Claim by the Deed of 81.  LORD- KEEPER. 
I Shall first take Notice how these Causes stand in Court, and who are the Parties in Judgement before the Court.  
Here are Three Bills: One, in which the Duchess of Albemarle was Plaintiff and since the Inter-Marriage, my Lord of Montague is also Plaintiff against my Lord of Bath and others Defendants, and this Bill sets out the law Duke of Albemarle's Marriage-Settlement, and his Will of 87, with the Solemnity both of preparing and executing it, and doth complain that the Earl of Bath sets up another Will, and a Deed in 75 and 81, whereby he seeks to frustrate the Disposition of the Duke's Estate by the Will of 87. And the Bill doth allege, That if any such Deed was ever executed by the Duke (which they have reason to doubt and do not admit) they believe the same was imposed upon the Duke by surprise and not fairly obtained, and by fraud were concealed from the Duke, and aught to be set aside in Equity, tho' the power of Revocation in the said Deed were not strictly pursued, because his intention appears to revoke it, and dispose of the Estate otherwise by making the Will in 87. And if it should not be set aside, than the Duchess ought to have the Lands limited to her by that Deed, and the Rent-Charge of 2000 l. a year over and besides the Jointure settled upon the Marriage, and confirmed by the Will of 75. And the Will of 87 ought to stand good, as to the Personal Estate and Legacies therein, and so prayeth to be protected in the Enjoyment of the Personal Estate, and Specific Legacies given to the Duchess discharged of the Duke's Debts.  
There is another Bill brought by Christopher and Henry Monk, which complains of my Lord of Bath, and the others setting up this Will of 75, and Deed of 81; and I think in the same Words, or to be sure to the same effect with the other Bill, and prays that both Will and Deed may be set aside, and the Plaintiffs may enjoy the Benefit and Estate given them by the Will of 87.  
Then there is a Third Bill of my Lord of Bath, Mr. Greenville, and Sir Walter Clarges, in which they set out the Will of 75, and the Deed of 81, and the continuance and constancy of the Duke's Friendship and Trust to the Time of his Death, and complain that the Duchess and other Defendants set up the Will in 1687. and do pretend that amounts in Equity to a Revocation of the Deed of 81; and his Bill prayeth that the Personal Estate may be applied to pay the Duke's Debts in discharge of the Real Estate, which they pray may be confirmed to the Plaintiffs in that Suit, and a discovery of the Writings about the Real Estate, and that they may be brought into Court, and delivered up to the use of the Plaintiffs.  
These Causes were first heard before the Lords Commissioners, so long ago as the 8th of July 1691. then was there a Decree made, That the Personal Estate should be accounted for, and applied for the payment of the Debts; but before the Court would deliver any final Judgement as to the Real Estate they ordered a Trial at Law to be had in an Ejectment, wherein the Duchess and Mr. Christopher Monk were to be Lessors of the Plaintiffs, and the Earl of Bath, Mr. Greenvill, and Sir Walter Clarges to be Defendants, to try the Title to the Real Estate: And the Plaintiffs were only to insist upon the Will of 87. and the Deed of 81. so as that the Defendants Right upon the said Will and Deed might be fairly tried. And all Exhibits were to be left with the Master three weeks before tile Trial, for either side to inspect, take Abstracts and Copies of as they should think fit.  
According to this Order in the Michaelmas-Term, after there was a Trial at the King's-Bench-Bar, and upon that Trial a Verdict passed for the Defendants in the Ejectment, the Earl of Bath, etc. upon the Will of 75. and Deed of 81. After the Trial these Causes came to be heard again before the Lords Commissioners about a year and a half since; at that time there was no complaint made of the Verdict, nor any Motion for a new Trial. But after the Council had been heard several days, the Court took time to consider of their Judgement; and before Judgement one of these Causes abated by the Marriage of my Lord Montague and the Duchess, and by that and other Accidents the Cause hath been delayed till the late Hearing before the Court, assisted by my Lords the Judges, who have delivered their Opinions. And now the Causes stand for the Opinion of the Court, upon what appears in the Plead and Proofs, and what has been so largely insisted upon on either side.  
Upon which the Verdict being at Law for the Defendants, I must take it as my Lords the Judges have already declared, not only that these Deeds of Lease and Release, of the 15th and 16th of July 1681. were duly sealed and executed by the late Duke of Albemarle, but also that they stand still in force, and unrevoked at Law; for if they had not been so, the Verdict could not have been, as it was, for the Defendant.  
Therefore as that must be taken for granted, that these are good Deeds in Law, the only Matter at present for the consideration of the Court, is, Whether upon the debate of this Cause there be sufficient Ground in Equity for this Court to interpose in the Case, so as to set aside these Deeds, as not good in Equity, or revoked by the Will of 87. or no? And I shall, as to the Matter of the Question, conclude my Opinion the same way with my Lords the Judges, that have delivered theirs before.  
And with respect to this Matter, I shall here consider who the Parties are in Judgement before the Court, and what hath been alleged as Reasons and Grounds to induce the Court to set aside this Deed in Equity.  
Here is no Purchaser in the case, no Creditor, no Child unprovided for, but all the Parties claim by voluntary conveyances on the one side and the other, so that at least they stand equal; or, if there be any circumstances as to the Persons that have any weight, it is on the part of my Lord of Bath.  
There have been several things insisted upon by the Council for the Duchess and Mr. Monk, as grounds whereon they would found that Equity which should impeach this Deed of 81. I would mention them as I apprehend they were offered, and I will, as far as I can, avoid being tedious, or use unnecessary Repetitions of what has been already said.  
First, It has been offered, That this Deed was obtained by Fraud and Surprise.  
Secondly, If it were Originally fairly obtained, yet it was unduly secreted and concealed from the Duke, that lie could not come to know the true contents of his Power; or, if it were not concealed, yet it was utterly forgotten by the Duke, which was the reason and occasion why sufficient care was not taken to execute the Power as it should have been.  
Next, That tho' the power of Revocation was not literally executed, yet his intention appearing clearly to dispose of the Estate otherwise, it ought to be supported in Equity.  
Then, That the Deed of 81. was but Ancillary (that was the Phrase) to the Will of 75. being agreed to be revoked by the Will of 87. the Deed must fall with it.  
Another thing was, That what the Duke had done amounted to a Revocation.  
Then, That here was a General Trust, and the Duke remained Owner of the Estate, and might charge it as high as he pleased to the utmost value, and so being absolute Master of the Estate, his subsequent disposition of it by this last Will aught to be made good in Equity.  
There are many things accumulated together, and so make the better show; but it is belt to consider them severally, if we would know the true weight of them.  
It is true, it is charged in the Bill, That this Deed was obtained by Fraud and Surprise, and that it was concealed from the Duke, or forgotten by him, and he had an intention to revoke, and went as far as he could; so that they are sufficiently let into this Matter by what is charged in the Bill. But whosoever reads over the Depositions, will see that the End they aimed at was, to attack the Deeds themselves as false Deeds, and not truly executed: But that being tried at Law, and the Will and Deeds verified by a Verdict, the Counsel have attempted to make use of the same Evidence, and read it all, or at least the greatest part of it, as Evidence of Surprise and Circumvention.  
But I think that aught to be well considered by the Court, for we are not to found our Judgement upon that Evidence, which if it be to be regarded at all, did amount to more than what was insisted upon, and which is positively contradicted by the Verdict. As to Fraud and Circumvention, it must be granted me, that they are things not to be presumed: It is all denied in the Answer, and the Proof must be very clear, if it be to be regarded by the Court.  
Now, for this word [Surprise] it is a word of a general signification, so general and so uncertain, that it is impossible to fix it: A Man is surprised in every rash and indiscreet Action, or whatsoever is not done with so much Judgement and Consideration as it ought to be. But I suppose the Gentlemen who use that word in this Case, mean such Surprise as is attended and accompanied with Fraud and Circumvention: Such a Surprise indeed may be a good ground to set aside a Deed so obtained in Equity, and hath been so in all times; but any other Surprise never was, and I hope never will be, because it will introduce such a wild Uncertainty in the Decrees and Judgements of the Court, as will be of greater consequence than the Relief in any Case will answer for.  
They say, This Surprise was made out two ways, by Matters that appear in the Deeds themselves, and by Circumstances in Proof that arise out of the Deeds.  
As to those Matters that appear in the Deeds themselves, they urge,  
First, That it is expressed in the Deed of Release, that it is made in corroboration of the Will, which is misrecited throughout.  
Then, That it is imported to be for the confirmation of the Will, when in effect it doth fully revoke it, because there are no Limitations in the Deed, but such as vary from those in the Will.  
Then, That it is for securing the Legacies in the Will, and yet itself defeats the Will.  
That as to a great part of the Estate the Deed limits it to my Lord of Bath, after failure of Issue-male, excluding the Daughters; whereas in the Will that Limitation is after failure of Issue generally.  
That the Provision in the Deed for the Third Son is ineffectual, because the Duke had not power to settle it so.  
That the Power of Revocation is unreasonably fettered, and the Covenant whereby the Duke, who was then very young, is obliged not to revoke the Will, is a derogatory and illegal Covenant.  
And the unskilful Phrase and Language of the whole Conveyance must be a Demonstration, that Sir William Jones was not employed in it as is pretended: These are the Objections to the Deed itself.  
Now as to the Misrecitals, as my Lord Ch. Justice has said, they will have no insluence upon the Limitations, because the Recitals in a Deed are not made the measure of the Limitations in it. Besides, as I apprehend, here are none of these Misrecitals which are of that nature, as to draw on the Duke into a Mistake in the favour of my Lord of Bath: For the Recital, that the Duchess had a much greater Estate by the Will than she had before, as the Limitation of Dalby and Broughton for Life, when it was but during Widowhood; this might lead the Duke indeed into a Mistake in favour of the Duchess, (as it did) and might have induced greater Limitations of the same kind, but never to the Advantage of my Lord of Bath, who was to come in remainder; so that all the inference that can be made from those Misrecitals, is only, That Sir Tho. Stringer who (it is apparent in Proof) drew the Deed, was a careless Man.  
Then they say the Variation of the Limitations from those in the Will showeth, That it was to revoke the Will, and not to confirm it. As to that,  
First, Such Variation is a Proof, That the Duke between the Time of the Will, and the Time of the Deed had altered his Mind as to those particulars, but to carry it further I see no reason in the World.  
Next it hath been observed, That the Words of the Deed, which purport the end of it to be for confirming of the Will, must plainly in reason infer to the principal design of the Settlement, which was to dispose of his Estate to my Lord of Bath, and the nearest of his Relations, and not to refer to every particular Limitation in the Will; and that it doth so confirm the Will as to the main principal Limitation in the Will is plain: And it doth appear by the very phraseing of the Deed, that besides the confirming of the Will, he did mainly design the settling of his Estate.  
Then let us consider the differences in point of Limitation between the Deed and the Will.  
First, They say in the Deed, There is an Estate limited to the Duke for Life, which is not in the Will; that is proper in a Deed, but would not have been absurd in a Will which is not to take effect till after his death.  
Then for that Variation in the Limitation to the Duchess, it is not material in point of Value, but for duration of the Earl, and it was a reasonable thing so to make it; for since he did intend to charge his real Estate with great Legacies, it had been impossible to have sold any part of it that had been under a Rent-Charge of 6000 l. a Year, and therefore it limits Lands of that Value.  
As for the Limitation of Norton Disney, which indeed is to the advantage of my Lord of Bath, and is the only variation from the Will which is so; for with respect to the Essex and Northern Estates my Lord has but a Remainder after failure of Issue in General, but in this it is after failure of Issue Male. But than it is to be considered that the Honour would fail upon the Duke's Death without Issue Male, and he did intend and desire that the Honour of Duke of Albemarle should come to my Lord of Bath. His Father had gone so far in it as to procure a promise of it under the Sign Manual by K. Charles the 2d. And at the same time he had an Estate of 15000 l. a Year, and then it became him well that such a part of the Estate should go with the Honour.  
As to that Objection, that thereby there was no provision made for Daughters, it were indeed a very great one, if indeed there were no provision at all for them. But it means no more than that if he left no Sons, there would be an ample provision out of the rest of his Estate for Daughters: And so in effect it is upon the Marriage-Settlement and the Will of 87. So that if it be an Argument of Surprise as to the one, it is the same as to the other.  
Then for that provision that is made out of Rotherhith and Norton Disney, for the third Son; it must be admitted that as to my Lord Duke's mind in the matter it would be ineffectual, but there can be nothing inferred from thence but that there was a great neglect of looking into the Settlement: But that will be no ground in Equity to relieve against this Deed; for if it should be so, how many Settlements must we set aside upon men's settling that over, which in part they had no Power of making such disposition, because the persons concerned in drawing the Settlement did not take sufficient care in every Particular to pursue the Power he had who makes the Deed.  
Besides there is the same mistake in the Will of 87, in relation to Potheridge, where the Barony for Mr. Monk was to be fixed, it being by a Settlement in King Charles the first's time so settled in Tail, that it could not, or was not legally to be disposed of by Will.  
Indeed it was said, that there were some Articles made with Pride about that matter, to carry the Estate according as the Duke should direct: But those Articles cannot answer the Objection, for they were made three Months after the Will, and then they were made with a wrong Person, and so signify nothing.  
It has been objected, That this Deed pretends to be for securing the Legacies in the Will of 75, but defeats them. That is a Mistake in the Objection, for it confirms the Will certainly as to the Legacies, and doth create a Trust for performing and paying them: indeed by a subsequent Act the Will of 87, there may be an Alteration made, but that is no Argument against this Settlement itself.  
There was another Observation made, and that was, That the Power of Revocation was unreasonable, especially backed with such an unreasonable Covenant not to revoke. But as to that, it is to be considered what the Design of this Settlement was, he had made his Will before, but he thought himself unsafe under that Disposition; he was under apprehension of being applied unto and importuned to dispose of his Estate otherwise than he had a mind it should go, therefore he intended this Settlement as a Guard against any Surprise of that kind; and that being his Intention, if it had been only a general power of Revocation, it had been no more than what any Will or subsequent Act done by him would have effected, but that had not answered his meaning.  
And so as to the last Covenant in the Deed, which they call the Derogatory Clause, whereby the Duke covenants not to revoke the Will otherwise than as aforesaid. I take it, that doth import no more, but that as to the preceding part of the Deed he guards himself against Surprise as to the real Estate, so he doth here as to the personal Estate. And tho' it prove ineffectual at Law, that is not material as to the Intention of the Duke.  
The last Observation upon the Deed is, the penning it, which is an Objection that is to go through the whole Deed: but this Objection goes further than the point for which it is alleged, for if it prove any thing, it proves it to be a false Deed. But for this I do not find it so much as suggested, that this Deed was drawn by Sir William Jones; my Lord of Bath indeed says that it was left to the Care and Conduct of Sir William Jones; but as to what appears, he was only concerned in the Proviso; for it is very good reason to believe, when he says, I approve of this Proviso, he did not refer his Opinion to any other part of the Deed. And indeed any one that knew or remember him will think that he concerned himself with no other part but what he set his hand to the approbation of.  
I have taken notice of these Observations as Arguments urged by the Counsel, which taken altogether should induce their ground of Equity from a Surprise in obtaining this Deed; but when they are severally considered they seem not to be of such weight as is contended for.  
But if the Obligations had been more in number, or of greater consequence, yet let the Deed be never so ill drawn, and the Mistake and Misrecitals never so many, and the differences of Limitations in the Deed from those in the Will never so many too, yet if this Deed were really executed by the Party, all this will not be a sufficient ground in Equity to set aside this Deed. And the Counsel for the Plaintiff; were well aware of this, and therefore they go to other Circumstances out of the Deed to show this Surprise, and as far as I can observe the Objections upon this point are these.  
That there is no Proof of any previous Direction for drawing of this Deed, there is no Proof of the Draught or Deed's being read to the Duke, no Counterpart was executed: The trusties were not acquainted with it, there was an Estate limited to Sir Thomas Clarges, when there were great differences between the Duke and him; it is not subscribed by the Duke's Counsel, as all Deeds executed by him used to be; that it was engrossed according to the Draught, and that in a very material place, for if it had been according to the Draught, the Duke had been Master of the Estate by a general Trust; and if it were not perused by Sir William Jones, or he was not a Witness to it, than so far as Sir William Jones was surprised in the matter, the Duke was so too.  
Now as to the want of Proof of any previous Directions for this Deed, that is not strange after such a length of time Sir Thomas Stringer who drew it, dead, four of the Witnesses to the Execution of it are dead too. But the presumption is very strong, when the Draught is of Sir Thomas Stringer's Son's Handwriting, and corrected, and interlined by his own hand in several places, that he had Orders and Directions from the Duke to prepare such a Deed.  
The Reading, or not Reading the Deed to the Duke, doth not appear it might be read to him before, and it was not necessary it should be read to him at the time of the Executing; if it were, than the Will of 87, lies open to the same Objection, for that was not read to the Duke when he sealed it.  
As to that Objection that there was no Counterpart, nor the trusties acquainted with it, that can be nothing of an Objection, for the Deed remained in the Duke's hands, till a little time before his going to Jamaica, as appears by my Lord of Bath's Answer, which hath not been falsified, as I know of, in any point; nor was there any Occasion to give Notice to the trusties, because th●re was no manner of Estate, or Trust lodged in them. But my Lord of Bath was the only Person that had any Trust in him by the Deed, therefore there was no Reason that it should be known to any one but him. And the Nature of the thing, and all the Proofs show, that it was intended to be concealed.  
Then as to the Story of Sir Tho. Clarges, and the Differences between the Duke and him, there is no Proof of it: It is at most but an Hear-say, testified by one Witness.  
That it was not Subscribed by the Duke's Counsel, as all his Deeds usually were, it seems to me to be of no very great Weight, when the Draught appears under Sir Thomas Stringer's Son's Hand interlined, and corrected by himself, and Sir William Jones a Witness to the Execution, and present when it was completed: Sure that can never signify any thing.  
As to the other Observation that was made, that the Deed was not Engrossed according to the Draught, and the Variation is in so Material a part, as to make the Duke Master or not Master of the Estate; it should be considered, First, That upon view of the Draught, it is plain, Words have been cut off; and there is a positive Witness, who swears, That he twice Engrossed the Deed by the Draught. It is possible, that a Man may twice leave out the same Words in Engrossing a Deed by a Draught: But, that he should twice add the same Words that were not in the Draught, is very strange, and not easily to be believed.  
Then say they, This is not the Draught that was first perased, and approved of by Sir William Jones. That is certainly such an Objection as never was made before; and indeed it is likely there never was Occasion to make such an Objection, till the last Hearing, for it may be it was not cut till then. But pray let it be considered, for whose Interest it was to have this Draught cut, or altered from the Ingrossment. It is impossible it should be cut off for the Interest of my Lord of Bath, by the Objection that ariseth from it; for let any Words in Nature have been there, they could not have been of such Disadvantage as they would have it to be. However, be the alteration of the Draught what it will, if it were not done by the Defendants, nor was for their Interest to be done, nor done before the Execution of the Deed, it all signifieth nothing.  
But I think it is fit and proper here, to say something to that Notion, that where the Counsel is surprised, that is a surprise upon the Client. I take that to be a matter of a very great Consequence, and I fear it would shake most of the Settlements of Estates in England, and for that I would mention the Case of Sir James Herbert, and the late Lord of Pembroke. There was a Bill brought in this Court, to set aside the Will of the Elder Brother, who was the late Earl of Pembroke but two. Sir James was Heir at Law, and the other was but half Brother.  
That Earl had taken a Displeasure at his Brother, and sent Directions to Mr. Swanton to draw a Will and Settlement of his Estate, and amongst other things, orders to be sure that the Brother should have no power over the Estate, to dispose of it; & because that in his Grandfather's Will there was such a Settlement as he liked of, he sends him that, Swanton makes a Will, and limits an Estate to Sir Philip Herbert the Brother for life, and the remainder to the Heirs of his Body. This Will is brought by the Counsel to the Earl, and read, and Executed, and held to be Good, yet this was a Notorious Surprise upon the Counsel; for nothing is plainer, than that the Counsel had made a Mistake, or knew not the Law. He did not, at best, consider, that upon such a Limitation, the Law uses the whole Estate Tale in him, and he may dispose of it.  
It is plain he had not pursued the Will of the Grandfather; but yet when this Cause came to be heard before my Lord North, when the Will appeared to have been truly executed, the Court declared it was a Misfortune, that they did not go to a better Counsel. And it was sent to Law, to try whether it was the Will of the Earl of Pembroke or no; and it being found to be the Earl's Will, the Bill was dismissed with Costs.  
Thus I have taken Notice of what has been offered to prove the Surprise. I would shortly mention on the other side, what hath been insisted upon, to show that there was nothing like Surprise; but all was done upon a very good ground, and pursuant to a settled full purpose, continued for so long a tract of time, to the Duke's death.  
First, Say they, It doth appear there were a very near Relation between my Lord Duke, and my Lord of Bath; and that Duke George owned, and owed his first setting out in the world, to the Ancestors of my Lord of Bath: It doth plainly appear there was a most particular Friendship, and mutual Confidence between them, in Matters of the Highest Nature, and Chiefest Concern: Nay, that this proceeded so far on my Lord of Bath's side, in Duke George's time, that he prevailed with King Charles the II. to promise under the Sign Manual, and recommend it to his Successors, to Create my Lord of Bath Duke of Albemarle, if here were a failure of Issue by the Duke.  
Then that this Friendship did continue between Duke Christopher, and my Lord of Bath, is plain beyond all Controversy; for it began upon a very good Foundation: That is, Whereas the Garter should have been given to the Earl of Bath, he prevailed to have it returned to the Young Duke, and it continued so much all along, that there was nothing of Moment relating to the Duke's Affairs, in which the Earl was not mainly concerned. And all this is proved by a Series of Letters, continuing down from the Death of Duke George, to the Death of Duke Christopher.  
In 74 he sends him Word he had pursued his Advice, and his Advice should always be very prevalent with him.  
In 75 he tells him, he expected to see him with great Impatience, because he was not able to go on in the Regulation of his Family, without his Assistance and Advice; that he had finished his Will, and would make all more Perfect when he came to him. It should seem his former Will was trusted in my Lord's Hands; and when that was returned, or brought up, in a few Days after, this Will of 75 is made, and by that, all the Estate, or the main of it, is given to my Lord of Bath; and it was the first Will I think that he made, after he came of Age, and had any Power to dispose of his Estate in Land; and thereby, as I said, he Deviseth the bulk of it to my Lord of Bath. He always desired, as the Will declares, That in case he had no Issue, the Earl might succeed him in his Honours and Estate, as well out of true Affection to him, as his nearest Kinsman on his Father's side, as out of due Gratitude for the many Acts of Kindness and Service done by the Earl, beyond all the rest of his Kindred and Friends; upon which, he humbly desires his Majesty to confer the Dukedom upon him, and that the Eldest Son of the Earl, and so successively the Eldest Son of the Family, should be called Lord Monk, to preserve his Name and Honour in Memory of his Father, and of himself. There cannot be Words that express more Kindness and Respect, and intention of Advantage than are here used.  
There was an Attempt, by Proofs in this Cause, to shake the Credit, even of this very Will; but when the Counsel, on that side, came to speak to it, they could produce no proofs that would at all come near it: It is plain then, that at this time no Man could have more Kindness for another, than the Duke had for the Earl.  
In the Year 78, there appears the same sense in the Duke of the Earl's Friendship, by his Letters, and the Obligations of Gratitude he had to him. That he had no Friend in whom he could confide but himself, and desiring him to come to assist him in the Management of his Affairs. That his Kindness and Friendship was never to be forgotten, without the Highest Ingratitude.  
All this is a sort of Evidence, against which there is no opposition to be made: so it also continued to the Year 80. when he sent him word of a Servant's death, and desired him to secure his Papers and Accounts.  
Thus it stood to the time of making that Settlement; and while the Duke and he were upon such Terms with one another, it was no strange thing that he should make such a Deed as this, and the manner both of preparing and executing it, seems far from having anything of surprise in it.  
Then the next thing that hath been urged, was, that this being a Settlement, under a power of Revocation, which he intended to make use of, it was Secreted and Concealed from him; so that he could not know what his Power was; and several Cases were put, where a Man, in such Circumstances, knowingly suffers a Purchaser to go on with his Bargain, he shall not have any Advantage by such a Concealed Settlement. Those Cases were all admitted to be good, and particularly, that mentioned by Mr. Baron powel, and my Lord Ch. Just. Treby, the Case of Mr. Clare. And I think truly I need go no further, than to say, That there is no Resemblance between that Case and this. That is, where a Purchaser is concerned, and the Person that conceals the Deed, suffers the Purchaser to proceed without giving him any notice.  
If indeed there had been a full and clear Proof, that the Duke had a real intention to Revoke this Deed, if he could have known what he was to do in order to it, and had been hindered by the Fraud an● Contrivance of any Person concerned in it, in point of Advantage; and if by such Concealment it was impossible for him to know the true Circumstances of his Power, that would have made a different Consideration in a Court of Equity; but there is no Proof that these Deeds were ever in the hands of my Lord of Bath, till some little time before the Duke went beyond Sea, when the Duke delivered them to him.  
For as to Aleman's Deposition, that was but a delivery upon the Execution, and not a delivery for Custody.  
And my Lord of Bath in his Answer says, He had not them till then expressly; so that, as far as that goeth, it is all the Evidence you have, where the Deed lay all the while. And his Answer is fortified in this, by what Mr. Courtney says, that my Lord told him, when he came to him, that the Deed itself was in the Hands of the Duke, and he had received the Draught from the Duke, to advise upon. And it is further verified by two Material Facts, by the Abstract that was taken about some two Years before, by Sir Thomas Stringer, and by what is admitted on all hands, was by my Lord of Bath delivered up, when the Will of 87 was preparing; and that the Will of 75, and Deed, being produced together, under the Duke's Seal, after his death, it is to be taken, that both together were put under the Cover, and Sealed up by the Duke, and delivered to my Lord of Bath, as he himself says in his Answer. There being then so much ground to believe, that the Deed was in the Duke's own hands, what Obligation should there be supposed to lie upon my Lord of Bath to make any mention of it to him? It was always intended to be a private thing; that is plain. There is no Proof what the purposes of the Duke were in making the Will, the Purport and Effect of the thing speaks itself.  
But my Lord of Bath says, That upon the selling of Dalby and Broughton to my Lord Jefferies, he did give the Duchess a Caution not to be so earnest for finishing the Bargain, for she might be a loser by it, which could mean nothing, but that she had an Interest in it by this Deed.  
As to the Objection, that my Lord of Bath stood by, and saw that Purchase made, and gave no notice of this Deed to the Purchaser, I confess, had my Lord of Bath set up this Deed against, and to overthrow that Purchase, that would have brought it up to the Case of Wraw and Ford; but every body knoweth that a bare voluntary Settlement is of no force against a Purchaser, without notice; and as to the Leases, and Grants of Annuities, there is no Proof that ever my Lord of Bath knew of them.  
Then it was Objected, that tho' it go not so far as purposed Concealment, yet the thing was out of mind, and the Duke continuing Owner of the Estate, and acting as Owner, though not with all the Circumstances required, those Acts done by him as Owner, are to be Supported in a Court of Equity. This seems a hard Demand for a Voluntary Devise, to crave Relief against a prior Settlement, with a Power of Revocation, because he that made that Settlement had forgotten it. There is no Precedent to warrant a Decree of that Nature, nor is there any Pretence of Reason for it: For betwixt Two Persons, each of which claim by a Voluntary Settlement, the matter stands upon an equal Poot, and there is no possibility of an Equitable Consideration, to assist the one against the other.  
And if there were any Ground for it, as a Notion, there were no Room for any such Notion as to the Proof in this Case. For it is founded upon a Supposition that the Duke of Albemarle had forgotten the Settlement; of which there is no Proof, but only an Argumentative one, drawn from his disposing of his Estate another way and manner. But that he had not forgotten it, besides the Answer of Mr. Greenvil, and Sir Walter Clarges, there are other things to be ●id. And as to their Answers, I take it, no Decree can be made against a Man's Answer, upon the Proof of one Witness; Why then should a Decree be expected against a Man's Answer, where there is no Proof to the contrary at all?  
Sir Walter Clarges (upon some what that had been told him of the Duke's intentions towards him by this last Will) as should seem took the liberty to complain to the Duke, and seemed much discomposed; but the Duke bid him not be concerned at what Stringer said, for he had otherwise better provided for him: Now there is no other Provision, but what is by this Deed.  
Mr. Greenvil addressed himself to the Duke, to thank him for what Kindness (Sir Thomas Stringer acquainted him) he had shown him in his Will: but the Duke replied, (with some Reflection upon Sir Thomas Stringer, who pretended to have been very Instrumental in it) that he had never moved him in it; but that he had taken Care of him, and his Brother would tell him wherein; and if he would, he might tell his Brother he said so. And he swears he did go to his Brother, my Lord of Bath, who told him The Duke had indeed Provided for him, and Settled a part of his Estate upon him: But that if the Duke had not allowed him so to do, by sending him to him, he would not have told him of it.  
All this is a full Proof that the Duke had not forgotten this Deed at that time; but it cannot be believed, that the Duke had ever forgotten this Deed, without disbelieving several Acts that have been substantially proved to be done by him, as when upon my Lord Lansdowns Marriage, his Letter does particularly take notice of a great Interest he had in him, and seems expressly to refer to this very Deed, as being so much concerned in his good or ill Fortune, as my Lord of Bath himself very well knew; and congratulating the Match with my Lord Treasurer's Daughter, he goes on to desire, That as he had taken care to Marry him well, so he would have great Regard to his Education, which he did mind him of, remembering still that he was most concerned in him, of any one except himself, as he very well knew. This could refer to nothing but some Settlement of his Estate, and none appears but this.  
There seems to have been some Attempt to interrupt this Friendship, and Amicable Correspondence between the Duke and the Earl; for by a Letter dated (as I take it) 31 Jan. 81. The Duke says, his Kindness and Friendship shall always be the same, and all the malicious endeavours of ill people shall not be able to break the Link between them; so that it should seem there were malicious Endeavours used, to sow differences between those Noble Persons, but by whom, is not apparent in the Proof.  
But still there is a continued Series of kind Letters between them, which goeth on even to the time of making the last Will in 87, as full of Gratitude (all the Duke's Letters, great numbers of which were produced) as can be for his continued Services and Kindness; nay, down to the time of his going to Jamaica, and while he was there. Now it looks to me very strange, that the Duke should all this while be receiving Obligations, and owning them from my Lord of Bath, and yet must be supposed to have forgotten what he had done, in acknowledgement and recompense of these Services.  
Then there is besides all this, the Positive Testimony of Mr. Cro●●s, and his Wife, both swearing particular Declarations from the Duke's own Mouth; which can have Relation to nothing but this Deed.  
There is indeed one thing that this urged as a strong Argument the Duke intended to alter this Settlement; that is, his taking such formal steps in preparing and drawing this last Will, his Advising with my Lord Chief Justice Pollexfen, and so much Solemnity as was used in having the parts of it engrossed, and delivered with such Ceremony to three several Hands. It is, they say, hard to imagine he would do all this with a deliberate intent, that it should all signify nothing as to his real Estate, and so quit the World with a great deal of Pageantry and Ceremony to no purpose.  
Now it must be owned, that it doth seem a strange part in the Duke, and the World must be surprised at it: For it is impossible to make the Duke's Actings of apeice, and reconcile such Contradictions. He cannot indeed be cleared from Prevarication. He did certainly intend to deceive the Duchess, or my Lord of Bath. It is most evident he did keep my Lord of Bath in hand, that he should have his Estate; for besides the Testimony of Mr. Prideaux, and other Witnesses, concerning the Duke's Declaration of his intending to settle, and having settled his Estate upon him, we find by this Deed, his Estate is so actually settled, and that Mind continued till 81; and it appears by Letters, as well before, as since; that Duke Christopher entrusted him in all his Affairs of Consequence, acted not in any thing, but with his assistance, continually made use of his Friendship at Court, to the time of his Death: when he was dissatisfied with any of his Servants, my Lord of Bath was the Man that must settle the matter; when he was to Purchase, my Lord Bath must buy for him; when he was to sell, my Lord of Bath was to transact the matter; when he wanted Money, my Lord was to procure it for him; when he was in danger of losing Money, my Lord is applied unto to prevent it. All this appears by the several Letters that have been read and produced. When he was gone to Jamaica, and any Request at Court, my Lord's Interest was that which he relied upon; my Lord of Bath was the single Trustee to be applied to chiefly in what concerned the Estate; the Keys of the Evidence-Room were to be deposited with him, as being principally Concerned, if he should miscarry.  
Now it must be confessed, a Man may do as much as all this comes to, and make use of another Man's Friendship, and not design to give him his Estate, when he had once firmly settled it so, and repeated his Assurance of Kindness, and continued to make Profession of Kindness all along, to the time of his Death, and went on to make use of his Service, because he thought he might freely command the Service of one who expected to have such Advantages from him; yet than I do not see but that it must be admitted, that he did deliberately design to impose upon my Lord of Bath, or if he did not, he did intend to impose upon my Lady Duchess. Now be it which it will, I do think he is not to be excused in reference to the Point of Honour, as to the Request made to the King for the Earl of Bath, and in pursuance of Duke George his desire, who engaged the late King to promise under his Sign Manual, and he hath made the same kind of Request for Mr. Monk.  
Now upon the whole Matter, whether this Will of 1687. was made to free him from some Importunities in his Family, is a great Question. There are some proofs in the Case, that greatly look that way: It is plain he did not execute it for several Months after it was prepared and drawn, and when it was published, it was obtained with great Importunity against his Inclinations at that Time; and there doth not appear any Intention, that it should revoke this Settlement; but on the contrary it should seem he did not intend so, for there are no Witnesses called to the Will, but the same that came with Stringer from Newcastle- House to that purpose; But whether he did intend it should take Effect as to the Personal Estate only, or to delude my Lord of Bath, which way his Honour is best saved, is not at all to our purpose to consider upon the Case before us in Judgement. Though I must say, take it one Way or the other, he seems to blame, and to have dealt in some sort double.  
The next thing insisted upon is, That this Deed is revoked in Equity of this Will; and though the Power be not pursued in all the Circumstances, yet his Intention appearing to make this different disposition of his Estate, a Court of Equity should supply that defect.  
Now I take it for granted, that a Power of Revocation shall not be carried further in a Court of Equity, than the Law will carry it. The Law hath been liberal in expounding Powers of Revocation favourably; and where the Law expounds a thing according to an equitable Construction, there is no reason for Equity to extend it further.  
Where there appear to be other equitable Considerations, it may have another Judgement, but if it stands without any mixture of other equitable Considerations, I think it would be very hard to break through a Settlement, especially so solemnly made, that he thought fit to restrain himself from altering it, without the Assistance of so many Noble Persons, whenever he would make use of the Power thereby reserved to him; I say it would be a very strange thing for a Court of Equity, without the mixture of any other Considerations to assist another voluntary Conveyance against this.  
The Case of Arundel and Philpot is a full Authority in this Case, and it has been so often repeated that I need not mention it any further.  
As to what was insisted upon by some about the Revocation, being completed as to the number of Witnesses, by the publication in Jamaica, and the impossibility of having any Peers there; I must confess had the Duke in Jamaica had an express deliberate Intention and Purpose, to revoke and done any Acts to testify it, and gone as far in pursuance of the Circumstances, as his Condition in those parts would admit, that might have come in within that Foundation of Equity (to wit) Accident.  
But I think there is no ground of Proof of any such Intention or Action. For the Proof amounts to no more than this. The Duke, to prevent any troublesome Applications to him, shut up himself in his Room, and those that came to him were to come in at the Window. And a strong Box in which his Papers were, standing under the Window by frequent trading upon it, he had a Suspicion that there had been some Attempts to force and open it; whereupon he calls for the Box to open it, and out of it takes several Papers, which he read, or gave to Dr. Sloan to read, several Letters as I remember, and afterwards he took up a sealed Packet, and said to the Doctor, This is my Will, and put it down again. Is this any manner of proof in the World, that this Act was done animo testandi? Much less is it any proof that there was any notice taken at this time of this Settlement, or that he would avoid it.  
I would say something to that other Point, that this being a Deed made to confirm and corroborate the Will of 75, is but Ancillary to the Will, and depends upon it, and is to stand or fall with it, and upon the Revocation of that Will did fall with it.  
This is an Objection wholly inconsistent with the other Arguments that are used against this Deed, that it was by Surprise. For by those Arguments they would destroy the Deed as inconsistent with the Will, but now the Argument is turned the other way. But my Lord Chief Justice Holt has so fully and clearly answered that matter, that I shall not need to trouble you with saying any more in it. The Cases cited about it are in no sort applicable to this Case.  
The last thing insisted upon, was, supposing the Deed to stand good, yet there being a general Trust raised in it to pay the Legacies in the Will, my Lord of Bath was no more than a Trustee, and the Duke continued Master of the Estate, and he who had such a general Power to charge the Land, might do it to the full Value, and then consequently might dispose of the Land too.  
Now this Point of Trust is the proper Subject of a Court of Equity; but to expound a Deed which is made on purpose to prevent a Descent upon the Heir, and then to make a general resulting Trust to let the Heir in, is such a Construction as will apparently contradict itself and the Deed.  
But that will fall out to be a Point that comes to be considered hereafter, how far this may be a Trust in my Lord of Bath to answer Legacies or Debts in case the Personal Estate should fall short, it is not properly considerable now.  
The only Point that was spoken to by the Counsel, and left for the Judgement of the Court was this, whether in this Case here were sufficient Matter for a Court of Equity to interpose so far as to set aside or impeach this Deed of 81.  
Now as to that Matter, I think I have the Concurrence of my Lords the Judges in it; and I am of Opinion, that there doth not appear sufficient Ground upon this Case for a Court of Equity to do any such thing. Therefore I declare my Judgement;  
That as far as my Lord Montague, and my Lady Duchess and Mr. Monk their Bills pray that the Court will interpose to set aside this Deed; so far their Bills ought to dismissed.  
As to any other Matters that arise in the Case, I suppose there will be time taken to speak to them; but this is the only Matter in Judgement before us at present.   
FINIS.