Dec. 1691. To John Dutton Colt, esq. 1254. 1s. 9d. part of 25087. 3s. 8d. (due upon composition from several persons at Bristol, for duties on Tobacco, and recovered on information) for his good services therein.

Dec. 1693. To S. Reynold, esq. and his heirs the Mannor, or reputed Mannor of Cowhorn, in the county of Hereford, with its Appurtenances, escheated to the Crown.

April 1693. To Richard, lord Colchester, a Grant of Walwood in the Forest of Waltham, with the Appurtenances, for 99 years, under the yearly rent of 6s. 8d.

April 1693. To II. Herbert, esq. 21817. 4s. 6d. and all other Monies, due from Denis Lloyde, esq. one of their majesties Receivers-General in Wales; likewise 3241. 3s. 4d. and all other sums due from John Nash, esq. another of the said Receivers, for the year ending at Michaelmas 1688.

Mem. Mr. Herbert informed the Commissioners, he received no benefit from the said Grant, by reason other persons had claims on the said Arrearages.

Dec. 1693. To Edw. Russel, esq. Admiral of the Fleet, in consideration of his many faithful services, especially destroying a considerable part of the French fleet, in 1692, a Grant of the Residue of 20,000l. to arise from the fall of hasle in the Forest of Dean, after such payments are made, as are already charged upon it.

Mem. It doth appear to the Commissioners, That above 10,000l. hath been already disposed of, out of the said 20,000l. viz. To sir J. Guise, 7,000l. as before-mentioned, 500l. to Daniel Osborne, esq. to repair the Town of Heydon, and 2,500l. for Secret Service, to Mr. Guy."

pending, wherein the Petitioners were plaintiffs, and John earl of Bath, sir Bevill Granville, knt. Bernard Granville, esq. sir Thomas Clarges, knt. sir Walter Clarges, bart. Tho. Clarges his son an infant, Arthur Farewell, Monk Rawlinson, esquires, Tho. Pride, esq. and others, Defendants; as also upon the several Answers of John, earl of Bath, Bernard Granville, esq. sir Bevill Granville, sir Tho. Clarges, knights, and sir Walter Clarges, bart. and Tho. Clarges his son, Arthur Farewell, esq. Monk Rawlinson, esq. by Roger Moore, esq. serjeant at law, his guardian, put in thereunto; and upon full and due consideration of what was offered by counsel on either side, and long debate thereupon: It was this day Ordered and Adjudged, by the lords spiritual and temporal in parliament assembled, That the said Petition and Appeal shall be, and is hereby, dismissed this house; and that the Decree of Dismission complained of in the said Petition and Appeal shall be, and it is hereby, affirmed.

In the course of the debate upon this important Cause,

The Bishop of Worcester (Dr. Stillingfleet) spoke as follows:-"My lords; I have been unwilling at any time to give your lordships any trouble by my speaking, and I should be much more so iu a cause of so much difficulty and importance, if I do not think it my duty to say something at this time in order to bring this matter nearer to a resolution. Most of your time hath been taken up in things which come not up to the main point before us; which is, how far the authority of this house extends, as a court of equity, in a matter, which is determined at common law by a jury. Lord Falkland voted to the Tower.] Feb. 16. But that I may proceed with all possible clearMr. Rainsford's Examination, and lord Falk-ness, I shall consider, 1st. How the matter land's Information, before the Commissioners of Accounts, being read, and lord Falkland having been heard, and withdrawn; a motion being made, and the question being put, "That lord Falkland, being a member of this house, by begging and receiving 2000l. from his majesty, contrary to the ordinary method of issuing and bestowing the king's Money, is guilty of a high Misdemeanor and Breach of Trust;" it passed in the affirmative, 143 to 126.-Resolved, "That lord Falkland be committed to the Tower of London, during the pleasure of this house; and that Mr. Speaker do issue his warrant accordingly."

Bishop of Worcester's Speech in the Great Cause of the Earl of Bath.] Feb. 17. After hearing counsel several days, at the bar, upon the Petition and Appeal of Ralph earl of Montagu, Elizabeth dutchess of Albemarle his wife, Christ. Monk and Henry Monk esquires, by Mary Monk their mother, next friend, and guardian, from a decree of dismission made and pronounced in the Court of Chancery, the 22d of Dec. last, in several Causes there de

* He was discharged, upon his Petition, on the 19th.

comes before us. 2dly, What way and method is to be taken for a resolution in it. 1st, This matter comes before us by way of appeal from the court of Chancery; where the question was, Whether there were any ground in equity to set aside a deed of settlement of the duke of Albemarle's estate on the earl of Bath; which deed was found by the verdict of an unexceptionable jury after a fair hearing of the canse. Against this deed a will is set up, made A. D. 1687, with great deliberation, and well attested; whereof the duke left three several copies, and owned it to be his will a little before his death, and is since approved by a sentence of the court of delegates, and by a de cree in chancery, as to the personal estate. These are both voluntary settlements, and there was no obligation of nature, as in case of children; nor of justice, as in case of creditors, or purchasers; and therefore the point proves the harder, how far eyes the supreme court of equity can relieve against a deed found at common law. It is not questioned in the case, but if a point of equity be found in the case, it is relievable here. For equity, as it is understood here as to a court of equity, is some consideration which makes a thing reasonable to

their verdict stands, we must go according to their judgment in the matter of fact. But the great thing insisted upon was, that the deed was obtained by way of surprize upon the duke; and of this the jury could not judge, but a court of equity ought. Surprize is a sort of fraud upon a man's understanding, and is con

man reposes in another: but he that is surprized, as soon as he can, endeavours to prevent the effects of it. Here was a power of revocation left, which would never, have been in a deed by surprize. Was it not in the duke's power in all the time, from the sealing the deed to his going to Jamaica, to have set the matter right, and to have made the earl of Bath sensible of what he had gotten by surprizing him into such a deed? Is there any thing persons of honour are more sensible of, than being surprized into settlements against their minds? The duke had it still in his power to have revoked his deed in the manner prescribed for several years; and since he did nothing of that kind, it is a great argument to me, that there was no surprize. 2dly, There is ground for relief in Chancery upon not observing all the circumstances in a power of revocation, if any accident hinders the keeping close to them. If there were no allowance for accidents, our

and therein declares, that no future will shall stand good, unless the former be revoked, he doth bind himself so far, that a latter will, although never so freely made, shall not obtain unless there be an express revocation of the former. And this generally obtains in the courts of law and equity abroad, as we are very well informed; and they look upon such limi-trary to that trust and confidence which one tations, but as a kind of protestation before hand against the freedom of his consent to any such act, wherein these circumstances are not observed. And we are told by those who best understand our law, that there is no rule more | clear in our law-books than this, that all the circumstances of a power of revocation must be observed to make it good and effectual; as it is plainly delivered in Scroop's case, and Kibbet and Lee's case. It is certain, that the law may make some things so necessary, which in themselves are not so; that without them the act is void; as livery of seisin, as to the possession of lands and tenements in freeholds Can any one imagine, that the circumstance of taking a clod of earth in an open field, upon a twig or bough, should be necessary to convey the inheritance of it; or the holding the ring of a door, as to a house, &c. or of a rod, for a copyhold estate ? What frivolous things in themselves are these? and yet when the law bath made them necessary, they must be ob-law would be very unreasonable. I do not served. What seems more repugnant to natural reason and equity, than the way of fines and recoveries? For therein by mere fiction of law, without hearing the parties concerned, or giving any reason, the next heir at law is barred from the remainder of the estate; and yet there is no relief in equity in this case: but the greatest part of estates at this day are under such settlements. So that it is very dangerous to break in upon laws, because the things which the laws require seem to be trivial and circumstantial. 2dly, But is the law of England so unreasonably severe in these minute circumstances, as to render a solemn and deliberate act void for want of them, and so as to have no relief in equity? No, I think the courts of equity are to allow relief in such cases where it is reasonable to allow it: that is, in these following: 1st, In matters of fraud and circumvention there is relief in equity, although there have been judgment at common law. As in the case of Courtney and Glanville; wherein there was a notorious fraud discovered after a judgment at law, Cr, Jac. 344; wherein the Chancery was certainly in the right in giving relief; because a jewel not worth above 201. was sold at 3601. But the fraud must be plain, and evidently proved, not depending on conjectures and suspicions; and it must be such proof as did not lie before the jury which gave the verdict. And if there were ground to believe the jury mistaken, there ought to have been a new trial: but since there hath been no motion that way, we are to look upon the verdict as good; and that such evidence ought not to sway with us now, which, if it had been true, must have altered their verdict. As long as

say that at common law there is to be an allowance for them; but that very thing makes a court of equity necessary. I can hardly think with patience of the great cause of Throckmorton and sir Moyle Finch, because it seems a reproach to the nation. The case, in short, was this: Throckmorton had a lease from the crown, with a condition, that if the rent were not paid in such a time, the lease should be void. Sir Moyle Finch purchases the reversion of the lease, and enters for nonpayment of the rent; and upon hearing, obtained a judgment at law, which was affirmed in writ of error. Throckmorton exhibited a bill in Chancery; setting forth, that he sent his servant with the rent, at the time, but he was robbed; and as soon as he knew it, he paid it the day after, and the queen accepted it. Yet this is 'the precedent, which my lord Coke several times insists upon against relief in equity; which, in my opinion, turns the other way, and shews the necessity of a court of equity in a nation that would do equal justice to mankind; which doth not depend on mere forms of law, but on the equity and just reason of things. Now, if in the present case the duke had sufficiently expressed his intention to revoke the deed; but some accident, which he could not foresee or prevent, had hindered him from all the particular circumstances, I should have thought there had been sufficient ground in equity for relief; but nothing of that nature is pretended. 3dly. If the intention of the party to revoke be clearly and undeniably proved. For as in wills the great thing to be

* Of which place he was Governor.

limited powers of revocation; it may be, he remembered the general power of revocation, and forgot the limitations of it; is there no relief in that case? This is the hardest point of all in this case: and it seems very reasonable to relieve against the defect of memory in such cases, wherein persons are to part with their estates, which they are not willing to think of. It is very reasonable to suppose the case; whether it be so reasonable to relieve in it, is the question. Suppose a man forgot to take livery of seisin as to freehold estates, or to surrender in copyhold estates, or to transfer from the right heir without fine or recovery, will the law relieve him? No: But equity may. Not in cases determined at law, and which estates are to be settled by; which every man at his own peril is bound to remember, or to advise with those who would put him in mind of it. But here is not any evidence of forgetfulness. If the duke had told sir H. P. or sir R. Cl. that he had some obscure remembrance of a deed, and a power of revocation, they would have had the deed produced, and the powers examined, and the revocation executed according to them: But since there ap pears nothing of all this, we are not to presume it, and to judge by the things which do not appear. 3dly, As to the precedents on both sides yesterday opened and argued, I found not one come up to the present case; but I found several good rules of equity, which are observed in the judicial proceedings of the court of equity. As 1st, To make a favourable construction of the words and designs of a will. So in Pitt's and Pelham's case, where the will was void at law for want of a clause to appoint the heir to sell the estate. 2dly, To supply some defects where the intention of the party was clear and without dispute, as in the case of Sinith, Ashton, Thwaits and Deye, where seals were wanting to their wills; but there was manifest proof of the intention of the persons; and so the want of seisin in the case of lady Cranburn and Delmahoy. 3dly, To accept an equivalent where the bare letter of the settlement was not pursued, as in Popham and Bamfield's case. 4thly, To set aside settlements procured by fraud and circumvention, as in the case of sir Henry Hele and Ring, where there was manifest fraud in the inequality of estates, and the

looked at is Animus Testandi; so in revocations, that there be Animus Revocandi; especially if there be an opinion, that a deed cannot be revoked by a will, and there be reason to believe that he might have that opinion. I do not insist upon it, that there is full proof that the duke sent the earl of Bath to Courtney to know if a will would void the deed, and that he said it would not. But this is in the earl's answer; and Courtney deposes, that the earl told him so. The use I make of it is, that there ought to be the stronger proof of the duke's intention to revoke the deed. And we are now to consider, what frequent opportunities the duke had of declaring his mind to this purpose, and that he never did it. 1st, When he spake first to sir R. Clayton about making his will, he never said any thing to him about the deed; and when by his advice he sent sir H. Pollexfen to advise about his will, he said not a word to him about this deed. Then was the time to have shewed his resentment of the surprize, if it had been such, and to have taken order for an effectual revocation of the deed. When I consider the manner of his making the will in 1687, the deliberation and advice he took about it, the time that passed before the sealing it, I must think one of these two things; either that the duke never heard or knew of any such deed at all, or had forgotten it as much as if it had never been, (aud, if so, I must believe several of the witnesses forsworn, which swear to his intention of leaving his estate to the earl of Bath, as Mr. Prideaux and others, which swear to particulars only contained in the deed) or else, that the duke had a purpose for some ends to make the will, which do not lie before us to judge of; but he had no purpose to revoke the deed, but to leave both the will and deed, and let the law determine it when he was out of the hearing of the clamours that would be made about it. 2dly, When the duke lay sick at Jamaica, and upon the opening the strong box, his will was discovered: That, saith he, is my will. Was ever a fitter opportunity than at this time to have declared his intention of revoking this deed in the presence of so many witnesses, and this to have been his last and solemn act of revocation of all deeds and wills whatsoever? What was the reason this was not then done? There was no earl of Bath, or his agents, then near him; he was at full liber-different assurances given. 5thly, To relieve in ty to have declared his mind clearly in this matter; and if he had done it then, he would have given me satisfaction that he intended to have revoked the deed, and then I should not have stuck at the want of three peers, or other minuter circumstances. But as things are in proof before us, it doth not appear to me that he had any intention of revoking the deed, as is necessary for the setting it aside after a verdict at law for it. For the verdict gives the earl of Bath a legal title to the estate, and therefore the evidence of the revocation must be such as must give us ground to overthrow the force and effect of such a verdict. But suppose the duke remembered the deed, and had forgotten the

case of any accident hindering the performance, as in the case of Ward and Lee; where it was declared in the decree, that if there was a manifest intention to revoke, but a disability happened, there was ground for relief in equity; but since in that case there was only a cancelling the deed in a passion, and his intention it should continue was plain, therefore the court decreed it to continue a good deed in equity. But in this case there is no proof of fraud, accident, or manifest intention to revoke the deed: but here are two voluntary settlements, and one of them confirmed by a verdict at law; and therefore unless some clear and undeniable point of equity do appear,