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         England and Wales. Court of Chancery.
      
       
         
           1685
        
      
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         A43190
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         99830201
         34651
         
           
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             The heads of the judges arguments for the deceased Duke of Norfolk, in the case between him and his brother Mr. Charles Howard, with some observations on the Lord Chancellor Nottingham's arguments.
             England and Wales. Court of Chancery.
             Nottingham, Heneage Finch, Earl of, 1621-1682.
             Howard, Charles, d. 1713.
             Norfolk, Henry Howard, Duke of, 1628-1684.
          
           1 sheet ([1] p.)
           
             s.n.,
             [London :
             1685]
          
           
             Imprint from Wing.
             Reproduction of the original at the British Library.
          
        
      
    
     
       
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           Future interests -- England -- Early works to 1800.
           Remainders (Estates) -- England -- Early works to 1800.
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           The
           Heads
           of
           the
           Judges
           Arguments
           for
           the
           Deceased
           Duke
           of
           Norfolk
           ,
           in
           the
           Case
           between
           him
           and
           his
           Brother
           Mr.
           Charles
           Howard
           ,
           with
           some
           Observations
           on
           the
           Lord
           Chancellor
           Nottingham's
           Arguments
           .
        
         
           THE
           Judges
           all
           agreed
           that
           the
           Limitation
           to
           
             Charles
             Howard
          
           was
           a
           void
           Limitation
           of
           the
           Trust
           ;
           and
           that
           the
           Bill
           ought
           to
           be
           dismissed
           ,
           grounding
           their
           opinions
           on
           the
           following
           Reasons
           .
        
         
           1.
           
           All
           the
           Trust
           of
           the
           whole
           Term
           was
           vested
           in
           Henry
           by
           the
           Limitation
           of
           it
           to
           him
           and
           the
           Heirs
           Males
           of
           his
           Body
           ,
           which
           in
           Law
           is
           a
           Disposition
           of
           the
           whole
           Interest
           :
           such
           a
           Trust
           being
           indeed
           greater
           in
           its
           nature
           ,
           than
           a
           Term
           of
           years
           is
           capable
           of
           ,
           in
           regard
           it
           cannot
           go
           to
           Heirs
           Males
           ,
           but
           therefore
           hath
           been
           often
           resolved
           to
           contain
           the
           whole
           Interest
           .
           And
           where
           a
           term
           for
           years
           is
           under
           such
           a
           Limitation
           that
           will
           admit
           no
           Remainder
           ,
           there
           can
           be
           no
           Contingent
           Remainder
           limited
           of
           such
           a
           Term
           ;
           and
           to
           make
           that
           Limitation
           which
           could
           not
           be
           effectual
           by
           the
           Rules
           of
           Law
           ,
           as
           a
           Remainder
           to
           take
           effect
           by
           calling
           it
           a
           springing
           use
           ,
           is
           but
           a
           Quibble
           too
           light
           to
           have
           the
           countenance
           of
           the
           Law.
           
        
         
           2.
           
           It
           's
           contrary
           to
           the
           Rules
           of
           Law
           ,
           to
           limit
           an
           Interest
           either
           in
           Law
           or
           Equity
           of
           a
           Term
           ,
           to
           take
           effect
           after
           any
           ones
           dying
           without
           Issue
           of
           his
           Body
           ,
           and
           of
           a
           dangerous
           Consequence
           ;
           for
           it
           would
           tend
           to
           make
           Perpetuities
           and
           fetter
           Estates
           :
           inasmuch
           as
           it
           is
           allowed
           of
           all
           hands
           ,
           that
           if
           there
           can
           be
           such
           a
           Limitation
           by
           Law
           ,
           allowed
           after
           a
           dying
           without
           Issue
           Male
           ,
           there
           is
           no
           possibility
           of
           docking
           or
           destroying
           the
           Interests
           that
           are
           under
           such
           Limitations
           ;
           so
           that
           such
           Estates
           can
           never
           be
           sold
           or
           parted
           with
           ,
           no
           Recoveries
           reaching
           them
           ,
           nor
           no
           Method
           in
           the
           Law
           nor
           possibility
           to
           do
           it
           ,
           which
           would
           make
           Estates
           stagnate
           in
           a
           Family
           ,
           and
           discourage
           all
           Ingenuity
           and
           Industry
           ,
           which
           the
           Law
           perfectly
           abhors
           —
           And
           this
           the
           Lord
           Chancellor
           allows
           in
           his
           Arguments
           in
           this
           Case
           in
           his
           third
           Conclusion
           .
           And
           it
           mends
           not
           the
           matter
           ,
           to
           say
           that
           this
           is
           under
           a
           Limitation
           of
           Thomas
           his
           dying
           without
           Issue
           in
           the
           Life
           of
           Henry
           ;
           for
        
         
           3.
           
           
           This
           is
           a
           stretch
           farther
           than
           ever
           before
           was
           endeavoured
           ,
           the
           Judges
           have
           gone
           as
           far
           as
           is
           fit
           in
           indulging
           mens
           dispositions
           of
           Terms
           to
           take
           effects
           by
           Limitations
           after
           Lives
           —
           If
           this
           Limitation
           should
           be
           admitted
           (
           if
           Thomas
           dye
           without
           Issue
           in
           the
           Life
           of
           Henry
           ,
           then
           the
           next
           strain
           would
           be
           to
           limit
           a
           Term
           over
           upon
           ones
           dying
           without
           Issue
           during
           the
           Lives
           of
           two
           or
           three
           ,
           and
           then
           of
           twenty
           men
           :
           and
           then
           if
           he
           should
           dye
           without
           Issue
           within
           seven
           years
           ,
           for
           that
           is
           equal
           to
           a
           Life
           ,
           and
           then
           within
           twenty
           years
           ,
           then
           why
           not
           within
           a
           hundred
           years
           ,
           and
           then
           why
           not
           within
           a
           thousand
           ,
           or
           during
           the
           term
           ,
           &c.
           for
           all
           these
           are
           less
           Interests
           in
           the
           eye
           of
           the
           Law
           ,
           than
           a
           Freehold
           ,
           and
           where
           should
           we
           end
           or
           stop
           ;
           for
           it
           must
           be
           confessed
           that
           there
           is
           the
           same
           reason
           for
           all
           these
           ,
           as
           it
           was
           by
           experience
           found
           upon
           the
           Judgment
           of
           Mathew
           Manning's
           Case
           ,
           when
           it
           was
           once
           allowed
           that
           a
           term
           for
           years
           might
           be
           limited
           to
           one
           ,
           and
           if
           he
           died
           within
           the
           term
           then
           to
           another
           ;
           it
           was
           soon
           found
           that
           there
           was
           the
           same
           reason
           to
           allow
           a
           Limitation
           of
           it
           after
           two
           as
           twenty
           Lives
           ,
           which
           hath
           been
           the
           occasion
           of
           Fettering
           Estates
           exceedingly
           by
           such
           Limitations
           of
           terms
           to
           take
           effect
           after
           Lives
           ,
           and
           made
           the
           Judges
           often
           repine
           at
           that
           Judgment
           ,
           and
           declare
           that
           if
           it
           were
           now
           a
           new
           Case
           ,
           since
           they
           have
           seen
           the
           Inconveniencies
           of
           it
           )
           it
           would
           never
           have
           been
           so
           adjudged
           .
           So
           Bridgeman
           in
           the
           Case
           of
           Grigg
           and
           Hopkins
           .
           Siderfin's
           Report
           fo
           .
           37.
           
        
         
           4.
           
           It
           's
           agreed
           on
           all
           hands
           that
           there
           is
           the
           same
           reason
           and
           ground
           of
           allowing
           Limitations
           of
           terms
           for
           years
           at
           Law
           ,
           as
           there
           is
           for
           allowing
           Limitations
           of
           trusts
           of
           terms
           for
           years
           in
           Equity
           and
           no
           other
           :
           Now
           there
           hath
           never
           been
           any
           Judgment
           that
           the
           Limitation
           of
           a
           Term
           to
           one
           ,
           after
           anothers
           dying
           without
           Issue
           was
           good
           —
           It
           hath
           been
           often
           endeavoured
           ,
           and
           (
           if
           it
           could
           have
           gained
           the
           Precedent
           of
           such
           a
           solemn
           Resolution
           )
           would
           no
           doubt
           of
           it
           ,
           be
           too
           often
           practiced
           .
           But
           it
           hath
           always
           been
           disallowed
           ,
           and
           many
           Judgments
           against
           it
           —
           Leventhorp
           and
           
             Ashby
             Pasc.
          
           11
           Car.
           1.
           in
           
             B.
             Reg.
          
           Rolles
           611.
           
           Sanders
           and
           Cornish
           Rolles
           611
           ,
           612.
           
           Rolles
           2.
           
           Rep.
           1
           Cro.
           Backhurst
           and
           Bellinghams
           Case
           .
           
             Mod.
             Rep.
          
           115.
           and
           Burgis
           Case
           there
           reported
           .
        
         
           And
           Child
           and
           
           Bayley's
           Case
           Trin.
           15.
           
           
             Jac.
             Rot.
          
           183.
           in
           
             Banc.
             Reg.
          
           which
           is
           a
           Judgment
           in
           the
           very
           Point
           —
           
             William
             Heath
          
           being
           possessed
           of
           a
           term
           for
           76.
           years
           ,
           by
           his
           Will
           devised
           it
           to
           his
           Wife
           ,
           and
           afterwards
           to
           William
           his
           Son
           ,
           provided
           that
           if
           William
           his
           Son
           should
           dye
           without
           Issue
           of
           his
           body
           then
           living
           at
           the
           time
           of
           his
           death
           ,
           then
           Thomas
           his
           eldest
           Son
           should
           have
           the
           term
           ;
           William
           did
           dye
           without
           Issue
           ,
           living
           Thomas
           ,
           yet
           Thomas
           could
           not
           have
           the
           term
           ,
           because
           the
           whole
           Court
           of
           Kings-Bench
           adjudged
           that
           the
           Limitation
           to
           Thomas
           after
           the
           death
           of
           William
           without
           Issue
           (
           tho
           this
           Contingent
           was
           confin'd
           to
           a
           Life
           ,
           as
           here
           it
           is
           )
           was
           void
           ,
           for
           the
           reason
           before
           mentioned
           .
           And
           this
           Judgment
           afterwards
           affirmed
           in
           a
           Writ
           of
           Error
           in
           the
           Exchequer
           Chamber
           ,
           by
           all
           the
           Judges
           of
           the
           Common
           Pleas
           and
           Barons
           of
           the
           Exchequer
           ,
           so
           that
           it
           was
           a
           solemn
           Judgment
           of
           all
           the
           Judges
           of
           England
           ,
           and
           which
           alone
           were
           enough
           to
           rule
           the
           Case
           in
           question
           .
        
         
           Yet
           the
           Lord
           Chancellor
           Decreed
           this
           Limitation
           to
           Charles
           to
           be
           a
           good
           Limitation
           ,
           and
           that
           he
           should
           hold
           the
           Barony
           during
           the
           residue
           of
           the
           term
           ,
           and
           have
           an
           account
           of
           the
           Profits
           thereof
           from
           the
           death
           of
           Duke
           Thomas
           .
           Declaring
           his
           reasons
           to
           be
           as
           followeth
           .
        
         
           1.
           
           
           Some
           men
           have
           no
           Estates
           but
           Terms
           of
           years
           ;
           and
           he
           that
           hath
           a
           term
           of
           years
           ,
           hath
           as
           much
           right
           to
           dispose
           of
           it
           ,
           as
           he
           that
           hath
           a
           Fee-Simple
           .
        
         
           2.
           
           
           Unless
           these
           words
           (
           if
           Thomas
           dye
           without
           Issue
           in
           the
           Life
           of
           Henry
           )
           have
           the
           effect
           of
           excepting
           this
           out
           of
           the
           common
           Cases
           of
           limitting
           terms
           over
           upon
           ones
           dying
           without
           Issue
           —
           The
           words
           are
           idle
           and
           of
           no
           effect
           .
        
         
           3.
           
           
           This
           might
           have
           been
           done
           in
           another
           way
           (
           viz.
           by
           making
           the
           first
           term
           to
           cease
           upon
           this
           Contingency
           ,
           and
           limitting
           a
           new
           one
           to
           Charles
           )
           and
           therefore
           shall
           be
           taken
           to
           be
           good
           this
           way
           .
        
         
           4.
           
           
           That
           the
           meanness
           of
           a
           Term
           for
           years
           or
           Chattel
           Interest
           ,
           is
           not
           to
           be
           regarded
           in
           Limitations
           of
           it
           .
           —
           It
           was
           at
           first
           disputed
           ,
           whether
           it
           might
           be
           limited
           over
           ,
           after
           a
           Life
           ,
           and
           some
           opinions
           against
           it
           :
           but
           that
           afterwards
           obtained
           ;
           and
           though
           the
           Judges
           would
           not
           allow
           a
           Limitation
           of
           it
           over
           after
           a
           dying
           without
           Issue
           ;
           but
           he
           saw
           no
           Reason
           why
           it
           might
           not
           be
           allowed
           after
           a
           dying
           without
           Issue
           in
           such
           a
           ones
           Life
           ;
           for
           that
           is
           but
           equal
           to
           a
           Limitation
           after
           a
           Life
           .
        
         
           Then
           the
           Lord
           Chancellor
           seeks
           to
           evade
           the
           Case
           of
           Child
           and
           Baylie
           ,
           
           by
           making
           several
           distinctions
           between
           that
           and
           the
           Case
           in
           question
           ,
           which
           it's
           plain
           that
           he
           himself
           look'd
           upon
           but
           as
           frivolous
           ,
           and
           saw
           there
           was
           no
           real
           difference
           between
           them
           ;
           and
           therefore
           to
           fortifie
           his
           own
           Resolution
           ,
           he
           is
           driven
           at
           last
           in
           plain
           downright
           terms
           to
           deny
           it
           to
           be
           Law
           ,
           calling
           it
           a
           single
           Resolution
           ,
           that
           never
           had
           any
           like
           it
           before
           or
           since
           .
        
         
           And
           he
           opposes
           to
           this
           Resolution
           in
           Child
           and
           
           Baylie's
           Case
           ,
           two
           other
           Cases
           ;
           the
           one
           of
           Heath
           and
           Cotton
           ,
           (
           which
           is
           nothing
           to
           the
           purpose
           ,
           there
           being
           no
           Limitation
           after
           a
           dying
           without
           Issue
           ,
           but
           only
           after
           a
           Death
           )
           the
           other
           of
           Wood
           and
           Sanders
           ;
           
           where
           a
           Term
           is
           limited
           to
           the
           Father
           for
           his
           Life
           ;
           then
           to
           the
           Mother
           for
           hers
           ;
           then
           if
           John
           survive
           his
           Father
           and
           Mother
           ,
           to
           him
           ;
           and
           if
           he
           die
           in
           their
           Lives
           ,
           and
           leave
           Issue
           ,
           to
           his
           Issue
           ;
           if
           he
           die
           without
           Issue
           in
           their
           Lives
           time
           ,
           then
           to
           Edward
           his
           Brother
           ;
           he
           died
           in
           their
           Lives
           time
           without
           Issue
           ,
           and
           holdeth
           that
           the
           Limitation
           to
           Edward
           was
           good
           .
        
         
           Nevertheless
           the
           Lord
           Chancellor
           made
           such
           a
           Decree
           ,
           That
           Charles
           should
           hold
           the
           Land
           during
           the
           residue
           of
           the
           term
           ;
           urging
           further
           for
           his
           so
           doing
           ,
           that
           it
           was
           the
           Will
           of
           
             Hen.
             Frederick
          
           ,
           Father
           of
           the
           Plaintiff
           and
           Defendant
           ,
           who
           was
           owner
           of
           the
           Estate
           ;
           and
           therefore
           that
           it
           was
           equitable
           and
           just
           to
           decree
           that
           it
           should
           go
           accordingly
           ;
           not
           allowing
           that
           mens
           Wills
           and
           Intentions
           are
           to
           be
           bounded
           by
           the
           Rules
           of
           Law
           ,
           and
           no
           farther
           to
           prevail
           ,
           than
           the
           Methods
           and
           Rules
           of
           Law
           warrant
           them
           .
        
         
           There
           being
           afterwards
           a
           Bill
           of
           Review
           brought
           upon
           this
           Decree
           ,
           before
           the
           now
           Lord
           Keeper
           ;
           and
           his
           Lordship
           finding
           the
           said
           Decree
           grounded
           upon
           great
           Mistakes
           ,
           and
           likely
           to
           be
           a
           ground
           it self
           of
           great
           Inconveniency
           ,
           did
           reverse
           the
           said
           Decree
           ,
           as
           being
           erroneous
           ,
           and
           against
           Law
           ,
           and
           dismissed
           the
           said
           Charles
           Howard's
           Bill
           .
        
         
           Whereupon
           the
           Appeal
           is
           now
           brought
           in
           the
           Lords
           House
           .
        
      
    
     
       
         Notes, typically marginal, from the original text
         
           Notes for div A43190-e10
           
             3.
             
             Note
             ,
             the
             Lord
             Chancellor
             (
             finding
             himself
             pincht
             with
             this
             Reason
             ,
             in
             his
             Argument
             indeavours
             to
             answer
             it
             by
             saying
             ,
             he
             would
             stop
             any
             where
             when
             he
             should
             find
             an
             Inconvenience
             by
             allowing
             such
             a
             Limitation
             ,
             which
             is
             a
             poor
             Evasion
             ,
             and
             the
             Judges
             conceived
             would
             be
             too
             late
             when
             it
             should
             have
             gained
             the
             Countenance
             of
             such
             a
             solemn
             Precedent
             and
             Resolution
             ,
             and
             conceived
             it
             more
             agreeable
             to
             the
             Prudence
             and
             Policy
             of
             the
             Law
             ,
             to
             prevent
             such
             Inconveniences
             when
             foreseen
             ,
             than
             to
             distinguish
             ones
             self
             out
             of
             them
             ,
             or
             retract
             opinions
             by
             a
             (
             
               non
               putarem
            
             .
             )
          
           
             1.
             
             Note
             this
             is
             true
             ,
             but
             it
             doth
             not
             follow
             that
             he
             may
             dispose
             them
             contrary
             to
             the
             Rule
             of
             Law.
             
          
           
             2.
             
             Note
             this
             hath
             no
             weight
             ,
             for
             many
             words
             are
             oft
             inserted
             in
             Settlements
             that
             are
             idle
             ;
             and
             operate
             nothing
             ,
             and
             these
             are
             not
             the
             only
             words
             in
             this
             that
             are
             idle
             ,
             for
             the
             Lord
             Chancellor
             allows
             here
             ,
             that
             the
             Limitation
             to
             Edward
             and
             all
             after
             him
             are
             void
             .
          
           
             3.
             
             This
             is
             so
             weak
             a
             Reason
             ,
             that
             it
             requires
             no
             answer
             .
          
           
             4.
             
             This
             answered
             in
             the
             Judges
             third
             Reason
             supr
             .
          
           
             Note
             ,
             this
             Case
             of
             Child
             and
             Bayly
             was
             adjudged
             by
             all
             the
             Judges
             of
             England
             ,
             First
             in
             the
             King's
             Bench
             ,
             and
             then
             in
             the
             Exchequer
             Chamber
             ,
             and
             hath
             been
             approved
             and
             cited
             by
             many
             Judges
             in
             many
             Cases
             since
             ,
             and
             made
             the
             ground
             of
             several
             Judgments
             ,
             and
             never
             denied
             for
             Law
             ,
             as
             in
             Love
             and
             Windham
             ,
             and
             Grigg
             and
             Hopkins
             ,
             and
             other
             Cases
             ,
             till
             now
             by
             the
             Lord
             Chancellor
             ,
             being
             thus
             hard
             put
             to
             it
             to
             maintain
             this
             opinion
             of
             his
             .
          
           
             Note
             ,
             this
             touches
             not
             this
             Case
             of
             the
             Duke
             of
             Norfolk
             ,
             for
             there
             John
             never
             had
             any
             Limitation
             took
             effect
             at
             all
             ,
             for
             it
             was
             to
             commence
             upon
             condition
             ,
             which
             never
             happened
             ;
             so
             it
             was
             all
             one
             ,
             as
             if
             there
             had
             been
             no
             Limitation
             at
             all
             .
          
        
      
    
  

