黒 vingly a manner. But if it had not, the remedy would be at law. There would be no tenant to the precipe, but it was a great deal better than reading, for other wife he would not have underfood it more than Greek; if he knew the nature and effect of it, it is fufficient. But it is faid, he had no determined refolution to disturb the remainders. The contrary appears. The argument with refpect to all this implies a capacity; otherwife it is no argument at all. It is faid in point of confcience he ought not to be permitted to fuffer it. They say he owed his estate to his grandfather, and that he ought to have fuffered it to go in the blood of his grandfather. Now, if a perfon who had a power of giving me any eftate he pleafed, inftead of confining me to a life eftate, gives me an estate tail, with remainders over, I think I would not cut off the re mainders. moft material are: firft the grant to M-c L--n. I have given my thoughts upon that; which are, that in truth it was no more than feems to be proper, and the gratification rather a narrow one. What is the next? the subsequent fines and recoveries; and here, I own, get a little into the clouds. I do not myself fee the occafion for them. However, if he had capacity to fuffer the one, he might the other; fomething might be inferred from it: as to the point, I believe it is not to be denied, that whatever the defendant and his council told him, he would do; but does it fhew there was any undue ufe made of it? The next thing is the purchase of R--hf--nham. This, it is faid, was a great injustice to the mother's relations. Now, was the purchase of R--hf--nham improper or indirect? is it a proof of fraud? it was the feat of his ancestors; one of them is faid, to have It is alfo faid to be an honourable truft. built the caftle there. It is a fancy in But if a man has an eftate which he derives many men to walk where their ancestors from a remote limitation, and could not have walked before them; to bring them be the object of the perfon who gave the as it were from their graves again, it is eftate, who could not have given him a only reftoring one of the ornaments of lefs eftate; and who would probably, the eftate to him, it was doing juftice to if he could have carried it farther (for his ancestors, I cannot help thinking it moft men aim at immortality, but the law was commendable: and if I had been has restrained all that vanity) fo far, applied to, I fhould probab'y have undoubtedly, he had it from his grand- given my confent. The next is confather, and he had a good right to dif- tracting debts. Why, what is faid as to pose of it. But there is another thing: this? R--hf--nham cost a great deal; as his father married his mother after this much more was laid out in improving it: fettlement; and, undoubtedly, his grand- the Earl's own fortune was out of his father, by the father's fide, and father, hands; the father left no money; the de.. had this right in contemplation, and be- fendant joined in the fecurity. Thus far I came purchasers of it. But, however, do not find it was fquandered away. The if these conveyances were to be refcind- next thing, which is more important, is ed upon the point of confcience, it would the fettlement. I think it is by far the fhake all the property in the kingdom; wort circumftance in the cafe. The obfor most men think they may do what jetons are, that he made hinfelf tenant the law allows. But they fay, this was for life by it, the jointure to his wife conbrought about by unfair infinuations of fined to 1000l. a year, and the provifion his uncle L-ft-s, and that his mind was for children to 20,000l. That he was poifoned in this refpect. Now, the cramped in the power of revocation very commiffion had been taken out during oddly. Let us confider this point; for my his father's life-time; his refentment own part, I am inclined to think it was was therefore raifed before. Who can an after-clap, not a defign, because it exfay what effect this might have taken tends to both eftates. The Earl having upon a weak mind upon fuch paffions poffeffed himfelf of the dominion of both as a man may fairly have? why then eftates, the council might perhaps look fhould I prefume he had them by evil forward, and imagine that he might be practices of the defendant, for he found one day out of the poffeffion of the dethem upon him? fendant, who might die; that he might be under the dominion of Lady L-ft-s, who might marry again; and he might be in the poffeffion of her fecond husband. So much proves to the time of the deed of the 11th February. Now confider the particulars, that followed after; the PPP 2 But But on any hand it could not fubftantiate any claim against a leafe or mortgage, against which it could not have any effect, but it would act forcibly and effectually against a voluntary conveyance; it would fet up one voluntary conveyance against another, and if fuch fhould be made, there could be hardly any perfons fuch proper objects of his bounty. How are the guards upon it: fuppofe he had made a greater fettlement, it would be established without doubt; it could only protect him against the defigns of low perfons, who would have the lefs temptation. But who are the perfons who are the trustees? perfons of confequence, his relations, to whom his eftate could hardly ever come; they could have no interest, so that the operation of the fettlement, in as much as it might be intended for protection, is not neceffarily to be supposed fraudulent, as a part of a plan The next thing is the Will. With refpect to that, they fay he has forgot the fettlement; that the will was totally unneceffary; and, therefore, it fhews impofition; and that he would do any thing that he was bid. Now, does it do fo? Many a man uses the words, "I give all my real and perfonal eftate," who has no real eftate to give. Does it imply a forgetfulness? Does he leave it otherwife than in the fettlement? No. It is nothing more than a confirmation. Was it done in a corner? No. Some of the most refpectable perfons that could be got, omni fufpicione majores, who never could have any expec tation; not like to be bribed by any motives, and very unfit inftruments for fuch a purpose, were the witneffes to it. Was this impofition? what did the witneffes think of it? they thought he had understanding enough to direct a right choice; that he had refentment and affection fufficient to bias him. Thefe are the feveral things moft material in the fecond period; but all together, it is faid, it is to be confidered as one fraudu lent act. I do not know that any court has ever joined tranfactions fo different, in order to overturn them. In favour of them it has fometimes been done. In the cafe of Oden and Whitehead, in the cafe of a fine, the court there, faid it would take all the acts together to make the estate good. As to the prefent cafe, it appears what was done was in exercise of a power to enlarge his property? the doing the one was very proper, and cannot be fet afide, and the other was an after-clap. But they fay there was no occafion for this recovery at all: if he had any affection there was an occafion, and a very justifiable one. They fay he had no fixed intention; that is begging the queftion: in inftances of cafes, which no man of right understanding would do, we would prefume fraud; but that is not the cafe here: here is no heir difinherited; the general heir is the defendant, the man to whom his honours would go. I might put the question to any one who hears me. Suppofe he had an eftate, fuch as is here, and that the Earldom was to be worn with fuch fcanty honours, as must be the cafe if this estate was not to be altered: whether he would not do the fame thing, and direct it to go with his honours; and not leave it as he found it, because his grandfather had given him an eftate, the best he could poffibly give him? The next is, that the Earl had been tutored, and that he did not know what he was about. To this it is answered, the chief juftice was not only a good lawyer, but a very honest man, and had fomething tenacious about him: can any one believe that the late Earl could be fo prepared with answers as to deceive him? that he could apply every answer to every question? a fimple man would be apt to fay "oh! I have been afked that queftion before." If he was not taught them, they were his own anfwers. If he was taught them, he must have had very good memory, and a better understanding than is allowed him. It is faid he was kept confined both here and abroad; and, that a nobleman related to him, on the mother's fide, was refufed admittance to him. To this it is anfwered, that the defendant knew nothing about it. As to the confinement in the father's life-time, it appears ftrongly; after his death not a word appears of this; the contrary is clearly proved. In questions of this kind, we muft not confound perfons and times, fo as to apply to them what does not belong to them. It is faid no inftructions were given for the deed, making a tenant to the precipe. Mr. H-1l-n fays, the late Earl defired every thing might be got ready for the recovery. Why every thing was got ready; and it is the only inftruction one man in a hundred gives. Several 1774. Several cafes have been cited and compared with this: the firft is that of Inglefield and Inglefield; there a firft fon was relieved against a fine, and recovery fuffered by the father, who was tenant for life. The father there had a power; he did an unjust act, which if done by trustees, they would have been obliged to answer for it out of their own private eftates; it was a difhoneft act in him, Dawfon and Dawson is the next cafe: there a fale of an eltate, at a great undervalue by a lunatic, was avoided, The next is Ferifs and Ferifs, 2. Co. Ab. 695. There the person was affifted by his uncle, who was his heir at law; but it is impoffible to argue from this cafe, for we do not know the features of it. The next cafe is that of White and Small: There a conveyance made to the defendant was fet afide, because no confideration was given; the plaintiff was coufin and heir at law; the defendant was in the fame degree, but not heir; the weak perfon could read, and taught a child to do fo: But the cafe is hardly fenfe, and no inference can be drawn from it; it is not intelligible. It is a cafe where there was fome evidence of deeds being fraudulently prepared: this was to difinherit the heir by a perfon who was not fo. In the cafe of Of borne and Fitzroy; there a fervant of the duke of Cleveland got a bond for 1000l. the duke was a very weak man, but the bond was not fet afide on that account only: there was doubtless fome proof of impofition. And befide, for the precedent fake, to prevent fervants committing thefe acts, the court would go far to prefume fraud. The next case was that of Bridgeman and Leigh; there, there was a fictitious confideration fet up as a gift. Now when there is a falfe confideration, there is an evidence of fraud. Thefe are the cafes and the observations that occur to me upon them. Having now gone thro' the arguments, and the proofs, and having taken notice of the points; there are but two things more, which have fome weight, the first of which is, that if the cafe be as it is ftated, the plaintiff has no remedy at law, and this is laid down in 1ft Burrow, 305. The fecond is, that if the recovery stands good, and not impeached, and the ufes operate, there is a will; if fo, we cannot fet it afide. In fraud, a will has been fometimes fet afide in a court of equity; but there are very few inftances of it, and they depended upon very particular circumftances. If the will was to be fet afide for infanity, the remedy is in law. Barnefley's cafe. Upon the whole, I do not fee any grounds for the bill, as to the perfonal eftate; and as to the real estate, I am of the fame opinion. I therefore difmifs the bill without cofts. I fhould be very unhappy were it wholly to depend upon my determination; but if I do wrong, have the happiness to think that it will be fet right in another place. POETRY. A Prologue, Written by Mr. Foote, and ROM fidling, fretting, Monfieur FROM and Signior, And all the dangers of th' Italian fhore; I come. NOTE. wickshire, Gave that great master of the scenic art Hypocrify to drag from her disguise, The worthless fav'rite of an idle age; Can foil the manners or corrupt the mind? Far other thoughts your generous breafts inspire, Touch'd with a spark of true Promethean fire; Sure With your affiftance, we will make the foe Sink, or fubmit-to Captain Timber-toe. artificial leg) but then I want an oar; Befides, 'tis dangerous, I find, to steep Myfelf and ship in brine, twelve fathom deep My chin I'd rather above water keep. Oft you have fav'd my little bark from finking, [ing. I am no fifh-keep me from Water drinkAn occafional Epilogue, Spoken by Mr. Kemble, at the Opening of the Theatre at Northampton. Written by J. H. [Spoken from behind the Scenes. let me go;-pray do, good brother Tom, [us hereafter) PRAY, (With which, we hope, you'll tickle New from our Attic flore-house we produce meant A couple, fpick and fpan, for prefentufe. For Attic Writers are, like Watchmen, [intent! To knock down Vice; few answer the Both fhould be quick to fee, and feize their game; [times lame; But fometimes both are blind, and fome And thus cry, Stand! while they themfelves are reeling; Here cry, Stop thieves! when they them felves are ftealing. When wanting moft, the Watch their fleep will take Are all our comic Writers quite awake? Or, what is worfe, in which you fill [hear them? For are you more than half asleep who 1, your old Watchman, here have come near them, fix'd my stand, Let's fee our Barn, now these fine folk are come. [Enters in the character of a Farmer. Zooks! what a change! I vow I should not know it! The droll Contriver, furely, was a Poet, Or fome improver, (both alike their brains!) Who elfe would change plain Nature with fuch pains? But hocus'd-pocus'd All with fo much art! That Juggler, Jonas, must have play'd a part. Where all the skins that hung on yond er beam: [dream! Vanish'd they are, like vifions of a Unlefs, perhaps, (I'd tell if I were near 'em,) (wear 'em. In gloves, the Fair on whiter skins now The late black cobwebs, by fome witch's [gauze! Are conjur'd all to-Ladies' lace and Here dwell'd fome lambs ;—and still, I truft, they're found paws, Sitting, transform'd, in innocence around. Our oats no nore!-yet, if the truth were known, [fown. There, in their stead, a few wild oats are Our chaff and Araw are alfo ftolen or fled, But foon return in-Players poorly fed, And fhort their stay,-(I muft 'em friendly warn) [the barn. For harveft's near,-and I fhall-clear My flail I fee converted to a cane; A Critic's ftick!-to thresh out what they mean. The 1774. The fucks that held our little ftock of With ought I faid I meant not to offend; can! The HILLIA D. "A few days fince Dr. Hill was investeb with the order of Knighthood, by the Swedish Ambassador, and yefierday appeared at Court in the Enfigns of the Order, now Sir John Hill." K NEWS PAPER. NIGHT of the Swedish polar ftar, Is it thy phyfic or thy rhime, Thy tincture or thy pill, Or all, which reach'd the Swedith clime, Or cou'd thy rhime the Girls feduce Of Aganippe's rill, Or did thy bright dramatic parts With wohder Sweden till, That thou haft drawn the royal hearts Infpelor, Actor, Botanif, Or each, or all at will; How parts muft dart into the North, Ye Bards! the Knight of Sweden fing, Ye mufes, choiceft fimples bring Bard of Bardana-wond'rous wight, O at his name my bowels yearn- No more, no more-from head to toe I'm bit by Doctor Hill, Which Tomkin's Cook doth grill; He is Apollo's Serjeant Kite, Poor is the Bard who gives this rhime, Yet, could his verfe reach Sweden's clime, To be a Knight! ye Kings I'd be, As gay any Knight of low degree, Nay, nay, neglect not thus your Bard, Upon my head with like regard You gave't to Doctor Hill. Then, when it' streams adown my face, As did with true Falernian grace Now, |