and Equity ought to judge it the same Way, unless Fraud were proved to be used in the procuring of the Execution of these Deeds. That the Reason why a Mortgage even in Fee, is not a Revocation, is because a Mortgage doth carry upon the face of it a Defeasance; 'tis not reckoned an Inheritance to the Heir of the Mortgagee, but shall be Personal Estate, and Assets to pay the Mortgagee's Debts. This Deed was revocable by an after Will; which shews the Party to have no Regard for any former Will: Nor is there any Reference to the Will then in Being. If a Marriage had happened, 'twould be agreed to have been a Revocation; and if so, when was the Will revoked by that Act? By the Deed, or by the Marriage? Then it was said that it certainly would have been revoked by the Deed; and consequently ought to be construed a Revocation, tho' no Marriage did ensue. Revocations are the same in Equity as at Law; and so it was held in the Case of the Earls of Bath and [157] Mountague. The Statute of Frauds never was thought to extend to such Revocations as these. Tho' Earl Edward's Intentions were once to support the Honour with the Estate; yet it was always in his Power to alter it. The Lease and Release passed the Equity of Redemption; and consequently 'tis the same now between the Appellant and Respondents, as if there had been no Mortgage in the Case.
Decree affirmed.—'Twas further urged, That a Will is but an imperfect Conveyance, inchoate only, and ambulatory (as the Books term it) till the Death of the Party; and another Will may revoke it: And with greater reason may a Deed, which alters the Estate, and shews a Change of the Intention of the Person who was Owner of it. There's no need of a Consideration to warrant the Revocation of a Will; there needs no Reason to be given for it; 'tis only the Mind of the Party which both makes and revokes the Will. A Will is only the Signification of a Man's Purpose, how his Estate shall go after his Death: And tho' it be solemnly made in Writing, signed, published and attested; yet if he do any intermediate Act, whereby it must be necessarily inferred, that such Purpose and Intention of his did not continue, the Consequent must be, that what was done before, as to such Will, is totally defeated; and unless it be set up anew by a Republication, 'tis as no Will. The Case of Mountague and Jeffryes, 1Roll's Abridg. 615. and Moore 429. proves this. If Conveyance at Law shews an Intent different from the Will as to Lands, 'twill be a Revocation, tho' such Conveyance be not perfect to all Purposes. Hodgkinson versus Wood, Cro. Car. 23. 'Tis a Revocation, tho' the Owner should be in again, as of his old Reversion. The Case of Lestrange and Temple 14 Car. 2. reported in Sid. 90. 1 Keble 357. is stronger; but this is stronger yet: Because 'tis not to the old Use, but limited in a different Manner. 'Tis a qualified Fee, and to be determined upon the Qualifications taking effect, and so cannot be the old Estate. And if it were, yet 'tis a Revocation; and there's no Circumstance in the Case, that can direct a Court of Equity to differ from the Law. And therefore it was prayed, that the Decree of Dismission might be affirmed; and it was affirmed.
[158] John Fox Gen',—Plaintiff; v. Simon Harcourt Arm',—Defendant [1693].
Clerk of the Peace, his Office, by whom appointed, and removed. 1 Show. 426, 506, 516. 4 Mod. 167. See Carth. 426. Saunders v. Owen.—Writ of Error on a Judgment in B. R. The Case was upon a special Verdict, in an Action of the Case upon an Indebitatus Assumpsit for Monies received to the Plaintiff's Use, brought there by Harcourt versus Fox, which Verdict finds the 37 H. 8. cap. 1. intitled, a Bill for Custos Rotulorum and Clerkship of the Peace. Then they find the 1 W. & Ma. intitled, An Act for enabling Lords Commissioners for the Great Seal to execute the Office of Lord Chancellor or Lord Keeper, and several Clauses therein concerning this Matter. Then they find that John Earl
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