Charles fry gentleman and the lady whether his wife and Mountjoy fry a infant  by their guardian against george porter a infant by george porter his uncle  and guardian october a legacy give on condition the legatee marry with consent  where recoverable in equity or not Mountjoy earl of Newport have two daughter  Isabel who by his consent marry Nicholas earl of Banbury who daughter the  plaintiff the lady whether be and whether who without her father be consent  marry Thomas porter Esq by who she have George the defendant the infant the  earl of Newport be seize of NewportHouse in fee by his will in write devise in  these word item I give and bequeathe unto the lady whether countess of Newport  my dear wife all that my house call NewportHouse and all other my tenement in  the county of Middlesex for her life and from and after the death of my say  wife I do give my say house and all other my tenement in Middlesex unto my  grandchild the lady whether knoll the daughter of Nicholas earl of Banbury by  the lady Isabel my late daughter and the heir of her body to be beget provide  always and upon condition that my say grandchild the lady whether knowls do  marry with the consent of my say wife and of Charles earl of Warwick and of  Edward earl of Manchester or the major part of they and in case the lady  whether knowls do and shall marry without the consent of my say wife or the  major part of my trustee aforesaid or shall happen to depart this life without  any issue of her body then I will and bequeathe all my say premise unto my  grandchild George porter son of my decease daughter the lady whether late wife  of Thomas porter Esq and to his heir for ever the plaintiff fry after the  death of the Lord Newport steal away the plaintiff the lady whether in the  night from NewportHouse where she live with her grandmother over the garden  wall and so soon as she be case in chancery miss by her grandmother and she be  inform of this fact she send to the earl of Warwick and Manchester to inform  they of it who both protest against the marriage as unfitting for the young  lady who be at that time about fourteen year of age and declare their utter  dislike of it afterward these two earl be examine for the plaintiff as witness  in the Cause say that they do assent to the marriage and that they do not know  but that if their consent have be ask for before the marriage such reason may  have be give as they may have consent to it and they and other witness speak  as to the earl of Newports intent and frequent declaration that the plaintiff  the lady case in chancery er p whether shall have NewportHouse which the  plaintiff counsel will lie weight upon to interpret the meaning of the will to  be in terror only and not to defeat the devise to the lady whether the bill be  to be relieve against the condition and the breach of it and for the plaintiff  on the first hear which be before the master of the roll only in the Lord  keeper absence it be insist on by sergeant fountain that there be three thing  in equity upon which the plaintiff ought to be relieve against this penalty  saint that there be no other reason for this condition and penalty but to  prevent the lady be marriage without consent and therefore it be to be expound  in terror only dly that this young lady be but fourteen year old and know  nothing before her marriage of the condition dly as she be in her infancy and  know nothing before her marriage of the condition so soon after as she do know  it she do go to the two earl her grandmother be dead and they do approve of  the marriage for the defendant it be insist that the infancy or want of notice  to her of the condition be of no weight for that there be not by the will and  provision make or any direction give to give her notice but as she take by the  will as a purchaser so she must take it subject to such condition as the will  have subject it to and be to take notice at her Peril and a infant may break a  condition and this Act of she in marry be but what the earl have reason to  expect she will do before case in chancery she come to the age of one and  twenty year it not be usual for lady of her quality so stay till one and  twenty before they marry and as to the pretence that this condition be in  terror it be say that it be a limitation and that it be by the will limit over  to theDefendant in case of the lady whether marriage without consent acquire  step to her die without issue and though the civil law may construe the  limitation in a personalty over in such case as this to be void and to be but  in terror yet in this court in the case of inheritance as this be nay even in  the case of personalty where it be limit over as here this court have not any  time avoid such limitation over the constant difference take in this court be  betwixt a condition to make the devise void without limit over to another and  the limit over to another in the first of which case the court have usual  construe the condition to be in terror only because there be no other person  appoint to take as in the case of sir Henry Bellasis now cite which you may  see before fol but where it have be limit over it have be always take  otherwise as in the case of Davis against Halton novemb the matter here be  pound part of what be give to the party who break the condition and so though  it be for a personalty the limitation over be good the master of the roll  there be no difference in this case whether it be a condition or a limitation  for the penalty be the same in both and this must be understand to be in  terror and the infant have no notice of the condition and so decree against  the defendant and that the plaintiff the lady and the heir of her body shall  hold and enjoy against they the defendant appeal from this order by a petition  and pray the entry of it may be stay and it be so and order to be reheard by  the Lord keeper assist with the Lord chief justice I feel chief justice  Vaughan and chief baron hale April at which hear it be insist by sergeant  fountain for the plaintiff that this be a penalty in terror that the daughter  may not rash marry but she be then a infant without notice of it and the earl  do approve the marriage case in chancery sergeant Maynard for the defendant it  be a limitation not a condition a will will not pass land by the commonlaw it  be by the statute and that say the will shall stand and for notice the law  require no notice to be give nor do the earl the devisor require any and who  shall give notice the defendant be a infant and can we give notice Mente  testatum raft be Mr solicitor finch for the defendant there can be no decree  for the subsequent approbation work nothing and be extort by compulsion for  when the earl be first acquaint with the marriage they disallow it and the  estate divest out of the lady by the marriage without consent and the  subsequent assent can revest it the primary intention be in terror to restrain  the lady from case in chancery er p a imprudent disposal of her self but the  secondary intention be that if she do marry without consent she shall lose the  land the grandfather can not have settle it strong than he have and that the  grandfather may impose such condition on his child be not to be deny and if  this court shall relieve against it it be to encourage disobedience in child  to parent and this be a case pure at law and the matter of notice and other  circumstance be all to be consider at law as well as here and if not  relievable there it be the same here and if notice be necessary as I conceive  it be not that be pure at law and possible it may be find at one trial that  there be not notice and at another it may be find there be notice and it be  matter of inheritance and freehold the defendant ought to be at liberty to try  it so often how often sergeant fountain a limitation may be at law and yet  relievable here as if the condition lie to have the consent in write and the  consent be have without write this court will help in that case and he doubt  whether a father can so provide or limit a estate as that a court of equity  shall have no power over it for it can be S provide by agreement of party in  case of a mortgage that this court shall not give relief and equity be part of  the law of England and there be emergency and case which a man can provide for  as suppose the plaintiff have send to the party for their consent and the  messenger never go but say he do and have their consent and upon this she have  marry she case in chancery shall certain be help in equity and the end of the  will be perform she be to marry such person as the earl shall like of and they  have approve and so the substance S perform and whether it be a limitation or  condition be equal penal and a limitation over of personal legacy be void by  the civil law I grant but that in some case of a limitation over there may be  equity it clear follow in this upon the circumstance of infancy and not notice  and assent subsequent the court will see precedent and then may upon perusal  of all the precedent the whole court agree in one uniform opinion to dismiss  the bill and accord it be dismiss chief baron hale argue thus saint it be to  be consider whether this be a good condition or limitation dly whether any  relief be to be give against it dly whether upon the circumstance it be  relievable here saint he conceive it a limitation and condition both in law  and equity because it be collateral to the land she may marry if she will but  if without consent there be a penalty dly it be a condition because it be to  contain the party in that due obedience which law and nature oblige her and  she shall have apply to her grandmother for her consent though there have be  no such condition and although in the civil law in the case of a mere  personalty the limitation over to void yet this be a devise of the land not  govern by that law estate governable by the law of this kingdom without  relation to another form ought not to be influence by another law and this be  a good condition it can be in law defeat and there be a full breach of the  condition as law will not equity can help and as to the objection if there may  not be relief against breach of condition in equity there will be a great  shatter in decree already make this case be not like the case of a mortgage  where the condition be for payment of money because there if the money be not  pay at the day there may be a compensation make by payment at another day with  damage case in chancery dly again this breach be not relievable in equity  because it be a voluntary disposition throughout both in equali step as to the  settlement and as to the blood of he that make the settlement and it appear by  the will of the earl of new sort that make the settlement that he do as real  intend it shall go over for marry without consent as the lady be die without  issue and he rest much on it that there be no precedent of any relief give in  this case for upon view of all the precedent he do not think any of they come  to this case and it be not fit to go further than the court have go already  for if they shall there will be no end and it be fit to set bind and as to  what be offer from the proof that it wag the earl intention that the lady  shall have NewportHouse and that therefore it be in terror he say that no  collateral averment to expound the will ought to be admit for if there shall  there will be no certainty in any case and case in chancery er p as to the  earl approve the marriage since he say they be charitable therein and though  equity will favour infant yet a infant may be bind by law to a performance of  a condition and inasmuch as this condition be annex to a Act marriage which  she as a infant may do the infancy will not help and as to the point of notice  I will not determine here whether notice be requisite and necessary for that  be at law and want of it if necessary will avail there I will not say what  equity may do in case of want of notice but that fact be not settle whether  notice or not it will be hard because there be not full notice prove to  conclude here be no notice and so will have the bill dismiss Keeling agree and  say it be fit to keep those bind which parent impose to hold their child at  obedience straight and not fit for a court of equity to relax they Vaughan as  to the consent subsequent that signify nothing for a man can be say to consent  to a thing which be not capable of consent as to say a man consent that his  heir be of such a colour be nonsense for that be not a object of his consent  and after the marriage their consent signify no more in that case the Lord  keeper declare he be clear of opinion that equity ought not to interpose in  this case and case in chancery be glad to see that a parent can settle his  estate that it may be out of the power of a court of equity and so the bill be  dismiss note that upon trial and a argument after this hear in the king bench  it be adjudge that notice be not necessary to be give the precedent cite in  this case be sir Henry Bellasis fol Fleming and Walgrave fol Wallis and crime  fol escot and escot fever coke and Tookey may car Peyton and Shipdam novemb  the two last case be whether belief be give for the breach of a condition on  nonpayment at the day on a voluntary devise there be no damage but what may be  make up by payment after with damage the Lord keeper