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of the Cavendish estate as lay in the county of Northumberland, being £3000 per ann. to the use of Duke John for life, remainder to the defendant for life, remainder to their first and other sons in tail male successively, with other remainders over: provided, that the several mortgages and other incumbrances on the premises, should be assigned over in trust to attend the inheritance thereof, and be subservient to the uses thereby limited and declared concerning the same. And it was also agreed, that recoveries should be suffered by Duke John and the defendant of the rest of the Cavendish estate, which were declared to be to such uses as were therein limited touching the same, And, after taking notice of Duke Henry's last will and settlement, it was by the same indenture declared, that he and she to whom the inheritance of the premises should, by virtue of the uses therein contained, belong, should take upon him and her the sirname of Cavendish. That the defendant joined with Duke John in such fine and recoveries, in confidence that she should have the benefit of the several mortgages and incumbrances taken in by him, which affected the Cavendish estate in the county of Northumberland, for protecting her life-estate therein; but, [463] as these mortgages and incumbrances had not been assigned, pursuant to the said agreement, the defendant insisted, that she ought not to be compelled to make any discovery of such incumbrances, or of any other. uses in the deed of January 1693.

This second answer being reported insufficient, the Duchess took exceptions to the report; which being overruled, she put in a third answer, which being likewise reported insufficient, exceptions were taken to this report; and, upon arguing these exceptions before the Lord Keeper, on the 9th of December 1712, his Lordship was pleased to order, that as to the conveyance of the Cavendish estate, the Duchess should answer, whether there were two parts of the conveyance, and who had them; and that she should set forth the same verbatim, or give an attested copy thereof, signed by her, and refer to it; but that the plaintiffs should not make any use of such copy at any trial at law, before the hearing of the cause.

Soon after making this order, the Duchess put in a fourth answer; and thereby admitted there were two parts of the conveyance of the Cavendish estate, but still insisted she was not bound to discover that conveyance; and she also alledged, that she was prevailed on to execute it by fraud and surprise, or unwarily; though she had suggested nothing of this kind by any of her former answers, After putting in this fourth answer, the Duchess applied by petition, to have the exceptions, which had been over-ruled by the order of the 9th of December 1712, re-argued; but, upon hearing counsel on this petition, it was dismissed. And this answer being also reported insufficient and not agreeable to that order, the court upon motion, and after hearing counsel on both sides, granted a sequestration against the Duchess.

But to avoid the effect of this process, the Duchess appealed from the order of the 9th of December 1712, and all the subsequent proceedings; and on her behalf it was insisted (J. Pratt, S. Dodd), that no reason could be assigned for producing the deeds and writings, relating to so great an estate, before the writing, which both upon oath and honour was denied to be the will of Duke John, was proved in any court whatsoever to be his will; and if bare suggestions in bills should prevail against positive denials by answers, many vexatious suits might be brought, and many titles exposed to great danger and hazard. But why particularly was the deed of the Cavendish estate required to be set forth verbatim, or a copy of it to be delivered, when no deed concerning Duke John's estate was ordered to be set forth, or a copy delivered? And, if the pretended writing should not prove to be his will, the respondent Lord Pelham had no manner of right to Duke John's estate, or to any of the deeds or writings relating thereto; and yet, by setting forth the same, or giving copies thereof, both the appellant and the respondent Lady Henrietta Cavendish, his only daughter and heir, might he materially preju-[464]diced. And therefore it was hoped, that so much of the order of the 9th of December 1712, as required the appellant to set forth the deed relating to the Cavendish estate, verbatim, and to give a copy thereof, would be reversed; and that the subsequent orders, and the commission of sequestration issued theron, would be discharged.

On the part of the respondent Lady Henrietta, who was in the same interest with the appellant, it was argued (J. Mountague, P. King), that the other respondents, under pretence of a writing, which was in no court proved to be a will, ought not to have