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PETERBOROUGH (EARL OF) v. GERMAINE [1702]

III BROWN.

to do so in similar cases, and wherever any fact is proved via voce in the court of Chancery.

[539] After hearing counsel on this writ of error, the following question was put to the Judges: "Whether after conviction upon a trial in the court of King's Bench on an indictment removed from an inferior jurisdiction, the want of specifying the names of the grand jury in the record of the court of King's Bench, be matter of error to reverse the judgment?" When Mr. Justice Gould having delivered the unanimous opinion of the Judges present in the negative, it was thereupon ordered and adjudged, that the judgment given in the court of King's Bench should be affirmed; and that the record should be remitted, etc. (M. S. Jour. sub anno 1786. p. 845.)

EVIDENCE.

Case 1.—Charles Earl of Peterborough,—Appellant; Sir John Germaine, and Another,—Respondents [22d of January 1702].

[Mews' Dig. vi. 665, 792. See London (City) v. Perkins, 3 Bro. C.C. 602.]

[Depositions taken in a former cause, where neither plaintiff nor defendant were parties, cannot be read as evidence, but where either plaintiff or defendant was a party in the former cause, the depositions in that cause may be read against such of them as was a party.—The abstract of a deed is no evidence; and much less, an attested copy of such abstract.]

Viner, vol. 12. p. 113. ca. 47. p. 216. ca. 13.

John Earl of Peterborough, being seised in fee of the manors of Drayton, Islip, Slipton, and Lowick, and of other lands and hereditaments in the county of Northampton; by indenture dated the 31st of March, 19 Jac. I. on his marriage with Elizabeth, daughter and heir of William, Lord Howard of Effingham, settled the said promises, being the estate in question, to the use of himself for life; remainder to Elizabeth his intended wife for life, for her jointure; remainder to the heirs of their two bodies; with other remainders over.

The marriage took effect, and there were issue of it two sons; namely, Henry, afterwards Earl of Peterborough, the father of the respondent Lady Mary; and John, afterwards Lord Viscount Mordaunt, the father of the appellant.

By indenture dated the 14th of November, 9 Car. I. made between Earl John and the Countess Elizabeth his wife of the one part, and the Earl of Bedford and Sir Henry Compton of the other part; in consideration that the countess had joined with the earl in a sale of the manor of Dunnington, whereof he was seised in her right, for payment of the earl's debts, and disincumbering his other estates; and for the performance [540] of certain articles, dated the 31st of May, 8 Car. I. made between the said Earl John and the Earl of Bedford; he the said Earl John covenanted to stand seised of the said manors, lands, and premises, to the use of the Countess Elizabeth for her life; remainder to Earl John, for his life; remainder to Henry, their eldest son and heir apparent, in tail male; remainder to their other sons, in tail male; with other remainders over.

But no fine having been levied by Earl John, for barring the intail created by the first settlement of 31st March, 19 Jac. I.; by indenture dated the 1st of November, 14 Car. I. made between the said Earl John and Countess Elizabeth of the one part, and the said Earl of Bedford and Sir Henry Compton of the other part; reciting the last mentioned deed of the 14th of November, 9 Car. I. and that no fine had then been levied of the said premises for docking the intail, although Earl John had agreed so to do; and reciting also, that he was to have powers to sell the manors of Ringstead and Addington, which were part of the estates limited to the said Countess Elizabeth for her jointure; he the said earl and the countess thereby covenanted to levy a fine on or before the 20th of November then next ensuing, of the said Northamptonshire estate, to the use of the said Countess Elizabeth, for her life; with remainder to the said Earl

1485