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was conceived, that this fact, if true, was not a sufficient reason for refusing those leases to be read; since it was evident, they were not in breach of the articles, which were only made to restrain her leasing, reserving two-thirds of the rent, without the consent of Earl Henry, but with an honourable and just intent to preserve the estate in the family; and therefore it was, that the leases were ordered to be sealed up, and remain safe till further order; and that they might be made use of for the end intended, when occasion should require. That the attested abstract of the deed, ought the rather to have been read, to shew the corrupt intentions of the said Mr. Cocks, to make Earl Henry tenant in tail; since it appeared by the depositions of Marmaduke Gibbs, Esq. that Earl Henry was engaged to pay Cocks considerable sums, on security, which entirely depended on his making him tenant in tail. That the chief point insisted upon at the hearing was, [544] that the deed of the 16 Car. I. was equally voluntary with that of the 14th Car. I. and that the first ought to prevail; and though it was urged, that, upon the face of that deed, the sale and settlement of the countess's estates appeared to be the principal consideration of it; yet from the word [heretofore] being used therein, the respondents pretended, that such sale and settlement were not the immediate motives of the deed. But, as the deed was so ancient, and executed by the earl and countess, and their trustees, persons of great quality, integrity, and knowledge in the law; and as the estates recited to be sold were undoubtedly the estates of the countess, and were actually so sold and settled; it was strongly presumable, that at such sale and settlement the earl promised and agreed to settle the estate in the manner mentioned in the said deed of the 16 Car. I. and it would be hard to call upon the appellant at the distance of near 70 years, to prove the particular considerations, and yet deprive him of the benefit of those depositions, which would fully prove the recital of such considerations to be true; more especially, as the witnesses who made the depositions were all dead, and as Earl Henry affirmed and acted under the deed of the 16th Car. I. for thirty years; and enjoyed an estate of £4000 a year, under no other title than what he derived from that deed. That it was also hard upon the appellant, that the deed of the 14th Car. I. having been laid aside and neglected, and at length brought to light by very sinister means, should be allowed to stand in competition with that of the 16th, so solemnly made, upon such valuable considerations, and so publicly owned in the family. And that the respondent could have no reason to complain, since she was advanced in marriage with a Duke, and provided with a jointure of £2000 per ann. on the foot of that settlement, which was made of the countess's estate of Blechingly, and which she parted with to obtain the settlement of the 16th. As to the objection, that by the settlement made on the Duke of Norfolk's marriage with the respondent Lady Mary, the premises in remainder were limited to the duke and his heirs; it was answered, that Earl Henry being only tenant for life by the deed of 16 Car. I. could grant no more than he had; and that there was the less pretence to support the duke's settlement as a purchase, because by the act of parliament, which divorced him from the respondent, the estate so limited to him and his heirs was expressly made void; and in consequence of which act, the respondent Sir John had procured a conveyance of the estate to him and his heirs, to the disherison of the appellant; who was the heir male of the family, and for the support of whose honour it was settled in manner aforesaid.—But this divorce, and the subsequent marriage of the respondents, and also the said conveyance, happened pendente lite, and after publication, and therefore could not be proved in the cause.

On the other side it was contended (T. Powys, N. Hooper, T. Vernon), that the refusal of the depositions was highly proper; as neither the appellant nor [545] respondent, were parties to the suit in which they were taken; and therefore, by the constant rule of evidence, could not be made use of, either for or against the appellant. But in the cause, where the depositions permitted to be read. were taken, the appellant himself was a party, and therefore bound by those depositions. And as to the order by consent, it extended no farther, than to give each party a liberty of making such use of the depositions, as by law they might; but not to prevent either of them, from objecting to such of the depositions, as were not legal evidence; it being expressly provided by the order, that all just exceptions should be saved to either party. That there was no reason, why a court of equity should permit leases to be given in evidence, which were made by the Countess Elizabeth against conscience, and in breach of an express agreement, under hand and seal, to the contrary; and which agreement was not