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were of opinion, that no regard ought to be had to the said paper; and therefore it was ordered and decreed, that the appellant should, at the expiration of the lease, leave upon the premises 315 tuns and five hundred of alum, ready made and quite finished, at 112 lb. to the 100 weight; together with such other stock of alum made, coals, kilp, mine burnt and unburnt, fats, furnaces, coppers, coolers, lead, iron, and other utensils, stores, implements, and things, as were mentioned in the schedule to the said lease annexed; and if any of them were not remaining in specie, that he should leave others as good, in the room thereof; and should execute a bill of sale to the respondents according to his covenant in the lease; and that the appellant should, at the expiration of the lease, leave the premises in good order, and deliver quiet and peaceable possession thereof to Mr. George Priswick, named receiver to the infant duke; and should at the same time deliver to him, in specie, the said 315 tuns and one quarter of alum, together with the other things as aforesaid. After pronouncing this decree, and notwithstanding the appellant, by his clerk in court, had joined in a petition to bring the cause on, and attended the hearing thereof in person; he informed the register of the court, and the respondent's solicitor, that he would, and did insist on his privilege as a member of the House of Commons; and thereupon, lest the lease should expire before the appellant could be obliged to perform the covenants, a petition was preferred to the House of Commons, and by an order of that House it was resolved, nemine contradicente, that the appellant had waived his privilege, and should not resume the same.

He therefore appealed from the decree, insisting (J. Willes, W. Lee), that all alum in any storehouse quite finished, was excepted out of the second lease, and reserved to the duke; and that the 315 tuns 500 pounds of alum mentioned in the schedule to be in storehouses, appeared to be alum quite finished, as well from the proofs in the cause as from the adjudication in the decree, whereby the appellant was decreed to deliver that quantity of alum quite finished. That the late duke, at the time of making the second lease, had no other alum quite finished, but the 315 tuns 500 pounds. That it appeared by the evidence in the cause, that these 315 tuns 500 [586] pounds of alum, were, pursuant to the agreement, delivered to the duke or his agents, upon, or very soon after, the making of the second lease; and therefore it could not be the intention of the parties, that the appellant should, at the end of the term, leave more stock upon the premises than he found thereon when he entered. That the covenant to redeliver, at the expiration of the second lease, all alum made, etc. might be very well satisfied, without admitting the construction which the respondents endeavoured to put upon it; for that construction was not only contrary to the plain intention of the parties, but inconsistent with the tenor of the other parts of the lease. That on the 31st of March 1700, which was only six days after the commencement of the second lease, the lessees delivered at the scale to the use of the duke, 975 tuns and a half of alum, which was certified by Ambrose Newton in the words following; viz.

Sandsend, April 11, 1706. These are to certify the most noble the Duke of Buckingham, and his grace's agents, that since the 538 tuns I certified to be weighed, and remaining in the several warehouses in Sandsend, there are 437 tuns and an half more, being in all 975 tuns and a half of alum, resting the 31st day of March last in the several warehouses at Sandsend, of which, as it was weighed, an account was taken by me Ambrose Newton.

And on the back of this certificate, the duke gave an order to the appellant in the following words, viz.

Mr. John Ward, I hereby order you to charge the quantity of six hundred and sixty tuns and one quarter of alum to my account, part of the quantity here mentioned in this certificate, and out of the money arising by the sale of alum in your hands, pay to Mr. William Ward and yourself £10 for every tun according to agreement, and for your so doing, this shall be your discharge. April 30, 1706. Buckingham.

By which certificate and order indorsed thereon, it appeared that the 315 tuns 500 pounds of alum in the storehouses quite finished, which had been received by the lessees upon the first lease, were redelivered. But should it be objected, that this certificate and order were not insisted on by the appellant in his answer, it was true, they were not; because he did not discover the order, till after his answer was put in, nor even till after the commission for the examination of witnesses was executed.

On the other side it was contended (C. Wearg, C. Talbot), that the decree was just, and ought to be affirmed; it being admitted, that the appellant and his partners did,