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that there had been also an execution of this agreement (though a defective one) on the part of Earl Charles, by releasing his power of revocation, which had not its intended effect; an estate tail precedent to the uses revoked, remaining in him, which ought to have been barred, pursuant to the agreement; that Earl Charles having suffered the recovery, and made the charge of £6000, had received the benefit of the agreement; and that the plaintiff's ought to be considered as purchasers under an agreement, and were intitled as such to have the defective execution thereof perfected: accordingly it was decreed, that the defendants Mr. and Mrs. Herbert, and all claiming under them, should make a settlement of the estates pursuant to the agreement; but without prejudice to Earl Charles's creditors, who were to come in before the master and prove their debts.

[148] From this decree, the defendants Mr. and Mrs. Herbert appealed; insisting (E. Northey, N. Lechmere), that the letters on which it was grounded, were not sufficient evidence of the agreement, to warrant the Court in making such a decree. That after the writing of these letters, frequent meetings and consultations were had between the parties, and several deeds, &c. agreed upon and executed by them; and therefore no retrospect ought to be had to the letters, or any parol discourses, which happened prior to the execution of such deeds. That if such dormant letters should be allowed, and the decree affirmed, after an acquiescence of eleven years, without taking any notice of this pretended agreement, or ever requesting Earl Charles to make any settlements in pursuance thereof; it might be made a precedent to shake most of the estates and settlements in England. That the intentions of Earl Charles, in suffering the recovery of 1709, were truly honourable; being to secure the payment of his just debts, and make a provision for the appellant Mrs. Herbert, his only sister and heir at law, and her children; and therefore it was prayed, that the decree might be reversed.

On the other side it was contended (J. Jekyll, S. Mead), that the evidence given of the agreement was the most direct and ample that could be required; besides the actual execution of it by one of the parties, and the partial and incomplete execution by the other. But with respect to the whole matter in question, the appellants had given judgment against themselves; for, if the recovery under which they claimed was good, without any consideration to be had of the agreement, then the present earl had no colour or pretence of right to the estate; and yet the appellants had thought fit to buy him out, who had no right to any thing but by virtue of the agreement: And therefore it was hoped, that in so just and plain a case, where the ancient estate of the family was preserved in the male line, in order to support the honour, and without which the honour could not be supported, the appeal would be dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and the decree therein complained of affirmed. (Jour. vol. 19. p. 668.)

The appellant and the respondent's testator, being respectively captains of ships