case Charles earl OF peterborough appellant sir John germane and another  respondent d of January Mews dig way see London city v Perkins bro c c  deposition take in a former cause where neither plaintiff nor defendant be  party can be read as evidence but where either plaintiff or defendant be a  party in the former cause the deposition in that cause may be read against  such of they as be a party the abstract of a deed be no evidence and much less  a attest copy of such abstract viner vol p can p can John earl of Peterborough  be seize in fee of the manor of Drayton Islip Slipton and Lowick and of other  land and hereditament in the county of Northampton by indenture date the saint  of march James I on his marriage with Elizabeth daughter and heir of William  Lord Howard of Effingham settle the say premise be the estate in question to  the use of himself for life remainder to Elizabeth his intend wife for life  for her jointure remainder to the heir of their two body with other remainder  over the marriage take effect and there be issue of it two son namely Henry  afterward earl of Peterborough the father of the respondent lady mary and John  afterward Lord viscount mordant the father of the appellant by indenture date  the that of November car I make 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 have join with the earl in a  sale of the manor of Dunnington whereof he be seize in her right for payment  of the earl debt and disincumbering his other estate and for the performance  brown of certain article date the saint of may car I make between the say earl  John and the earl of Bedford he the say earl John covenant to stand seize of  the say manor land and premise to the use of the countess Elizabeth for her  life remainder to earl John for his life remainder to Henry their old son and  heir apparent in tail male remainder to their other son in tail male with  other remainder over but no fine have be levy by earl John for bar the entail  create by the first settlement of saint march James I by indenture date the  saint of November car make between the say earl John and countess Elizabeth of  the one part and the say earl of Bedford and sir Henry Compton of the other  part recite the last mention deed of the that of November car I and that no  fine have then be levy of the say premise for docking the entail although earl  John have agree so to do and recite also that he be to have power to sell the  manor of Ringstead and Addington which be part of the estate limit to the say  countess Elizabeth for her jointure he the say earl and the countess thereby  covenant to levy a fine on or before the that of November then rext ensue of  the say Northamptonshire estate to the use of the say countess Elizabeth for  her life with remainder to the say earl brown er p John for his life remainder  to Henry their old son in tail male remainder to John their second son in tail  male with other remainder over and in each of these settlement there be a  power reserve to the earl and countess during their life to grant lease of all  or any part of the premise for twentyone year or three life reserve two part  in three of the full improve yearly rend the estate be thus absolute settle  without any power of revocation it afterward happen that the countess conceive  some displeasure against Henry her old son and in consequence thereof a  attempt be make to change the estate tail limit to he by these two settlement  into a estate for life only and for that purpose by indenture of lease and  release date the d and that of July car I earl John and Elizabeth his countess  in consideration that she have thentofore join with he in the sale of  Dunnington and for other the consideration therein mention limit the premise  in question to the use of the countess Elizabeth for life for her jointure  remainder to earl John for his life remainder to Henry their old son for his  life remainder to his first and other son in tail male with a like remainder  to John their second son for life and his first and other son in tail male  with other remainder over and in this deed a like power of lease be reserve as  in the former settlement together with a power of revocation brown on the that  of June earl John die leave Elizabeth his countess and his say two son Henry  and John survive the countess have possess herself of all the family deed and  write careful conceal the two first settlement from the knowledge of earl  Henry but upon search the record of the court of exchequer it be accidental  discover that the settlement of the that of November car I have be former  plead there from which discovery and also from other information that the  settlement of the that of July car I be not the real and true settlement of  the family but that one or more prior settlement have be make to other use  earl Henry exhibit his bill in chancery against the countess Elizabeth and the  Lord mordant his brother and the present appellant and other proper party for  a discovery of what settlement have be make by his father to which bill the  countess put in a answer and thereby confess that she have the settlement of  the saint of November car and soon afterward produce it and by the proof take  in that cause it appear that the settlement of the that of November car I be  burn the settlement be thus discover no far proceed be have in the cause for  the present but it appear that the countess have by all the settlement a power  of grant lease earl Henry be desirous of come to some agreement with her touch  the exercise of this power that so he may be more complete master of his  estate and enable to dispose of it as occasion shall require accord by article  date the that of February between the countess of the one part and earl Henry  of the other part it be agree that the countess shall by and out of the settle  estate raise the sum of pound and that the same shall be equal divide between  they and the countess thereby also agree that after this pound shall be raise  she will not lease any part of the say estate during the life of earl Henry  without his consent and the earl agree to pay her pound a year for her life  from the time of her receive her moiety of the say pound these article be  establish by a decree of the court of chancery date the that of October car  two upon a bill bring by earl Henry for that purpose and the countess be  thereby enjoin from make any further lease the pound be accord raise and  divide pursuant to the article and earl Henry duly pay the countess the pound  per and during her life but notwithstanding this agreement and decree she  think proper a few day before her death to grant lease of some part of the  premise in question to Andrew Newport Esq for three life in order as it be  suppose to prevent earl Henry from suffer any recovery to the prejudice of his  young brother John brown in November the countess die and soon afterward earl  Henry have discover these lease exhibit his bill of revivor and supplement  against John Lord mordant his brother and also against the present appellant  and the executor of the late countess Elizabeth in order to have the same set  aside as have be make in breach of the aforesaid agreement and on the d of  march car two a order or decree be make in that cause whereby those lease be  set aside and by brown er p a subsequent order they be direct to be seal up  and deposit with the usher of the court of chancery there to remain earl Henry  have thus get rid of the lease execute a feoff to Matthew Johnson and Robert  guy and their heir of the premise in question in order to make they tenant to  the precipe for the purpose of suffer a common recovery and in Hilary term a  recovery be accord suffer by double voucher and the use thereof be declare to  be to confirm several mortgage make by earl Henry to sir John Duncomb Lord  anglesea and other and afterward to earl Henry and his heir the earl have no  other issue than the respondent lady mary who by other settlement be entitle  after his death to the inheritance of the manor of Blechingly in Surrey and he  be desirous that this Surrey estate shall be sell in order to discharge the  encumbrance affect his Northamptonshire estate a act of parliament be pass in  the that of car two whereby the manor of Blechingly be vest in trustee to be  sell and be accord sell to sir Robert Clayton and the estate in  Northamptonshire except Drayton house and park and the advowson of Slipton  Islop and Lowick be vest in the same trustee to the use of earl Henry for life  with remainder to lady mary and her heir for ever in November earl Henry die  without issue male whereupon the lady mary then duchess of Norfolk become  seize in fee of all the settle estate but in Hilary term follow the appellant  exhibit his bill in chancery against her in order to avoid the settlement of  the saint of November car I as have be fraudulent make and keep dormant and to  establish the subsequent one of that July car I to this bill the defendant  plead her title as above state and by her answer insist that the lease by the  countess Elizabeth be make in fraud of the aforesaid agreement and decree and  that Andrew Newport the lessee neither accept of these lease nor ever make any  entry or claim for or in respect thereof and the cause be at issue a order be  make by consent that both side shall be at liberty to make use at the hear of  the deposition in several former cause therein mention save all just exception  on the that of December the cause be hear before the Lord keeper wright when  his lordship be please to allow the defendant plea and dismiss the bill  declare that if the brown plaintiff have any title he have a plain remedy at  law by ejectment and therefore be not entitle to any relief against the  defendant in a court of equity from this decree the plaintiff appeal because  he be not permit to read at the hear the deposition take in one of the say  former cause nor to give in evidence the lease make by countess Elizabeth to  Newport and which be so make with a design only to preserve the estate in the  family accord to the intent of earl John settlement nor true attest copy of  those lease nor a abstract of a deed to one cock a counsel of the countess  Elizabeth whereby the practice to make earl Henry tenant in tail will full  appear and in support of this appeal it be argue a bowyer I Sloane that both  the former cause relate to the settlement in question and be in the nature of  cross cause that they be both hear together and the deposition in one of they  be make use of at the hear of the other that the deposition not permit to be  read at the hear of this cause be take in one of the say former cause and yet  the deposition take in the other of they be permit to be read on the part of  the respondent that the deposition so refuse relate to the material point in  controversy namely the consideration on which the deed of the car l be make  which be the disposal of the two manor of Dunnington and Blechingly the  countess own inheritance for the benefit of her husband family and that the  appellant disappointment in this respect be so much the great because rely  upon that evidence which can not but give the full satisfaction as to the  motive on which the countess execute that settlement and conclude himself safe  by the abovementioned order for read the deposition on both side he neglect to  make other proof of this matter as think it unnecessary that the pretence for  not read the lease be that they be make in breach of the countess article to  the contrary and be leave in the custody of the usher of the court of chancery  till further order but it brown er p be conceive that this fact if true be not  a sufficient reason for refuse those lease to be read since it be evident they  be not in breach of the article which be only make to restrain her lease  reserve two three of the rend without the consent of earl Henry but with a  honourable and just intent to preserve the estate in the family and therefore  it be that the lease be order to be seal up and remain safe till further order  and that they may be make use of for the end intend when occasion shall  require that the attest abstract of the deed ought the rather to have be read  to show the corrupt intention of the say Mr cock to make earl Henry tenant in  tail since it appear by the deposition of Marmaduke Gibbs Esq that earl Henry  be engage to pay cock considerable sum on security which entire depend on his  make he tenant in tail that the chief point insist upon at the hear be brown  that the deed of the car I be equal voluntary with that of the that car I and  that the first ought to prevail and though it be urge that upon the face of  that deed the sale and settlement of the countess estate appear to be the  principal consideration of it yet from the word heretofore be use therein the  respondent pretend that such sale and settlement be not the immediate motive  of the deed but as the deed be so ancient and execute by the earl and countess  and their trustee person of great quality integrity and knowledge in the law  and as the estate recite to be sell be undoubted the estate of the countess  and be actual so sell and settle it be strong presumable that at such sale and  settlement the earl promise and agree to settle the estate in the manner  mention in the say deed of the car I and it will be hard to call upon the  appellant at the distance of near year to prove the particular consideration  and yet deprive he of the benefit of those deposition which will full prove  the recital of such consideration to be true more especial as the witness who  make the deposition be all dead and as earl Henry affirm and act under the  deed of the that car I for thirty year and enjoy a estate of pound a year  under no other title than what he derive from that deed that it be also hard  upon the appellant that the deed of the that car I have be lie aside and  neglect and at length bring to light by very sinister mean shall be allow to  stand in competition with that of the that so solemnly make upon such valuable  consideration and so public own in the family and that the respondent can have  no reason to complain since she be advance in marriage with a duke and provide  with a jointure of pound per and on the foot of that settlement which be make  of the countess estate of Blechingly and which she part with to obtain the  settlement of the that as to the objection that by the settlement make the  duke of Norfolk marriage with the respondent lady mary the premise in  remainder be limit to the duke and his heir it be answer that earl Henry be  only tenant for life by the deed of car I can grant no more than he have and  that there be the less pretence to support the duke settlement as a purchase  because by the act of parliament which divorce he from the respondent the  estate so limit to he and his heir be express make void and in consequence of  which act the respondent sir John have procure a conveyance of the estate to  he and his heir to the disherison of the appellant who be the heir male of the  family and for the support of who honour it be settle in manner aforesaid but  this divorce and the subsequent marriage of the respondent and also the say  conveyance happen pendent light and after publication and therefore can not be  prove in the cause on the other side it be contend t powys n Hooper t Vernon  that the refusal of the deposition be high proper as neither the appellant nor  brown respondent be party to the suit in which they be take and therefore by  the constant rule of evidence can not be make use of either for or against the  appellant but in the cause where the deposition permit to be read be take the  appellant himself be a party and therefore bind by those deposition and as to  the order by consent it extend no far than to give each party a liberty of  make such use of the deposition as by law they may but not to prevent either  of they from object to such of the deposition as be not legal evidence it be  express provide by the order that all just exception shall be save to either  party that there be no reason why a court of equity shall permit lease to be  give in evidence which be make by the countess Elizabeth against conscience  and in breach of a express agreement under hand and seal to the contrary and  which agreement be not brown er p only confirm by a decree obtain against the  countess herself in her life time but also by a subsequent decree obtain  against both the appellant father and himself and the executor of the countess  that these decree still remain in force and even if unjust which they manifest  be not yet they can not be alter by any original bill especial where the  person interest in such lease be no party to the suit nor in any shape before  the court nor will these lease if give in evidence avail the appellant in his  purpose of make the common recovery void because the feoff by earl Henry in  make a good tenant to the precipe notwithstanding the lease beside Mr Newport  never accept these lease or make any entry or claim by virtue thereof and  therefore they be bar by the statute of limitation and by subsequent fine that  as to the deed surmise to be make by earl Henry to or in trust for cock it do  not appear by any proof in the cause that any such deed be real execute or if  it be that it in any manner concern the respondent or the premise in question  nor be it even suggest that this deed be ever in the respondent custody or  power and therefore no abstract of it ought to be admit and much less the copy  of a abstract which be all that the appellant offer in evidence and as to the  settlement of car it plain appear not to have be secret by earl Henry but be  fraudulent conceal by the countess during his infancy on purpose to wrong and  injure he and to give colour to the appellant title under the subsequent  settlement of car I that this prior settlement be bring to light in the manner  above state and if it be neither a undue practice for a plaintiff to bring in  a bill in equity to discover settlement unjust conceal or for a defendant when  compel to answer such a bill to confess the truth of it it be very strange  infer that the settlement have be so fraudulent conceal to earl Henry  prejudice he or any claim under he shall therefore lose the benefit of it when  discover and retrieve or that it shall be make brown use of as a argument for  set aside the former and establish the subsequent settlement that from the  time of earl Henry have discover this former settlement he always avow his  title under it and levy fine make feoff suffer a recovery make mortgage and  act in all respect as absolute owner of the estate in question and as this  settlement be prior in point of time to the other make upon good and valuable  consideration and without any power of revocation and as the appellant if he  have any title have his proper remedy at law it be humble insist that the  decree of dismission be just and that therefore the appeal be groundless and  ought also to be dismiss with cost and accord after hear counsel on this  appeal it be order and AJUDGED that the same shall be dismiss and that the  order or decree of dismission therein complain of shall be affirm jour vol p