him, as representative of Richard Watson, who was a trustee of the same for Sir Edward Bret. Then the point to be determined is with regard to the account of the rents and profits. Though Brewster covenanted that Sir John Wroth, or his heirs, should convey the inheritance to Sir Edward Bret, and his heirs, yet it does not appear that Sir John Wroth was under any obligation to convey the same; for he was no party to the conveyance to Sir Edward Bret, nor did any thing to shew his agreement thereto : but the covenant of Brewster to Sir Edward Bret, being before the statute of frauds, there might be a parol agreement by Sir John Wroth, that he would convey, and it would be good; otherwise it would be difficult to account why Brewster should enter into such a covenant. However, Sir Edward Bret, by his will, desiring the heirs of Sir John Wroth to convey the inheritance, and directing the limitations of the same, and that the term should be attendant on it, did intend to devise the inheritance, and not the term in gross. But it is said, though the inheritance cannot pass, the term may, according to the limitations in the will of Sir Edward Bret. It is not necessary now to enter into the question how far limitations of terms are good, or whether, by such limitations as those in the present case, all the prior devisces dying without having had issue, the remainder of this term could vest in the plaintiff as to one moiety. But if I was to deliver my opinion about it, I should be under great difficulty: for on this point there is the opinion of one Lord Chancellor against another; my Lord Cowper, in the case of Higgins and Dowler, 2 Vern. 600, and Salk. 156, held such remainder of a term to be good, all the parties dying without ever having any issue: and by the present Lord Chancellor, there have been two cases determined, Clare and Clare, P. 7 G. II. Saberton and Saberton, 8 G. II. In one of them it may be taken, there was an estate tail in the first taker; but in the other it seems not to be so; but in both of them my Lord Chancellor held such limitations of estates tail, though to persons not in being, and never vesting, to be too remote, and so delivered his opinion. Higgins and Dowler, as it appears to me, was not clearly stated and urged, but was taken as it is reported in Salk. and Vern. which my Lord Chancellor said was incorrectly done in both of them but I have a complete report of it by two gentlemen; and in the case of Stanley and Lee, M. 8 G. II., I looked into the pleadings, and the Register's book; and on the whole matter I find the judgment of my Lord Cowper was, that such limitations never having been in esse, and so not vesting, the limitation over : might be good. There is one case I did not mention, when I gave my opinion in Stanley and Lee, and that is Massenburgh and Ashe, Chan. Rep. 275, in which the Judges were of opinion, that the limitation of a trust of term must be considered as limitations of a term at law; and that case is stronger for allowing limitations over than this, though that was on a deed, and this is on a will, which has a more favourable construction. But I must leave this point of the limitations of a term for future consideration, if ever it comes before the court, for this case will turn on a different point (I). Here Sir Edward Bret thought he was entitled to the trust (I) It is very satisfactory to find that Sir Joseph Jekyll did not give up his opinion in Stanley v. Lee. The doctrine in the case of Stanley v. Lee (2 P. Wms., S. C. MS.) is now well established, and the case of Clare v. Clare (For. 21, S. C. MS.) is overruled by a series of authorities, see Sabarton v. Sabarton, For. 55. 245, S. C. MS.; Knight v. Ellis, 2 Bro. C. C. 570; Phipps v. Lord Mulgrave. 3 Ves. Jun. 516. The rule, as now settled, is accurately stated by Mr. Fearne--Whatever number of limitations there may be after the first executory devise of the whole interest, any one of them, which is so limited that it must take effect (if at all) within twenty-one years after the period of a life then in being, may be good in event, if no one of the preceding executory limitations, which could carry the whole interest, happens to vest; but when once any preceding executory limitation, which carries the whole interest, happens to take place, that instant all the subsequent limitations become void, and the whole interest is then become vested. Excc. Dev. 4th edit. 415. In the last edition of this work a discussion was introduced, in this place, on the question, whether the term of 21 years, after a life in being, co id be taken as a term in gross in the case of an executory devise. This will now be found in n. (2) to the last edition of Gilbert on Uses, p. 260. The case of Beard and Westcott, there mentioned, was fully argued before the Master of the Rolls, upon the certificate being returned; and on the 17th Dec 1811, the Master of the Rolls gave the following judgment: “This case stood over in consequence of a suggestion, that the certificate of the Court of Commen Pleas involved in it the decision of a new question, which had not undergone any particular discussion, or received any particular consideration in that court: namely, how far the validity of a limitation over, by way of executory devise, is affected by the circumstance, that the period of 21 years, after the duration of an estate for life, has any connection whatever with the minority of any person taking an interest under the preceding limitations Now I do understand, that the question certainly did not receive any particular consideration in the Court of Common Pleas, it being taken for granted, that the rule upon this subject stood as it is commonly laid down in the books: namely, that the executory devise falls within the allowed limits, if the event upon which it is to take place must happen within a period of 21 years after the trust of the inheritance, and did not intend to devise the term in gross, but intended to devise the inheritance, and that it should attract the term; Whitechurch v. Idem, 10th Feb. G. I. A man being seised of a reversion in fee, and having the trust for a term for years to attend it, made a will of his own hand-writing, and the life or lives in being. I am not aware, however, that the point has been directly decided; and Lord Alvanley's doctrine, in the case of 'T'hellusson and Woodford, is against the addition of 21 years, except by way of provision for the circumstance of the devisee being under age, or in ventre sa mere at the expiration of the life or lives in being.-And as the question has now been raised, and as there is that degree of sanction to the doubt, it does seem to me desirable, that it should be set at rest by the decision of a court of law; so, therefore, I propose to send the case back again to the Court of Common Pleas, to call their attention to the point, that they may have an opportunity of pronouncing an explicit opinion upon it. I have received this informa tion from some of the judges.-The case was accordingly sent back to the Court of Common Pleas, who refused to hear it argued, until the point upon which their opinion was required was stated. Thereupon, the following question, with the approbation of the Master of the Rolls, was stated to be the question for the opinion of the Court: "How far the limitations over, in the event of there being no son or sons of John James Beard, nor issue male of such son or sons living at the death of the said John James Beard, or there being such issue male at that time, they shall all die before they attain their respective ages of 21 years, without lawful issue male, are affected by the circumstance, that they are to take effect at the end of an absolute term of 21 years, after a life in being at the death of the testator, without reference to the infancy of the person intended to take, or by the circumstance, that there may be issue of John James living at his death, to whom the estate is given by the will (but who would be incapable of taking according to the above certificate) for whose death, under 21, the limitation over, in the event before-mentioned, must await.-The case has since been argued before the Judges of the Court of Common Pleas, and they certified, that the limitations over, in the event of their being no sou or sons of John James Beard, nor issue male of such son or sons living at the death of John James Beard, or there being such issue male at that time, they shall all die before they attain their respective ages of 21 years without lawful issue male, are not affected by the circumstance; that they are to take effect at the end of an absolute term of 21 years, after a life in being at the death of the testator, without reference to the infancy of the person intended to take, nor by the circumstance that there may be issue of John James Beard living at his death, to whom the estate is given by the will, but who would be incapable of taking according to the former certificate from the Judges of this Court, for whose death, under 21, the limitation over, in the event beforemen tioned, must await. The case has since been argued before the Lord Chan cellor, who was pressed to send the case to the Court of King's Bench. It now stands for judgment. thereby thereby carved out several limitations of the land and premises, not unlike those now in question; but did not publish it in the presence of witnesses; and the doubt was about the limitations of the term; for the will could not pass the inheritance, being not executed according to the statute of frauds. But it was insisted, it might carry the term as the personal estate, upon which the opinion of the court was taken. But it was determined, it should not pass because the devisor intended to pass an inheritance, and the writing under the testator's own hand was looked on as an inchoate act to pass the inheritance, and therefore could not operate on the term. Besides, the testator in that case having prepared a writing which was intended to be executed according to the statute, there was no notice taken of any term that should be attendant on the inheritance, as there is in the present case, which makes it stronger against the plaintiff than it was in that case. That caso looks like an authority that must govern the present case; for though Sir Edward Bret was not entitled to the trust of the inheritance, yet he thought Sir John Wroth was bound to convey, and on that assurance and persuasion made his will and intended to pass it as an inheritance. There are several cases, where a man intended to pass something, and yet the law will not allow it; as in case of a devise, where there is an uncertainty either of the person or the thing, a fortiori here it should be void, because the testator intended to pass what he had not, for he intended to pass the inheritance when he had it not; and there is a great difference between real and personal estates, as to being assets or not, and also as to the course of succession to whom the same shall go after the death of the owner; and there is likewise a difference where a will is made as to the limitations of the one and of the other; therefore when the testator intended to pass an inheritance and had it not, there is no reason to suppose he designed to pass a term in gross; for he says the term shall be attendant on the inheritance according to the limitations mentioned in the will; and so, as to passing the term, the testator had not animum testandi: therefore I conceive the bill must be dismissed. No. No. XIX. Forshall v. Cole and Short (d), Ch. 27th Nov. 1733. Bill was brought to have a bond delivered up, and proceedings at law upon it to be stayed; the bond was entered into on this occasion: one Durant, in 1728, made a mortgage to plaintiff, but, before this, had given a bond to Cole for 2007. Cole, in 1725, obtained judgment upon his bond, and afterwards, since the date of the mortgage, took out an elegit, and extended the mortgaged premises towards satisfaction of his judgment: upon this, plaintiff, to save expense and discharge the lands, gave Cole a bond for the 2007. and interest; but it was agreed between them, that the bond should be deposited in Short's hands, and only to be made use of if Cole's judgment was entered so as to affect the lands precedent to plaintiff's mortgage. The judgment was signed in 1725, but not docketed, secundum stat. 4 and 5 W. and M. c. 20, till 28th January, 1730. Upon reading the statute the Master of the Rolls was of opinion, that judgments cannot be docketed after the time mentioned in the act, viz. the last day of the subsequent term in which they are entered, and that the practice of the clerk's docketing them after that time, is only an abuse for the sake of their fees, and ineffectual to the party; and he said he would speak to the judges about it. Solicitor General.-It is proved in the cause, that the mortgagee had notice of the judgment at the time of the mortgage. Master of the Rolls.-Notice is not material, the statute not making a difference between a mortgagee with notice or without; and besides, the notice which the act requires is the docketing, which by the act is become a constructive notice; and therefore he decreed the bond to be delivered up and cancelled, and that the plaintiff should have his costs both at law and in this court, and that the 107. which plaintiff had paid upon the bond, should be returned, which he said the attorney concerned in entering the judgment ought to pay out of his own pocket; and that he be (d) Vide supra, p. 408, 586, 587, 588, 601, |