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his heirs, in whom the fee of the premises was vested, should convey the same to me and my heirs: but the said Sir John Wroth dying before such deed was executed, and leaving issue an infant, not above the age of eight years, 'tis at present impossible to have the fee conveyed to me; wherefore, I do hereby declare, and 'tis my will and desire, that a conveyance be executed by the heirs of Sir John Wroth, when they shall attain to their full age, according to the settlement in tail hereafter mentioned.

The testator then devised the said premises to John Fisher, eldest son of Henry Fisher and Elizabeth his wife, for the term of his natural life; remainder to trustees, to preserve contingent remainders; and after the death of the said John Fisher, to the first son of the body of the said John Fisher, and the heirs male of the body of such first son; remainder to the second, third, fourth, fifth, sixth, seventh, eighth, and every other son of the said John Fisher successively in tail male; remainder to Nathaniel Fisher, second son of the said Henry Fisher for life; with remainder to trustees to preserve contingent remainders; and then to the first and other sons of the said Nathaniel in tail male; remainder to Edward Fisher; third son of the said Henry Fisher, and his sons in like manner; remainder to all and every other the son and sons successively, of the said Henry Fisher and Elizabeth his wife, and the heirs males of the body of every such son and sans, according to their seniority; and for default of such issue, to the right heirs of Stephen Beckingham, Esq. and Richard Watson, Gant. their heirs and assigns; and the said testator directed, that the remainder of the said term should remain and be attendant on the inheritance of the premises, according to the limitations aforesaid: and as for all other his real and personal estate, he devised the same to the said John Fisher, Nathaniel Fisher, and Edward Fisher; the elder of them to have a double share, and the rest between the other two; and made the said Stephen Beckingham and Richard Watson, executors of his will; and the testator also directed, that every person to whom the premises were limited by the devises aforesaid, should take upon him and use the sirname of Brett.

In 1683, the testator died, and the said John Fisher took upon him the name of Brett, and entered on the premises; and afterwards the said Henry Fisher and Elizabeth his wife died, leaving issue only three sons, the said John Brett Fisher, Nathaniel Fisher, and Edward. Fisher; Nathaniel Fisher, the second son, died without issue, having made his will, and appointed his brother Edward executor thereof, who proved the same; and afterwards died without issue, having also made his will, and ap-[143]-pointed the said John Brett Fisher, executor thereof, who duly proved the same.

On the 18th of March 1713, the appellant Nathaniel Wilkins Brett, as heir of Richard Watson, one of the executors of Sir Edward Brett's will, exhibited his bill in the Court of Chancery, against the said John Brett Fisher, and Edward Fisher, and against some of the tenants of the premises; praying, that the said John Brett Fisher, and Edward his brother, might be injoined from cutting down timber on the promises, or committing any waste thereon.

All the defendants having put in answers to this bill, the cause came on to be heard before Mr. Justice Tracy, in the absence of the Lord Chancellor Cowper, on the 35th of November 1715; when it being suggested, that as it did not appear that the inheritance of the premises was actually conveyed by Sir John Wroth, or his heirs, there was a possibility that the heirs of Sir John might set up some claim to the premises, whereby the appellant's title to the fee simple in remainder might be rendered precarious; it was ordered, that upon the appellant's giving security, to indemnify the defendant John Brett Fisher against the heirs of Sir John Wroth, it should be referred to a Master to see what timber had been felled, and the value of it, since Sir Edward Brett's death; whereof the defendant John Brett Fisher was ordered to pay que moiety to the plaintiff; but as to the other moiety, no directions were given and the injunction which had been granted, was continued, end the deeds and writings were to be brought into court for the benefit of both parties.

Afterwards, on the application of the then defendants, the cause was reheard by Lord Cowper on the 5th of May 1716; who was pleased to order, that the appellant should be at liberty to amend his bill, and make the heir of Sir John Wroth a party; and the injunction was continued until further order.

The bill was accordingly amended, and Sir Thomas Wroth, the heir at law, made