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and that whatever determination might be made as to the claim of Lord Vane and the Earl of Darlington, yet on the death of the Duke before the expiration of the term, whoever should stand next entitled in the order of limitation, might bring an ejectment for recovering the possession; and the appellants, by their bill, had prayed no injunction to restrain it.

But to this it was answered, that many decrees for the specific performance of agreements of this sort between vendor and purchasor, had been pronounced, without any injunction granted to affect other persons, not parties to such agreements. But it was apprehended, that the submission of the respondents by their answers, gave a clear jurisdiction to the court, to declare the rights for the benefit of the appellants: and in case actions should hereafter be brought at law to try the question, the court of Chancery would injoin those proceedings, upon the ground of such submission. That this reasoning is agreeable to constant experience in that court; where a general submission to account, between merchants and their correspondents or trustees, and those who are interested in the trust, will open stated accounts, and amount to a waiver of releases and legal bars, (though otherwise they might have been insisted on) and found the equitable jurisdiction of the court to unravel the whole transaction, merely by force of such submission. It was therefore hoped, that the said decree or order of dismission would be wholly reversed; and the agreement be specifically performed and carried into execution.

On behalf of the respondent Lord Vane, it was argued (C. Pratt, G. Perrot), that his right was a mere legal right, and properly determinable in a court of law, if the event should happen that the respondent the Duke should die without issue male; and if he should leave issue male, which might likewise yet happen, then the right of the present parties could never come in question. A court of equity ought not therefore to compel this respondent to litigate a right by anticipation, which might either never come in question, or if it ever should, would be properly determinable in a court of law, upon an ejectment, and not in a court of equity. That this was a bill framed to draw from the court an opinion, in order to give a sanction to an unmarketable title; and a court of equity ought not to decree a specific performance of an agreement for a purchase, where it was doubtful whether a good title could be made to the purchasor. That supposing it had been now proper to have determined upon the rights of the parties, the determination ought to have been, that no such estate or interest vested in Thomas Pelham, as was transmissible to his representatives: for the rights of the issue male of the present Duke, if he should have any, [216] of Thomas Pelham, and the respondents Lord Vane and the Earl of Darlington, were not possibilities, but contingencies with several aspects; each of them had a contingent right of taking and enjoying these leasehold estates, on the happening of certain events; but the vesting or attaching of the right ought to be suspended till the event should happen, when it would be certainly known who was the person entitled under the limitations of the will; but those events could never happen during the respondent the Duke's life. But if an absolute interest in the leaseholds could vest at all in any one person, during the life-time of the Duke, it was submitted, that this interest vested absolutely in Christopher Vane, he being the first person in esse to whom these leasehold estates were limited in tail. It was therefore hoped that the decree would be affirmed, and the appeal dismissed with costs.

On the part of the Earl of Darlington, it was insisted (A. Forrester), that no estate or interest, subsequent in point of limitation to the life estate of the respondent the Duke of Newcastle, and the remainder in tail to his male issue, could rest until his Grace's death without issue male; and consequently, nobody could be entitled until that event should happen, and when it did happen, the person in esse, and then entitled to take the leaseholds in remainder, would take the whole term. That the testator's intent was clear, to carry the limitations of his leasehold estates as far as possible with his freeholds, and this intent was answered by the respondent's construction; as the leaseholds would, upon the Duke's death without male issue, go to the person who would take the freehold estates, agreeable to the general construction of wills containing family settlements; wherein both at law and in equity, the limitation of leaseholds, so as to carry them with the freehold estate, is favoured and extended, where such extension does not tend to a perpetuity; of which there was no danger in this case, since upon the Duke's death it would be seen who was the party to take, and