"comprises all the premises in the greater "deed by which the powers were created.

"It never could be the intent to revoke "those powers at the instant they were created, by the lesser deed, which makes no " mention of them; or by a fine levied agree"able to the greater deed, in which they are "contained.

"Sir Robert Atkyns, who survived the "transaction above 30 years, has shewn, by many acts, that he understood the powers to be well created and subsisting..

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"If it was necessary, we ought to presume "the lesser deed first executed, to support the "clear intent of parties, in a family settle❝ment, made for valuable consideration; for "it is impossible to suppose they could really "mean to revoke or extinguish these powers, " and take this way of doing it. But in this . case, there is no room for presumption: the “internal evidence of the thing itself speaks "them to be one transaction; and the same, ❝ to all intents and purposes, as if expressed "in one instrument."

Of Deeds declaring the Uses of Fines.

In deeds of this description, there is an interval between the time when the fine is levied, and the date of the declaration of the uses. The presumption of law is, that

the use results to the former owners, immediately after the fine is levied; and it is an acknowledged rule, that when there is no declaration of uses, or as far as the declaration of uses does not extend, or is ineffectual, the use will result to the former owners, according to their respective interests at the time when the fine was levied; but the law allows of a declaration of uses, at any time in the life of those parties by whom the fine is levied. The law on this point was fully considered in Dowman's case (a). In that case, a recovery was suffered in pursuance of an agreement, and no uses were declared by that agreement. After the recovery had been suffered, and by a deed reciting the recovery, uses were declared; and this deed, and the uses, were found by special verdict; and one of the questions moved and argued in the case, was, if the

(a) 9 Co. 7. b.

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said indenture, made after the said recovery, was sufficient in law to direct and declare the uses of the said precedent recovery. And it was argued, "that the said indenture was 66 not sufficient to declare and direct the uses of the said precedent recovery, for five reasons and causes:-1st, When a recovery " is suffered (it being without consideration), immediately after the recovery the law adjudges it to be to the use of him who "suffers the recovery, and his heirs; then, "when the use, in the case at bar, was vested "in Peter Vavisor immediately after the

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recovery executed before the said inden"tures made, this use so vested cannot be "divested by any declaration or agreement "subsequent; and the deed indented shall "not conclude the heir in this case, because "it being subsequent, cannot by the law "divest that which was vested immediately "after the recovery had. And to this purpose they cited the books in 39 Ass.

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p.

3.

" & 46. E. 3. Assise 357. where an infant

brought an assize against T.of certain lands;

"the defendant said that J. uncle of the in

fant, whose heir he is, held the said land " of him by homage, escuage, and four marks "rent, and died seised; and because the plain"tiff was within age, he seized the tenements

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by reason of wardship: to which the plaintiff said, that the said J., held in socage "&c.; to which T. the defendant said, to say

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"that you shall not be admitted, for the said J. your uncle, upon a debate betwixt us, acknowledged to hold the same land of us by such services, by deed indented; and demanded judgment, if he shall be received to say the contrary, and shewed the deed, &c. "and that case for difficulty was adjourned "into this court, and there it was adjudg"ed that the said acknowledgment or de"claration by deed indented, should not "conclude the heir of J.; and the reason

of Thorp Chief Justice, who gave the judg"ment, was, because by the deed indented, "other services could not be granted which

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were not due before, wherefore take the as"sise. So in this case at bar, the deed in"dented subsequent shall not conclude the " heir of Peter Vavisor, because it cannot "divest the use, which was, by operation of law, vested immediately after the recovery. "And they also cited 35 H. 6. 33, b. John "Crook's case, where the like acknowledgment by deed indented was made, &c. and estoppel pleaded; and it was adjudged that the declaration, by deed indented, for the cer"tainty of the services, should not bind "the heir of the tenant, who was party "to the said deed indented.-2dly, it was

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objected, that every declaration of uses

upon recoveries, fines, &c. of lands, tene"ments, and hereditaments, ought to be cer"tain, otherwise there will be no certainty of

“inheritance; and this certainty ought to "be chiefly in three things, &c. in persons "to whom; in lands, &c. of which; and in "estates by which uses shall be limited and "declared; and if certainty fails in any of "them, the declaration is not sufficient. But "here in the case at the bar, there was not any of these certainties when the recovery

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was suffered; and therefore the declaration subsequent insufficient, oportet quod “certæ personæ, certæ terræ, &c. &c. certi sta"tus comprehendantur in declaratione usu "The 3d objection was, that the limitation “and declaration of the uses ought to be com

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usurum.

plete of itself, without any reference to in"dentures or other writings to be made "afterwards; for then it is but an imperfect "communication, and no complete declaration; and that it was but a communication,

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they alledged three reasons:-1, that the "uses were many, and of great variety of es"tates: 2, that it concerned the establish"ment of his inheritance of a great yearly "value in his name and family, and therefore "the intention of the parties never was to "leave it to the sliding and slippery memory "of man, which would be lost in a short "time, and especially when the said Eliza"beth (one of the plaintiffs) was his sister and "heir, before whom he preferred others of his

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name and blood: S, several of the uses and "estates could not be limited with such