"But if it was doubtful whether the recovery suffered in 1725 should enure to the "uses declared by the deed of 1724, I am "of opinion the recovery will operate to "make good those estates, which passed by "the deed of 1724.

"But to this two objections have been made. "1st. That the uses must be governed by, " and operate according to, the intention of "the parties; therefore the subsequent recovery being suffered to other uses, those uses will take place. 2dly. If any uses did

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pass by the deed in 1724, yet this recovery "will not make those uses good, because "the subsequent recovery was suffered, to particular uses, declared by the deed of "1725.

"As to the first objection; I am of opi"nion that a use did pass by the deed of "1724, and according to the intention of "the parties. It is certainly true, that, ac

cording to the statute of uses, the gene"ral doctrine is, that the uses shall be "executed according to the intention of "the parties; but both the courts of law "and equity consider what was the general "and final intent of the parties. In this

case, their intention was that the estate "should pass, and wherever a court of law or "equity find that the general and substan"tial intent of the parties, was that the es

"tate should pass, they will construe deeds "in support of that intention, different "from the formal nature of those deeds "themselves; as a feoffment, to serve the "intention of the parties, shall operate as a "covenant to stand seised. The intent here 66 was, that the estate, in point of law, should pass by the deed of 1724, and that the "uses declared by that deed should vest in "the mean time till the recovery suffered.

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"This is an answer to the objection "arising from the statute of uses; but "there is another question, what estate pass"ed by the deed of 1724?

"It was a defeasible estate, to serve the 66 uses of that deed; and so is the resolution "in Machell v. Clark in Farr. 18. Salk. 619. "That tenant in tail may convey a base fee, "and estate defeasible by the entry of the ❝ issue.

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"The next question is, whether the recovery suffered in 1725 did enure to make good, and render indefeasible those base 'estates created by the deed of 1724?

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"And I am of opinion they are made good. The objection to this is, that the recovery was suffered in pursuance of the "deed in 1725, wherein there were new "uses limited, but the only uses which make

any difference in that deed are to Philip "the son and his heirs, so there is no body

"concerned in the question but Philip and " his heirs.

"It has been argued by defendant's coun"sel that, if the first declaration of uses is "in general to prevail, purchasers of estates, "though they have a recovery for strength

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ening their title, with a declaration of the

uses of the recovery to themselves and "their heirs, cannot be safe, for the vendor

may defeat such declaration by a prece"dent one, to different uses; but in such "cases I think a recovery would not enure to "make good such former declaration of uses, but only the uses of the purchase.

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"It is admitted, that if tenant in tail con"fesses a judgment, or a statute, or enters "into a bond, and afterwards suffers a recovery to bar the estate tail, it lets in the precedent judgment, &c. And it is as clear, if a tenant in tail makes a lease "not warranted by the statute of the 32 Hen. "8. if he suffers a recovery, that lets in the "lease and makes it good.

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"There are so many cases of this kind, "that it is not necessary for me to mention "them.

"This case is different from those that turn "only upon the point of the effect of a mere "declaration of uses; for a mere declaration "of uses subsists only upon the agreement "of the parties, and in such cases, where "the agreement has been changed by mu

"tual assent of all parties, there a recovery "shall enure to make good such last agree"ment or declaration.

"But if the estate was vested, notwithstand"ing such declaration of uses, yet the reco66 very has always been held to make good "such defeasible estate; for the prior lease, "charge, or estate made by tenant in tail, is

only defeasible by the issue, by virtue of "the statute de donis, which was made to "protect the issue against the alienation of "the tenant in tail; therefore the issue would "avoid such lease, &c. but not the tenant in "tail himself; but when, by the recovery, " he has gained to himself a fee, all the rea

soning for avoiding an estate, made by te"nant in tail is gone, for the issue is barred "by the recovery. The reason why the is

sue may avoid a charge made by tenant in "tail, is upon account of the protection of “the issue, and his estate, under the statute "de donis, and of the privity of the estate. "tail; but when the privity is gone, the rea

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son ceases, and to this purpose is the "case of Croker v. Kelsey, Sir W. Jones, " 60.

"In the case of Lord Derwentwater, Mod. "Cases in Law and Equity, 172, 2d part, the question was, whether a papist, tenant in "tail, suffering a recovery, and declaring the

uses to himself in fee, gained a new estate "within the 11th and 12th of Will. 3. or was.

"in of the old use? And it was held, the 5th of "Geo. I. by four judges out of five, appoint"ed delegates to determine appeals from the "commissioners of forfeited estates, that he

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was in of the old use; and I take it for law, "that a tenant in tail suffering a recovery, is "in of the old use, and that the estate is discharged of the statute de donis; and there"fore I am of opinion that the recovery has "made good this defeasible estate, created by "the deed of 1724.

"It has been objected, that if the plaintiff "has any title, his remedy is at law, but I "think it is more properly here; he is an in"fant, and has come recently into this court, "nor do I think this case depends intirely 66 upon the point of law; for I am of opinion "that the plaintiff is intitled to have an exe"cution of the agreement, as a good and "binding agreement in this court."

In Moody v. Moody, (n) Edward Moody was tenant in tail, under his father's will, with a contingent remainder in fee to himself, and being about to marry, in 1709, he conveyed (by way of immediate use) to the use of himself and his intended wife, for their lives, with remainder to the heirs of their bodies, remainder to himself and his wife in fee.

Edward Moody afterwards made his will, and devised part of the estate, of which he

(n) Ambl. 619.