covery, form part of the same assurance, the uses are to arise only from the time that the fine is levied or the recovery is suffered (e). In the language of Lord Mansfield, applied to a case of this description, the deeds must be considered as executory, till the fine is levied, and then the estate passes by the fine (f). It must be remembered, however, that the person who has already conveyed his estate, no longer retains any legal ownership. That ownership has passed by his conveyance; and he is effectually bound by the conveyance, as far as it is operative; and merely retains, in consequence of his former ownership, the power of giving a more complete effect to his conveyance, by rendering that assurance absolute, which was de feasible, or by rendering that ownership in definite, which was at first determinable (g). Lord Mansfield's doctrine, that the deeds must be considered as executory, is to be read with reference to the rule, that for some purposes, the fine, recovery, and deed, are parts of the same assurance; they never were intended to deny, that the seisin passes by the conveyance. These preliminary observa

(e) 2 Burr. 714.

(f) In Doe ex dem. Odiarne v. Whitehead, 2 Burr. 714. 18) Stapilton v. Stapilton, 1 Atk.

Goodright v. Mead, 3 Burr. 1703.

Cheney v. Hall, Ambl. 526.

Moody v, Moody, Ib. 649.

tions lead to the consideration of the rules

which govern,

1st, Deeds to lead the uses of fines, &c. 2dly, Deeds to declare the uses of fines, &c. 3dly, Deeds of conveyance to uses, to be perfected by subsequent fines, &c.

Whether the agreement, or declaration, relates to a fine, or a common recovery, it is governed by the same rules. For that reason, cases applicable to either species of this assurance will be introduced, as equally relevant to the point requiring elucidation; or, at least, as often as any distinction arises, peculiarly applicable to either species of this assurance, that distinction will be noticed by way of caution against any error into which the reader might otherwise be led.

As to Deeds to lead the Uses of Fines.

The general rules which govern deeds of this description, are to be found in the Countess of Rutland's case (a). These re solutions are in the following terms:

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First, "Although the indentures being made "for declaring the uses of a subsequent fine, recovery, or other assurance, to certain persons,and within a certain time,and to certain uses, are but directory, and do not bind the "estate or interest of the land; yet if the fine,

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recovery, or other assurance, be pursued ac"cording to the indentures, there could not be "any bare averment against the indentures "taken in such case, that after the making of "the indentures, and before the assurance, by "mutual agreement of the parties it was con"cluded and agreed, that the assurance should

be to other uses; but if other agreement, or limitation of uses, be made by writing,or by "other matter as high or higher; then the last 66 agreement shall stand for every contract

or agreement ought to be dissolved by matter "of as high a nature as the first deed; nihil

(a) 5 Co. 258.

"tam conveniens est naturali æquitati, unum

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quodque dissolvi eo ligamine quo ligatum est.

Also, it would be inconvenient that matters "in writing made by advice and on considera"tion, and which finally import the certain "truth of the agreement of the parties,should "be controlled by averment of the parties, to "be proved by the uncertain testimony of slippery memory; and it would be dan

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gerous to purchasers and farmers, and all "others in such cases,if such nude averments, against matter in writing, should be ad"mitted.

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Secondly, "If the form of the indentures. "be not pursued; as for the quantity of "the land, or the time within which, &c. in "these cases, and other like, where the in"dentures be not pursued, averment, without "writing, might be taken, that the fine, reco"very, or other assurance, was to another use "or intent than is contained in the indenture: "for inasmuch as the indentures are not pur❝sued, it is reasonable that the parties should "be admitted to shew the cause and reason why they were not pursued, by reason of "the new agreement subsequent, which in "such case might be as well by word, as by writing.

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Thirdly," Although the indentures are not "pursuant in circumstance of time, quan"tity, person, and the like; yet if no other

new mean agreement can be proved, the "assurance should be, in judgment of law, "to the use contained in the indentures.

Fourthly," In the principal case, the fines "could not be directed by both the indentures; *that is to say, by the first indenture, to the use "of the Earl Edward and Isabel his wife, 'for "their lives;' and by the second indenture, "to the Earl and the heirs males of his body, "with the remainders over, limited by the 66 second indenture; and so the fines to work

upon both the indentures (although perad"venture such was the intent of the parties); " and that for three reasons:

1st, "The directions and declarations of "the first indentures were controlled and frus"trated by the second indentures, and there"fore the fines could not be directed by both. 2dly, "The indentures import several dis"tinct, and divers contracts and estates; that "is to say, one to the Earl and Isabel his wife, "and to the heirs of the Earl; the other, to the "Earl only, and to his heirs males of his body,

with divers remainders over: so that the "fines ought for the manor of Eykering to be "directed, either wholly by the first, or wholly "by the second, without any fraction or divi❝sion of estates.

3dly," It would be against the words and "intent of both the indentures, to make a hotch-pot and commixture of both, which,