enabled to declare such uses or trusts, "after the levying or suffering of any such "fines or recoveries, are and shall be as good " and effectual in the law as if the said last" mentioned act had not been made." The third resolution also remains in force, not only unimpeached by any subsequent decision, but enforced by resolutions in other cases. Thus in the cited case of Stapilton v. Stapilton, (k) Lord Hardwicke observes, "it "is true, where there is an agreement to suf"fer a recovery, and uses are declared; if the recovery is after suffered, though it va"ries in point of time from the recovery co"venanted to be suffered, yet if there is no subsequent declaration of uses, the reco very will enure to the uses so declared." And in the third resolution, in the case of Jones v. Morley, already cited, Lord Holt observed, "that without such averment, the "fine shall be intended to the use of the "first agreement, notwithstanding the vari"ance." In the report of the same case by Lord Raymond (4), the proposition is stated more distinctly in these terms: " though "there is a variance between the deed and "the fine, yet, if nothing appears to the con"trary, the fine shall be taken to be to the "uses of the deed, and in that case the "deed is not only evidence of the uses, but (k) 1 Atk. p. 7. the fine is, by construction of law, to the "uses of the deed." The fourth resolution proceeds upon the same principle, as is to be found in Beckwith's case, cited in the first volume. (m) This doctrine was discussed in Taylor v. Horde,(n) and a different doctrine seems to have prevailed in that case. According to the decision of that case, several deeds may be construed as part of the same assurance; and the uses in each deed may have effect, as far as they are consistent. The language of Lord Mansfield in that case was: " as to the first 66 ground, that Lady Atkyns had no estate "for life, the whole argument depends upon "this proposition, that the lesser deed was "executed after the greater deed, and con"sequently the power to Sir Robert Atkyns "the father, to make a jointure, was extin guished by the fine levied in Trinity term "1669. But the jury have not found the "fact, which was first executed. Both deeds "bear the same dates. They are both con"sistent. They are both manifestly but one "agreement, executed by different instru"ments, to answer different purposes, and "to suit (probably) the convenience of one "party, who was interested only in a small "part of the transaction. The fine levied in Trinity term 1669, pursued both deeds, and 66 m) p. 314. n) Burr. p. 60. 65 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 "agreeable 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. "If it was necessary, we ought to presume "the lesser deed first executed, to support "the clear intent of parties, in a family settlement, made for valuable considera"tion; for it is impossible to suppose 66 66 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 evi"dence of the thing itself speaks them to "be one transaction; and the same, to all "intents and purposes, as if expressed in 66 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 Downman'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. 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 "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 Vavasor, immediately after the 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. p. 3. " & 46 E. 3. Assize 357, where an infant brought an assize against T.ofcertain lands; "the defendant said that J. uncle of the in 66 fant, whose heir he is, held the said land "ofhim by homage, escuage, and four marks rent, and died seised; and because the plain"tiff was within age, he seised the tenements by reason of wardship: to which the plain"tiff said, that the said J. held in socage, "&c.: to which T. the defendant said, to say 66 |