66 66 66 66 "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 thedeed, &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 "were not due before, wherefore take the "assize. So in this case at bar, the deed in"dented subsequent shall not conclude the heir of Peter Vavasor, 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 acknowledg"ment by deed indented was made, &c. and 66 66 66 estopel pleaded; and it was adjudged that "the declaration, by deed indented, for the certainty of the services, should not bind "the heir of the tenant, who was party to "the said deed indented.-2dly, It was ob 66 jected, that every declaration of uses upon recoveries, fines, &c. of lands, tenements, " and hereditaments, ought to be certain, "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 66 ઃઃ was suffered; and therefore the declara"tion subsequent insufficient, oportet quod "certæ persona, certæ terræ, &c. &c. certi sta"tus comprehendantur in declaratione usuum. "The 3d objection was, that the limitation "and declaration of the uses ought to becom 66 plete of itself, without any reference to in"dentures or other writings to be made "afterwards; for then it is but an imperfect 66 66 66 66 communication, and no complete declaration; and that it was but a communication, 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 Elizabeth 66 (one of the plaintiffs) was his sister and heir, "before whom he preferred others of his name and blood; 3, several of the uses and estates could not be limited with such 66 66 qualities and privileges by word without deed, as the use limited to the said Peter Vavasor(and to divers others forlife), without impeachment of waste, which privilege "to be dispunishable of waste none can have by word without deed; and therefore all "the words which passed betwixt the par"ties before, or at the time of the recovery, "were referred to indentures to be made 66 66 66 thereof, and so but a communication, and no complete agreement, quia id perfectum "est quod ex omnibus suis partibus constat, et nihil perfectum est dum aliquid restat agen"dum. The 4th objection was, that the said indenture was but directory, and declaratory of the uses of the recovery, and was not "of any force to raise or create any use: then "when the issue is, whether the said recovery 66 was suffered to the said uses mentioned in "the bar, the said indenture subsequent might, peradventure, be good evidence to persuade the recognitors of the assise that "the said recovery was suffered to the said "uses; but of itself, being subsequent to the recovery, it is not sufficient in law to direct "the uses of the precedent recovery, unless by the agreement of the parties the uses "were so declared before, or at the time of "the recovery; and then the declaration pre"cedent, and not that which was subsequent, "is the declaration which binds in law, and "the subsequent is but evidence to prove the precedent: and therefore, if the said Ed"ward Vavasor had pleaded the said reco 66 very, and pleaded also the indenture sub"sequent, to the effect as the recognitors “have found it, that would be altogether "insufficient, for the indenture subsequent "is but the report and evidence of a former thing, &c. that the true meaning of all "the said parties, &c. at the time of the said recovery, &c. was, that the said recoverors, &c.'; and evidence shall never be 66 66 pleaded, because it tends to prove matter "in fact, and therefore the matter in fact "shall be pleaded; and if that is denied, the "evidence is to be given to the jury, and not "to the court. And therefore, in 9 E. 3. 5, ❝b. and 6, a, John Darcy brought a quare 66 impedit against the Bishop of Durham, "of a disturbance to present to the church "of Simondsbury, and declared that King Edward 2, was seised of the manor of "Wreckes in Tindall, to which the advow 66 son is appendant, and presented, &c. and "made the descent of the manor to the king "that now is, who gave the manor, with the "fees and advowsons, to the plaintiff, and his 66 66 heirs, &c.; to which the defendant said, "that the advowson is not appendant to the manor, &c. ; to which the plaintiff replied, that to this averment the defendant should not come; for we say that one Edward, late king of Scotland, was seised of the manor "of Wreckes, and of the advowson, and pre 66 "sented to the church as appendant; and "shewed how afterwards the manor came "to the hands of king Edward, the grand"father, by forfeiture of John Baliol; and "shewed how afterwards the kings presented as appendant to the manor: wherefore the 66 66 plaintiff did not conceive that against so many presentments as appendant, that the "defendant should be received to say that "the advowson is not appendant. And Sir William Herle, who gave the rule, said the "presentments of which you speak are but "evidence to the jury that the advowson is 66 appendant, and evidence shall not oust the "defendant of his plea. The 5th and last objection was, that if these declarations sub 66 66 sequent should be sufficient in law to de"clare the uses of a precedent recovery, for "as much as they will be restrained to no "certain time,' and therefore may be made many years after, by that means estates, "leases, and interests in and out of the lands "vested in the mean time, would be thereby "defeated, which would be full of mischief "and inconvenience. And the case of Ar"thur Basset, which you may see reported by "the Lord Dyer, 3 & 4 Ph. and Ma. 136, that "indentures made four years after a recovery "were held sufficient to declare the uses of a 66 precedent recovery, was agreed to be good "law; for in the said case of Basset the recovery "was suffered in 16 H. 7, and the indentures "made anno 20 H. 7, (which was long before |