the use is to arise, is perfected upon the delivery of the deed by the operation of the statute of uses; and the subsequent fine, not operating by way of transmutation of possession, but as a confirmation, or extinguishment of right, there is no seisin to serve the use limited upon it. It is a more difficult case, where the fine is levied of a term preceding the execution of the deed; but even in this case, it should seem, that the fine would be considered merely as a further assurance, not disturbing, but by way of confirmation of, the first limitation of the useb. The latter point, however, is extremely doubtful.

SECT. VIL of declarations

of uses.

Fourthly. The general construction upon, The construe and effect of, the declaration of uses.

tion upon, and effect of, the declaration.

(184.)

words are ne

(1.) A very slight expression is sufficient No formal to declare the uses of a fine or recovery; no cessary. formal set of words being required for that purpose. Therefore, whenever the intention of the parties can be collected in the limitation of the uses of a fine or recovery upon any expression in a precedent or subsequent declaration or conveyance, such declaration or expression is sufficient to declare the uses of the fine or recovery; and the uses may

See Southcoat v. Mamory, cited above, and see 22 Vin. 227. pl. (9.) 8. Oliver v. Gyles, Cro. Eliz. 300.

See 3 P. W. 208.1 Lord Ray. 290. 12 Mod. 162. A covenant for further assurance (Hob. 275. 13 Vin.

(185.)

SECT. VII. be declared by deed indented, or by deed Of declarations poll.

of uses.

Must be certain as to the persons, place, and

estate.

No considera

(2.) "The declaration of the uses must be "certain, and that especially in three things; " in the persons to whom, in the lands, &c. "of which, and in the estates by which, the

uses are declared; and if there want cer"tainty in either of these, the declaration is "not good: and it must be complete in itself " without any reference to indentures or other "writings to be made afterwards, for then it " is but an imperfect communication, and no " complete declarationi."

(3.) It is not necessary, that there should sion necessary. be a consideration expressed in a deed to lead or declare the uses of a fine or recovery k.

Whether it breaks the de

(4.) It has been before observed, that if a scent, when it man, seised on the part of his mother, had

declares the use to the recovesee, or conuzor in fee.

(186.)

made a feoffment without any consideration or declaration, and the use had thereupon resulted to him in fee, or if he had expressly declared the use to himself and his heirs; in either case the descent would not have been broken, but the lands would have descended

of declarations

of uses.

to the heirs on the part of the mother1. So SECT. VII. if tenant in tail, who takes by descent from his maternal ancestor, suffer a recovery, and declare the use to himself in fee, the descent is not broken, and the newly-acquired fee will descend to the heirs ex parte maternam. But here a distinction is taken if a tenant in tail take by purchase under a settlement, made by his ancestor ex parte materna, and suffer a recovery with a declaration of the use to himself in fee, the estate in fee will descend to his heirs ex parte paterna. But it should seem, that in this case, if the reversion in fee ex parte maternd had been in the tenant in tail, a fine by him would have had a different operation; for it is the nature of a fine to let in the reversion o.

VIII. Upon the construction of the statute, four necessary points are to be observed for the execution of an use P:-1st; a person seised to the use; 2dly; a cestuique use in esse; 3dly; a use in esse, scil. in possession, reversion, or remainder; 4thly; an estate or seisin, out of which the use is to arise; for the words of the statute are, that the ese tate of such person seised to the use shall be adjudged in cestuique use, &c. It follows,

See ante, 56. 22 Vin. 185. pl. 4, 5. notes. mRoe dem. Crow v. Baldwere, 5 Term, 104. Martin v. Strachan, note

(a), 5 Term Rep. 107.

• See 5 Term Rep. 108, 109.

P1 Co. 126. a.

SECT. VIII.

of uses which

are not exe

cuted by the statute.

Ist, Contingent

uses.

(188.)

that if the above requisites do not concur, there can be no execution of the use: and, therefore, that contingent uses, during the suspense of the contingency, cannot be executed by the statute b.

The doctrine of contingent uses is explained in the two cases of Dillon v. Friene (or Chudleigh's case) and Wegg v. Villers.

Chudleigh's case was in effect thus: A. enfeoffed B. C. D. and their heirs to the use of himself and his heirs on the body of Mary (then the wife of sir T. C.), lawfully begotten, and in default of such issue, to the use of his heirs on the body of Elizabeth (then the wife of R. B.) lawfully begotten; and in default of such issue, to the use and performance of his will for ten years immediately after his death, and after the said term ended, to the use of the said feoffees and their heirs during the life of C. C. his son, and after his death to the use of the first issue male of the said C. C. lawfully to be begotten, and to the heirs of the body of such first issue male lawfully begotten, and in default of such issue, to the use of the second issue male, &c. in like manner; and so on to the tenth issue, with several remainders over, and with the reversion in fee to

are not exe

tute.

the said A. Afterwards A. died without SECT. VIII. issue by either of the women; and the of uses which feoffees before the birth of the first son of cuted by the sta C. C. enfeoffod the said C. C. to the use of himself in fee, without any consideration, but with notice of the former uses. The first son of C. C. was afterwards born; and the question was, whether the feoffment destroyed the use in remainder so limited to the first son of C. C.? which question depended upon another, viz. whether before the contingency happened, i. e. the birth of the son, the use vested, and was executed in the son? It was determined by the majority (189.) of the judges, that the use before the contingency was not executed in the son; and that the feoffment entirely destroyed, and prevented the execution of the uses in contingency, although made without any consideration and with notice.

By the arguments of the judges in this case, it seems to have been the better opinion, that upon the feoffment of A. all the uses in esse were immediately executed, and that there was no present actual seisin left in the feoffees, nor were the contingent uses executed: that though there was no actual seisin left in the feoffees after the first feoffment, yet a possibility of seisin remained in them to serve the contingent uses, when they should arise, or come in esse: that this possibility of