Show. Parl. Ca. 140. Stapilton v. wife and her heirs, and judgment must be given for the heir of the wife. Upon a writ of error this judgment was affirmed by the House of Lords. § 17. A fecond deed to lead the uses of a fine or recovery, must be executed by all thofe who were parties to the first deed, and were concerned in intereft, in order to render the first deed void; for if the second deed be only executed by fome of the parties concerned in intereft, and not by all of them, it will not avoid the first deed. § 18. Philip Stapilton being tenant for ninety-nine years, if he should fo long live, with remainder to trustees to preserve contingent remainders, remainder to his first and other fons, and having two fons, Henry and Philip; the father and fons, by deeds of leafe and release, dated the 9th and 10th September 1724, conveyed the premises to two perfons as tenants to the præcipe, for the purpose of suffering a common recovery, which was to enure, as to part, to the ufe of Philip the father for life, remainder to Henry the fon for life, remainder to his first and other fons in tail, remainder to Philip the fon for life, remainder to his first and other fons in tail, &c. There were covenants to fuffer a recovery within twelve months, and likewife for further affurances. Before any recovery was fuffered, Henry the fon died, leaving iffue Henry the plaintiff. Afterwards, by leafe and release, 12th and 13th April 1735, to which the heir of the furviving trustee, in the original fettlement of 1661 was a party, Philip the father and Philip the fon covenanted to fuffer a recovery of the fame premises, to the ufe (as to part) of Philip the father, his heirs and affigns; and as to the other part, to the use of Philip the father for life, remainder to Philip the fon in fee. In Trinity term 1725, a recovery was suffered, in which were the same tenant to the præcipe, the fame demandant and vouchees (except Henry who was dead) as were covenanted to be by the firft deed. It was likewife fuffered within twelve months after the execution of the firft deed. It was proved in the cause that Henry the fon, who died before the recovery was fuffered, was a baftard; and the queftion was, whether the fon of Henry was entitled to the premises under the declaration of ufes made in the year 1724? or whether that declaration was avoided by the fubsequent declaration in 1725? Lord Hardwicke.-The firft queftion in this cafe is, whether the lease and release of the 9th and 10th of September 1724, will amount to a good declaration of the ufes of the recovery, notwithstanding the subse quent deed of April 1725? I am strongly inclined to think that the leafe and release of 1724, will amount to a good declaration of the uses of the recovery. This question depends on the construction of law, and the authority of cafes upon the declaration of ufes. It is true, where there is an agreement to fuffer a recovery, 8 5 Rep. 25. is a recovery, and uses are declared, if the recovery afterwards fuffered, though it varies in point of time from the recovery covenanted to be fuffered; yet if there be no fubfequent declaration of ufes, the recovery will enure to the ufes fo declared; and before the ftatute of frauds, if the deed declaring the ufes had not been purfued, a parol declaration of the uses would have been admitted; but if there was a deed declaring the ufes, and the recovery was fuffered accordingly, that would, before the statute, have excluded a parol declaration of new ufes. But even now there may be a fubfequent declaration of other ufes, but that declaration must be in writing, and fuch a new declaration of uses depends upon the agreement of the parties: therefore though it was faid at the bar, that the declaration of ufes is in the power of the tenant in tail, and that he may declare new uses, I take that not to be law; for fuch fubfequent declaration of ufes must be by all the parties concerned in intereft; and in the case of the Countess of Rutland, it is not laid down that the tenant in tail may declare new uses, but it is faid, whilst it is directory only, new ufes may be declared; and the meaning of that is, that as the new uses must arise out of the agreement of the parties, the parties may change the uses, but that must be done by the mutual confent of all the parties concerned in intereft, and in that cafe it was a mutual agreement of all the parties. But in the prefent cafe, the fecond agreement not being between all the parties concerned in intereft, ought not to controul the first declaration, and efpecially as the recovery was fuffered within the time prefcribed by the the first deed, and between the fame demandant and tenant. § 19. A man and his wife, in the year 1692, made a mortgage of the wife's eftate, and covenanted in the mortgage deed to levy a fine of the premises in the Eafter term following. The fine was not levied till Trinity term 1695. Afterwards, but in the fame year, in confideration of more money, they joined in a conveyance of the equity of redemption, and covenanted that the fine which had been levied fhould be to the uses of this last deed. Lord Hardwicke said, he was inclined to think, as the covenant to levy the fine under the first deed was confined to a particular term, and was not levied till after that, the husband and wife might by the deed in 1695, covenant that the fine which had been levied, fhould be to the uses of the latter deed; and that the former deed in 1692 might be laid out of the cafe, as the covenant under it for levying the fine in Easter term was not strictly pursued. § 20. With respect to declarations of ufes executed after a fine has been levied or a recovery fuffered, the the principles laid down in Dowman's cafe, and Vavior's cafe, have been applied to them in modern times, as fully as they were previous to the ftatute of frauds. And in a modern cafe, a deed declaring the uses of a fine four years after it was levied was determined to to be good, the jury having found that the fine was levied to the ufes of the deed. Fleetwood v. Templeman, z Atk. 79. Declarations fubfequent. of Ufes made Bufhell v. 11 Mod. 196. Who may S 21. A. and B. his wife levied a fine, and four years after they, by deed, declared the ufes of it, in which were the following words-" All and every "fine or fines, levied or to be levied, fhall be to the "ufes of the deed." The question was, whether the uses of the fine were well and fufficiently declared by this fubfequent deed. Lord Chief Juftice Holt delivered the opinion of the Court, that the uses were well declared, the jury having found that the fine was levied to the uses therein declared. The court was alfo of opinion, that notwithstanding the ftatute of frauds, a fubfequent deed is now as good, as it was before that statute was made. § 22. It is now the ufual practice, where a fine is intended to be levied to uses, to execute a deed previous to the fine, in which the intended cognizor covenants to levy a fine and a declaration is inferted in the deed, of the ufes to which the fine, when levied, fhall enure. And where a recovery is intended to be fuffered, a deed is executed to make a tenant to the præcipe with an agreement to suffer a recovery, and a declaration of the ufes of the recovery is inferted in the deed. § 23. With respect to the perfons who are capable declare Ufes. of declaring uses, not only all those to whom the law, in other inftances, gives a difpofing power, are capa ble |