coke b the countess OF Rutland case Trin James in the king bench a seize in  fee by indenture limit the use of a fine subsequent to himself his wife and  his heir and by another indenture make afterward and before the fine levy the  use be limit to himself in tail both before the make the indenture and after  the fine levy a have declare that his wife shall have the land for her  jointure resolve I there shall be no averment against the indenture declare  the use of a subsequent fine c if the fine be pursue accord to the indenture  unless such other agreement or limitation of use be make by write or other  matter as high or high if the indenture be not pursue then averment without  write may be take though the indenture be not pursue in circumstance of time  quantity person c yet if no new agreement can be prove the assurance shall be  to the use in the indenture in the principal case the fine can be direct by  both the indenture SC moor cro James Isabel countess of Rutland bring a action  of trespass against Roger earl of Rutland for break her house and close call  Eykering house and lady park at Eykering in the county of Nottingham the  defendant plead not guilty and now this term on evidence to a substantial jury  at the kines bench bar the case on the evidence be such Edward earl of Rutland  be seize in fee of the manor of Eykering whereof the house and close in which  c be parcel and by indenture hear date of Mars Elizabeth for the augmentation  of the jointure of the say countess then his wife covenant with sir Gilbert  Gerrard Knt and Thomas Holcroft Esq his brother that he before the end of  Trinity term then next follow will assume by fine or other conveyance the say  manor to the say sir Gilbert and Thomas in fee which fine or other conveyance  of the say manor of Eykering shall be to the use of the say earl and the say  Isabel his wife for their life and the heir of the say earl which indenture  the say earl acknowledge before a master of the chancery the that day of the  same month and the same that it be enrol and the next day sure the that day of  march by another indenture between the say earl of the one part and the Lord  Burghley sir Gilbert Gerrard and other of the other part for the advancement  of those who shall succeed he in the earldom and for the advancement of the  heir male of the body of Thomas earl of Rutland his grandfather covenant with  the Lord Burghley sir pale yellow Gerrard and other to convey the say manor of  Eykering among other to the say ld Burghley sir g Gerrard and other or to some  or one of they before the Feast of the annunciate of our lady next follow  which assurance shall be to the use of the say earl Edward and to the heir  coke a male of his body and for default of such issue to the use of the heir  male of the body of the say Thomas earl of Rutland with diverse remainder over  and afterward the say Edward earl of Rutland by the say late indenture  covenant and grant with the party thereto that if the say earl Edward shall  not convey sufficient the say manor among other as be aforesaid before the say  Feast of the annunciation of our lady that then the say earl Edward and his  heir will stand seize of the say manor of Eykering to the say use contain in  the second indenture No fine or other assurance be levy or make by the say  earl Edward before the end of Trinity term and afterward sure September next  follow the say earl acknowledge a note of a fine of the manor of Eykering only  to sir Gilbert Gerrard and Thomas Holcroft and to the heir of sir Gilbert and  the that day of the same month acknowledge another note of a fine of the say  manor of Eykering among many other manor mention in the last indenture to the  Lord Burghley sir Gilbert Gerrard and other party to the last indenture and to  the heir of the Lord Burghley and both be enter in eight michaelis then next  follow and it be prove by diverse witness that the say coke report b er p earl  Edward as well before the indenture as after the fine levy tell they that the  say countess shall have the manor of e for her jointure and in this case four  point be resolve by sir John Popham chief justice and the whole court although  the indenture be make for declare of the use of a subsequent fine recovery or  other assurance to certain person and within a certain time and to certain use  be but directory and do not bind the estate or interest of the land yet if the  fine recovery or other assurance be pursue accord to the indenture there can  not be any bare   a   b Bulst palm Anders roll Rep winch   a averment against  the indenture take in such case that after the make of the indenture and  before the assurance by mutual agreement of the party it be conclude and agree  that the assurance shall be to other use but if other agreement or limitation  of use be make by write or by other matter as high or high then the last  agreement shall stand for every contract or agreement ought to be dissolve by  matter of as high a nature as the first deed bract lib f brown   a   b   b  Inst Davies b b nothing tam agreed be physical scientist quitati unumquodque  dissolve eastern bandage quo to tie be also it will be inconvenient that  matter in write make by advice and on consideration and which final import the  certain truth of the agreement of the party shall be control by averment of  the party to be prove by the uncertain coke b testimony of slippery memory and  it will be dangerous to purchaser and farmer and all other in such case if  such nude averment against matter in write shall be admit Vid Acc I Phil Ev  that ed and the case cite there and Vid Kain v old barn Cress SC dow Ry a it  be resolve that if the form of the indenture be not pursue as for the quantity  of the land or the time within which c in these case and other like where the  indenture be not pursue Cr James post b   a   a   a b and averment without  write may be take that the fine recovery or other assurance be to another use  or intent than be contain in the indenture for inasmuch as the indenture be  not pursue it be reasonable that the party shall be admit to show the cause  and reason why they be not pursue by reason of the new agreement subsequent  which in such case may be as well by word as by write Acc by Lord holt in  Jones v Morley salk by stat of fraud car c all declaration or creation of  trust or confidence of any land tenement or hereditament shall be manifest and  prove by some write sign by the party who be by law enable to declare such  trust or by his last will in write and by trust result by implication or  construction of law or transfer or extinguish by act or operation of law shall  be of the like force and effect as before the statute and by whether c after  recite that doubt have be entertain it be enact that all declaration or  creation of use trust or confidence of any fine or common salary manifest and  prove or which hereafter shall be manifest and prove by any deed already make  or hereafter to be make c after the levy or suffer of any such fine or  recovery shall be good Vid upon the construction of these clause foster v hall  vesey Randall v Morgan vesey and Sugdens note to Gilbert on use b it be  resolve that although the indenture be not pursuant in circumstance of time  quantity person and the like yet if no other new mean agreement can be prove  the assurance shall be in judgement of law to the use contain in the indenture  that in the principal case the fine can not be direct by both the indenture  that be to say by the first indenture to the use of the earl Edward and Isabel  his wife for their life and by the second indenture to the earl and the heir  male of his body with the remainder over limit by the second indenture and so  the coke report a er p fine to work upon both the indenture although  peradventure such be the intent of the party and that for three reason the  direction and declaration of the first indenture be control and frustrate by  the second indenture and therefore the fine can not be direct by both the  indenture import several distinct and diverse contract and estate that be to  say one to the earl and Isabel his wife and to the heir of the earl the other  to the earl only and to his heir male of his body with diverse remainder oh  for so that the fine ought for the manor of Eykering to be direct either whole  by the first or whole by the second without any fraction or division of estate  it will be against the word and intent of both the indenture to make a  hotchpot and commixture of both which by their creation be several and  distinct in time in person and estate Vid press cony p c case OF executor