case Shortridge against LAMPLOUGH enter in c b Michaelmas term will roll in b  r Trinity term will roll if a reversioner bargain and sell the land lease and  then release his interest in the reversion such release shall be intend to be  to the use of the releasee and his heir although no consideration be express  for the release nor any express use limit thereon SC salk SC salk SC holt SC  ld ray SC Lutw error of a judgement in the common plea in a action of covenant  upon a deed of the lessee bring by the assignee of the reversion the covenant  be to build several house on the premise the case be this Thomas Ashley seize  of the reversion of the land lease do bargain and sell the same to John  Griffiths for a year in consideration of five shilling in hand pay and  afterward release all his right title and interest in the reversion to John  Griffith and his heir but do not show that there be any consideration for the  release or that there be any express use thereon limit it be urge by the  defendant that the release must have enure to the use of the releasor and by  consequence the plaintiff have no title to the reversion and by consequence  not to this action and for this cause there be a demurrer to the declaration  and a judgement for the plaintiff and a writ of enquiry execute and final  judgement in the common plea and a writ of error be bring Raymond for the  plaintiff in errorAfter use come to be practice in the time of Edward the four  and Henry the six during the quarrel of the family of York and Lancaster and  all along until the time of Henry the eight the state of the land and the use  be two several thing and one may divest himself of the estate and keep the use  or vice line or give the estate to one and the use to another and if he have  make a conveyance of his land without a consideration or any express use limit  the conveyance be to his own use and this be the law until Henry c as appear  both by practice and the authority of book the question then will be what  alteration the statute of Henry the eight have make the intent of that statute  be to destroy use by draw the possession to they and not they to the  possession so that since that statute the use draw the legal estate to it see    Bl sander on use a if a man at this day make a feoff in fee to another and  his heir general without declaration of use or consideration it shall be to  the use of the feoff so of fine or recovery and all other conveyance vide dyer  in point in the case of a feoff for he say if there be no consideration modern  appear or use express upon a feoff it shall be intend to be to the use of the  feoff see roll Abr cro James castle v Dodd   latch in recovery palm   light b  when one make a feoff to particular use so much of the use as be do not  dispose of remain in he as his old use and be say that there be no difference  when there be particular use limit and no use at all for what draw the use out  of feoff it be either the consideration or the express it to be to the use of  another and that reason hold in both case whether of a general feoff or a  feoff with particular use in the case of Godbold v freestone lev a hold that  there be no difference between where one seize in right of his mother make a  feoff in fee modern er p to the use of himself and his heir and where he make  it general without limit any use for that in both case he shall be in of a  estate descendible to the heir of part of the mother for in both case the old  use remain still in he and the same rule will hold in this case of a release  without any consideration or express use the old use will still remain and be  in the releasor because the use and estate be distinct and though the estate  pass the use do not without a consideration or express limitation of it and  they be as much distinct thing in a release as in any other conveyance and the  precedent be that when a release be plead there always mention be make of a  consideration or express use sand vent   Ent b there be indeed many case where  they be not so plead but they pass sub silence and therefore not to be regard  special be against the reason of the law in the case of Edward v Morgan lev c  covenant be bring by a assignee of a reversion to which grant the tenant  attorned for nonpayment of rend and the book say that judgement be stay for a  apparent fault in the declaration because it be not say to who use the  reversion be or any consideration of the grant mention and this he rely on as  a authority in point but note the case in the book mention the grant to have  be upon consideration mention in another deed which deed not appear be  consider as if there have be no consideration at all and then it appear to be  the intent of the party that there shall be a consideration which not be it  can be think that his intent be to pass it without any consideration modern it  be object that a release enures by way of enlargement of estate and a lease  and release make but one conveyance in law so that there be a consideration  that shall run through and be communicate to the estate enlarge but in answer  sure they be distinct conveyance the one operate by the statute of use the  other by the commonlaw they be indeed so far one conveyance that the whole  estate passes by they both and the estate for year be merge and go by the  release come upon it be to the same person but indeed if the release be to the  use of another or return back to the releasor the estate for year will not be  merge because of the save in the statute of Henry c save right of other person  well contra he agree that in all sort of conveyance if there be not a  consideration or use express or necessary imply the use shall remain in the  conveyancer and shall draw back the estate to it see Lloyd v spillet bar e r a  the intent of the party be most to be consider in the raise of use and  therefore if there be but a penny pay by he to who the conveyance be make it  will raise the use to he without any declaration not so much for the  consideration as that the payment of the penny show the intent of the party to  be that he who give the penny shall have the use see salk holt Rep more dyer b  for there can be no reason why a man shall give even the least sum of money to  another to make a conveyance of his estate to have it back to himself again so  if a feoff be with intent to make one a tenant to the praecipe to have a  recovery suffer against he the tenant to the praecipe shall modern have the  estate to his own use otherwise he can not be right tenant to the praecipe to  have a recovery suffer against he and the design of suffer the recovery be the  intent of the party at the time of the feoff nothing passes by a release to  the lessee in possession but by way of enlargement of the estate of the lessee  for it do not operate to give a new estate of the reversion but to increase  the estate in possession accord to the word of it so it do not work by merger  of the first interest but by enlarge of it but it be true that after the  release the lease do not exist distinct from the estate by the release for  though it do not continue as a term yet it be part of the interest that be now  have in he by the release for it be not like a grant to a particular tenant by  he in reversion which drown the particular estate so that if the release  enures only to enlarge the estate the interest enlarge must be to the use of  lessee for year or it can be say to be modern er p a increase of it and indeed  if the practice have not prevail to the contrary it be very odd to limit the  use of a release to any but he who have the lease it be for that we find the  clause in lease on which the party intend to build a release that the intent  of the lease be to pass a estate by release upon it for the benefit or use of  a three person it will be absurd to say that my conveyance shall have no other  operation but to extinguish or merge the estate that the grantee have already  to have it bring back to I and what need can there be of such a way if the  party have any such intent it may be soon do by surrender if it have be  express in this deed that he have already make he a lease for year and that  for the enlargement of that estate he make this release there have be no doubt  but that the release be to his use and there be no difference between the case  since this release in its own nature enures by way of enlargement beside here  be also a valuable consideration for the lease and release be but one  conveyance the five shilling that be the consideration of the lease shall be  participate to the release and also the acceptance of the release be in its  own nature a release for it imply a alteration of the estate of the lessee  which to consent modern to be a consideration move from lessee and the only  motive of the lessee part with the old estate be to get a new one he who take  a release by way of enlargement of estate must not only have the interest but  also a privity of estate between he and the releasor if a make a lease to b  and he make a underlease over and a release all his right to the underlessee  and his heir it be void as to enlarge the estate for want of privity   light a  a so that it be a privilege inseparable incident to he who have a privity in  estate to be capable of a release of enlargement and that be so for the  benefit of releasee Raymond say the first lease can not be say now to have  continuance for after the lease if the lessor before the lease have suffer  judgement and release the judgement will have attach before the release holt  chief justice the question be whether the statute of Henry c have alter the  ancient way of plead for this manner of plead be good before the statute  without doubt and it appear by many precedent since the statute that this way  be use even in the case of a feoff and it be think sufficient to allege the  estate in the feoff without any more a feoff in fee be plead army pron   interrog  he be seize without any more ado Plowden b and so there be many  other case since the statute in coke entry though there be no consideration or  use express yet it do not follow that it be to the use of the feoff for that  be matter of fact extrinsical to the deed if since the statute of because  buyer the earth a feoff be make by modern deed without consideration or use  declare in the deed yet the use may be declare by parole until the statute of  car c of fraud and perjury and even since that statute it may be declare by  write only without seal now for we to construe a deed to be to the use of  feoff when it may be to the use of feoff for anything that appear will be very  odd therefore we shall intend it to be to the use of the feoff if no more  appear and if it be not so it ought to come on the side of the feoff or  grantor by averment that there be no use limit to the feoff that be to confess  the feoff when it be plead but to avoid the effect of it by averment and  especial in case of a feoff or release to a feoff or a relessee and his heir  without limit any particular use for if it be not take to be to the use of  feoff or relessee the conveyance can be of any use at all for it can be think  that one will be at the trouble and charge of any of these conveyance to be  seize just in the same manner as he be before and of the very same estate for  if he have a warranty to the first estate be shall have advantage of it if he  shall be implead for the result estate if he be seize as heir of the part of  the mother before he will be so after but before the statute of Henry the  eight such conveyance may be of some use though no use be declare upon they  videlicet to cheat the lord and hinder tenant to praecipes from be know c but  now it can be intend to have be to any other purpose but to pass the use and  estate where there be no alteration make and therefore it shall be intend to  the use of the feoff c if the contrary be not show on the modern er p other  side by averment and the authority in coke upon Littleton do not contradict  this for it say where there be a feoff in fee make and some particular use  limit so much of the old use as be not limit over remain in he as his old use  for there it appear by limit the particular use that the feoff be make to  another person than to grant a estate to the feoff to wit to raise the  particular use but where there be no reason appear it shall be intend to the  use of the feoff if the contrary be not make out on the other side Powell  justice ad idem and he say that he be not satisfy that the nature of the  conveyance will admit of a result use for though it be a conveyance much use  now to raise use upon to a three person by express word yet in strictness  modern it be a commonlaw conveyance and if a lease be make for forty year and  a release thereupon without consideration or limit of any use sure it can be  intend to be to the use of the lessor for the very extinguish the estate of  the lessee be a good consideration and suppose it be a confirmation sure it  will be the same but the chief justice and be say that if there be a  particular use limit on the release the rest will result back gold justice say  that he himself have take the like exception in the common plea in the case of  Reginald and bishop of London v Pratt will roll a but be overrule by the whole  court and be quote light foe Vaughan light the judgement be affirm Raymond far  take exception to the writ of enquiry for be say there be a variance on which  the judgement be and that recite on the writ of enquiry and therefore it can  be a fight of enquiry nor a writ of enquiry for their judgement the writ of  enquiry do not set it out in haec word but by way of recital and then it  recite all in the present tense instead of the preterperfect as it ought and  they give damage to the testae of the writ of enquiry when there ought to be  enquiry to the time of the action bring and he compare it to the case of sand  where the verdict give damage for loss of service after declaration bring and  for this the judgement be reverse see hob and the case of pierce v melt in  Trinity term will show ld ray b holt chief justice you will have the writ of  enquiry bad because you say it give damage to the testae thereof when it shall  only be to the time of declaration or bill the writ direct the sheriff to take  inquisition what damage the the plaintiff have by virtue of the breach of  covenant and not for the house be out of repair at the time of the action  bring suppose the house be out of repair at the time of the action bring and  become more out of repair before judgement and writ of enquiry the jury that  inquire ought to give the party not such damage as will put they in repair at  the time of the action bring but such as will be enough to put they in repair  at the time of the enquiry