case herring against brown if one of two tenant in common make a settlement  with a power to revoke the same by deed indent and sign by two witness a fine  levy and a deed indent sign by two witness though make ten day after the fine  levy declare the use of the new fine different from those in the settlement  with intent to make partition be a good execution of the power for the fine  and the deed shall be consider as one conveyance SC vent SC Carth SC skin SC  comb ejectment on a special verdict the case be a and b be tenant in common a  make a settlement with a power of revocation by deed indent and sign by two or  more witness a levy a fine and afterward by deed indent shower KB sign by two  witness he declare the use of the fine new and different from those of the  settlement and the jury find the fine to be levy with a intention to make  partition between a and b and to the use declare in the new indenture the  question be whether this be a good revocation or whether the fine be a  extinguishment of the power Mr Bonython for the plaintiff argue that the  revocation be good for that if by a deed circumstantiate accord to the power  new use be declare it shall be a revocation though there be no mention make of  a intention to revoke and it will alter they though the deed be upon another  consideration a and here it be find that the fine be levy with a intention to  make a partition and to the use of this subsequent indenture a indenture  subsequent to a fine will declare the use of it b then in the case of Nixon v  Garrett in this court c the deed be first and the fine afterward and adjudge  that the deed and fine be a execution of the power though the deed alone have  not be a revocation yet both together make it so d Mr holt e contra the fine  and deed subsequent can be a revocation accord to the power for first consider  the fine alone and what relation it have to the power of revocation the fine  be levy before the deed and no deed be at the time of levy the fine it produce  two effect first it be a forfeiture of his estate for life he be but bare  tenant for life and a immediate right be give to he in remainder second it be  a extinguishment of the power for by virtue of the fine the power of  revocation be go as be the case Albany v Grendon e and Diggs v palmer f and as  to the intention of the party that be nothing for a intention be a scroops  case   Kibbit v lee hob b Downmans case   and more Cromwell case   Albany case    digby case   Bulst and and c in it Trinity term car roll in the king bench  report tinder the title of Wigson v Gerrard raym lev skin vent and keb d see  Owen v Mannington and e   SC more viner Abr e   SC more Hugh Ent shower KB er  p not to be pursue by illegal mean in sir moil Finchs case g the severance of  the demesne there be but for a instant shower KB and the intention of the  party be otherwise and when once there be a forfeiture it can never be  retrieve   light so that here be a time when there be no power leave there can  be no pretence put on scroops case h because there be new use raise but this  deed do not raise the use they be raise before the deed be only to declare  they in the case Atwaters v but I if a man once levy a fine he can limit any  new use but what be raise by the fine the deed itself do not raise or pretend  to raise any new use but only recite a fine levy to the use of sir John  William and his heir king in the case of Nixon v garret at the time of the  deed there be a power extant in be but otherwise in our case Adjournatur  William in Trinity term follow argue for the plaintiff that a power of  revocation be always favourable take for the person who estate it be hob if  there be any inconsistency between the first estate and the last though there  be no word of revocation yet it will be so I confess that circumstance and the  form of the power must be observe this power be as general as any whatsoever  if the old deed be determine then there be no need of any more the mean  remainder be destroy by death without issue and if the last be destroy there  be a plain title for we have there be no fine in this case the deed execute  accord as the power of revocation require will have be sufficient for we this  be a case of construction and every one may apprehend that he intend this fine  as a execution of his power and I take it all but as one assurance and the  fine but a part of it now to construe part a extinguishment and the deed  afterward to be a revocation be somewhat strain the deed be between the same  party and of the same estate and it be a common practice to acknowledge a fine  and afterward at leisure to execute the deed of use and it be find express  that the fine be levy for the make of partition and also to and for the use in  the deed mention and that this shower KB be the meaning of the party and  likewise find negative that there be no other use of the fine objection take  the fine apart and it be a extinguishment but I answer they be not distinct  but the same assurance objection when a power of revocation be once extinguish  it can never be revive but I say it be not extinguish and be but one  conveyance the intent govern both objection a subsequent deed can raise a use  though it may declare one I conceive it may the intent of the fine be to this  purpose however it be not necessary it shall be so observe the consequence of  this if it be a extinguishment then it be a forfeiture in dolman case m there  be no special find of the intention of the party as there be here if a man  agree to levy a fine the use may be declare by word of mouth the fine be the  superior act and draw the deed to it the agreement be the thing the intention  govern all then he cite the earl of Leicester case between Nixon arean garret  there be a power of revocation the earl covenant to levy a fine to other use  and afterward the fine be levy and there sir William Jones argue as they do  now in this case but rule however to be a revocation if this fine have be  general perhaps it may have be a extinguishment the court perhaps may have  construe it so but here be a intention find to limit new use Mr sander e  contra for the defendant it do appear that at the first they be tenant in  common in fee and that the fine be levy to make a partition and I hope your  lordship will not construe it so and if this be not construe a partition then  all sir John williams statute and recognizance will bind a moiety of the other  estate still the common way be to levy a fine to trustee and to declare the  use several and it be doubt whether they can do otherwise by the commonlaw  they g   SC Leon h   skin I cro Elizabeth king roll Abr dyer m   Hugh Ent and  shower KB er p be not compellable to make partition and they be seize of  several freehold and one will not pass to the other without livery so that  here be a partition make then shower KB I conceive here be no revocation for  by the fine be there no more in the case this power will be extinguish here be  a fine levy and a time when there be no deed and how be it then suppose sir  John have a estate great than for his own life and have then die before any  deed make the power have be go in the earl of Leicester case the deed be  precedent and pursuant to all the power of revocation while the party have his  power not extinguish if there have be no deed make there have be the same use  as now the fine be levy by sir John William to the use of himself and his heir  and yet without such deed it will have be no revocation in Dowmans case they  say that a declaration of use may come after a fine and be sufficient if there  be no mean estate or interest to be defeat relation or fiction be always to  uphold a right and never to defeat one n if they will have it as one  conveyance they can have it only as relate and suppose to be make at the time  of the fine and where will they terminate at what time a deed shall relate if  six month it may be seven year after and suppose it so yet accord to they it  shall relate to make but one common conveyance here be the case of bury v  bowyer oh whether a assignment of land by commissioner shall pass only from  the enrolment and not from the deed for there be no time limit when it shall  be enrol it may be enrol some year after and yet relate to the deed which they  will not allow of they rely much upon the intention of the party and I agree  it to be of weight but there be not one word or syllable that it be the  intention of the party to revoke the use but only to have a fee and the fine  wrought that as much without the deed as with it if this deed shall work by  way of revocation it be all one whether he in remainder have enter for a  forfeiture yea or no for this relation will have divest he the Lord chief  justice you can say he do not intend to revoke when he do intend to limit new  use Adjournatur shower KB sir Francis winnington in Michaelmas term follow  argue it again for the plaintiff much to the same effect with the former but  insist more on the law of relation and say that if the fine and deed be to be  construe separate then it will be against we the true intention of the party  be to make but one settlement the law make a strain to follow the intention  but never to destroy it he cite sir Roland Haywards case p the judgement ought  to be upon the entire Act Cesar v brook Q if a deed of feoff be at one time  and livery at another yet all shall be construe together as one act it ought  to be reckon but as one assurance for it be no more r in some case the law  will find out a intention to make a conveyance good as in the case of Colgate  v blithe S and Lord Cromwell case t and the case of Snape v Turton u the law  will not judge by parcel but after all the Act be do the law will judge and  make construction upon the whole Mr pollexfen e contra I agree that to make a  revocation they need not mention or take notice of the power but a conveyance  to contrary use will amount to a revocation the fine of itself have none of  the qualification mention and require in the power it be the fine alone that  make the conveyance the deed be not part or parcel thereof and convey nothing  these use do and must arise at the time of levy the fine and can not arise in  going to be it can be suspend in any sort the use of a fine require neither  deed nor parole to raise it it be true the jury have n   roll Rep oh benis v  bowyer ante page pl p   SC Poph SC Anders Q Trinity term James in Hugh Abr  title will r yearbook Henry S Anders SC   under the name of beckwith case SC  more SC Leon SC Gouldsb SC Leon t Cromwel v Andrews   SC more SC jenk SC  Anders SC Savil and   light u cro car SC Jones SC roll Abr shower KB er p find  that the fine be levy to the use in the indenture which make neither one way  nor other if it have any influence it will be for we videlicet that at the  time of the fine these use be raise and the intention govern all the jury have  find the same and so it be by their find a perfect conveyance at that time now  a fine to such use be no revocation and the jury have not find that the party  at the time of levy shower KB the fine do intend to make such a indenture but  only that the fine be to such use Dowmans case wonder when a recovery be have  the party can declare a use ex post facto and if there have be the word then  it will have be all void all that be subsequent be but a recital of their  think suppose there have be only a parole declaration will that have do it the  conveyance be full end before this deed come the use must arise then it can  arise by this deed which can not speak before it be make a second reason that  I observe in this case be that the fine have destroy this power suppose that  after the fine levy and before the deed sir John William have make a deed and  express revoke these use and afterward have by deed declare the use of the  fine your lordship will have construe this deed of express revocation to have  be void now if after this fine he can not express revoke how can he then by  implication and construction make a revocation in dig case ten there be two  thing considerable first by the destruction of the estate the power of  revocation be go second if there be two thing requisite to execute the power  and between these two thing come a fine the power be destroy a three reason be  this that there be no time limit how long after he may declare use then accord  to this he may do it at any time during his life in dyer that it be four year  after the fine now what a mysterious consequence this may have suppose he in  remainder have enter for a forfeiture and make conveyance and settlement all  the counsel in England will have reckon they good the fine be no revocation  but rather a extinguishment and yet after all this here may be a declaration  of use and so a revocation beside here be no case where the estate of a  stranger be concern that deed and act shall be construe to relate to destroy  such estate here the estate of those in remainder be so then for a man to  forfeit his estate and afterward by his own act to avoid or defeat the  forfeiture be hard to suppose lady Baltinglasse v temple z she be tenant  shower KB for life suffer a recovery this be a forfeiture and although she  afterward reverse this recovery by writ of error yet it continue a forfeiture  relation shall never work a wrong for the case of Nixson v garret a it be  nothing to the purpose for the deed be precedent and the deed raise the use of  the fine and the fine though it convey the land yet it do not raise the use  the deed do it in we it be quite contrary by the fine here be a perfect  conveyance and here be the estate of the conusor destroy before the deed come  and the interest of the remainderman to enter be vest before the deed come and  that itself be a new case although I question not the law thereof yet they  then take a difference between that use and this both bar and bench do so now  when they of the other side say it be one conveyance I know not what they mean  the deed after be no conveyance nor part of it it be only the put into write  on parchment the use which the fine raise by way of memorandum all their case  be where there be two part to be execute and one be do before the other there  it shall relate because that which be do be imperfect but what be all that to  our case where the conveyance be perfect before in Cromwell case b which they  so much insist on they be conveyance make between the party and none of they  affect any stranger as in this case it do here be somewhat come afterward  which be no conveyance nor part or parcel of the conveyance all the discourse  about fraction be wide from the point wonder dolman v vavasor more SC I Anders  but see Dowmans case   hughes Ent lily Ent ten   more hughes Ent that bassett  case dyer z Freem a ray lev skin vent and keb b Cromwell v Andrews   more jenk  ander Savil   light shower KB er p the Lord chief justice suppose that after  the fine there have be a attainder of treason and after that a deed suppose a  man levy a fine and then marry and then declare the use in hind case c a  bargain and sale and then a fine and then enrolment if the bargain and sale  and fine be but one conveyance all will pass by the fine Adjournatur it be  argue again afterward by the same counsel upon the death and change of judge  and afterward shower KB in Lord jefferies time by Mr solicitor general and Mr  sergeant Pemberton d