coke a fitzwilliam case Trin James in the king bench see in re Hawkins qb  where a man be seize of land to he and his wife for life and the heir male of  his body a recovery in which he alone be vouch bar the entail where there be a  power of revocation by any deed or write and of appoint new use by any such  deed or write the revocation and appoint new use may be by the same deed if a  man bargain and sell land to another and his heir by deed indent and enrol  with proviso on such act do that the bargain and sale shall be void and  afterward the bargainer take wife and then the condition be break and before  entry the husband die the wife shall not be endow see Lucas Rep c salk c salk  c parliament case Mod SC Moore in trespass for break his close call Gamespark  in Essex by John fitzwilliam against William fitzwilliam Esq now knight on not  guilty plead the juror give a special verdict which be of great prolixity in  which case these point be resolve that whereas sir William fitzwilliam father  of the plaintiff and def be seize of the manor of Gamespark among other  videlicet to he and whether his wife and to the heir male of the body of the  father and afterward the father by deed indent and enrol bargain and sell the  say manor to one in fee who suffer a common recovery in which sir William the  father be only vouch and be vouch over the common vouchee sir William the  father and whether have issue the defendant the elder son and John the  plaintiff the young die it be adjudge that although sir William the father be  only vouch and not whether yet the estatetail be bar a Vid note d to  Winchester case Rep a a for the cause and reason allege in Cuppledicks case  pasch Elizabeth the three part of my report fol where the say recovery be to  diverse use declare by certain indenture videlicet to the use of sir William  the father for life and afterward to the use of the say whether for life and  six month after her decease and afterward to the use of William fitzwilliam  the defendant in tail and afterward to the use of the say whether and her heir  in fee with this proviso follow provide always that it shall be lawful to and  for the say sir William and dame whether at any time or time hereafter and  from time to time during their joint natural life at their free will and  pleasure by any their deed or write by the say sir William and dame whether  seal and publish in the presence of three credible witness at the least to  alter change determine revoke or make coke b void all or any of the use or use  estate or estate in these present before declare or mention or limit of the  same premise or any part of they and that at all time from and after such time  as the say sir I William and dame whether shall by any such deed or write S  express and declare their pleasure and mind to be to alter c that then and  from thenceforth such of the say estate and estate use and use herein declare  as shall coke report a er p be so declare to be alter c shall cease determine  and be void and that then and from thenceforth the say recovery and recovery  shall be and all and every person and person c shall thereof stand and be  seize to the use of such and those person or petsons and to and for such and  those use and use and in such manner and form as by such deed or write c as be  aforesaid shall be declare or limit only and not to any other person or person  use and use and afterward the say sir William and dame whether by their write  indent by they seal subscribe and publish in the presence of three credible  witness recite the say indenture the use and the say power do revoke the say  use and estate in tail limit to William fitzwilliam now defendant and the  remainder limit to dame whether in fee save the use and estate limit to  himself for his life the remainder to the wife for life and by the same write  declare that the say recovery shall be to the use of the say sir William  fitzwilliam for life the remainder to the lady whether for her life and six  month after and afterward to the use of John fitzwilliam the plaintiff in tail  and afterward to the use of sir William fitzwilliam the father in fee with the  like power of revocation as before and afterward sir William the father and  whether die and whether the revocation and new declaration and limitation of  the say new use be good and effectual in law be the question and it be strong  urge that the new declaration of use be not sufficient in law for two reason  because the revocation and limitation as this proviso be pen can be in one and  the same deed for in that three time be to be observe time to call again time  cessand old times use et time to disclose to make new use the act of  revocation ought to be by write seal and publish in the presence of three  witness and then come the second time videlicet and that at all time from and  after such time as sir William and whether by any such write so express and  declare c so that there be a distinction of time videlicet from and after such  time c the former use shall cease and after they be cease then follow the  three time and that then and from thenceforth videlicet after the time of the  cesser the say recovery shall be c to such use as by any such deed or write c  shall be declare and limit in which case by such deed which be as much as to  say per coke a hujusmodi or consimile scribe it ought to be like in all  circumstance as to be their joint write to be seal and publish as the other  but can be in the same deed for the first deed be finish when it be seal and  publish and after that nothing can be add to it for that by the publish be  complete and its time pass then after that time the time of the cesser ought  to pass and then come the time to declare new use so that it be not possible  that the declaration of the new use can be in the deed of the revocation but  it ought to be in another deed and it be much enforce by this word shall be  which be the future tense and thereby it appear that the revocation ought to  be pass before the new declaration shall be make for the word be shall be  declare or limit and it be say that these and the like powers by which the  estate or interest of stranger shall be change or charge shall be take strict  because they extend to the defeat or change of the estate of a d person and as  to that a judgement be cite Trin Elizabeth in replevin between see fitzg  leaper plaintiff and Richard wrath defendant where the case be h earl a roll  Brownl Leon Leon Leon Yelv roll Rep more cro James Poph raym latch Bridgm a of  Sussex convey the manor of Burnham in Essex to the use of himself for life and  afterward to the use of the countess of Sussex for life with diverse remainder  over with proviso that it shall be lawful for the earl to make lease for year  render c and afterward the earl videlicet April c make a lease of the say  manor for year to begin at the Feast of saint Michael the Archangel then  follow and although the power be general to make lease for year without be  restrain to make they in possession or any number of they but indefinite to  make lease for year yet it be adjudge that the say lease be void for two  reason l if by the say power he may make any b Cr James Yelv Brownl Poph roll  Rep vent Sugden on power b future lease or lease in reversion then coke report  b er p he may make a lease for year in possession and afterward infinite lease  for year in reversion which will be contrary to the meaning of the party and  then the express of one and twenty year be in vain and by such construction  the text and letter of the proviso will be idle and vain the second reason be  because forasmuch as this proviso give power to charge the estate of three  person with term of one and twenty year such proviso shall be take strict and  shall not be extend beyond the letter and meaning of the party and if I be  bind or contract with you to make a lease to you for one and twenty year  indefinite the lease ought to be make to begin present and not in c roll Rep c  going to be it be object that although ex indulgence law the law in diverse  case will in construction consider two distinct time in one instant which in  truth be not any time yet no case can be put that by any construction three  time may be admit in one instant and therefore it be say that this coke b case  differ from dig case publish by I in the first part of my report f for there  be but two time which well stand with the learning of instant and with the  case of the fine there put but put the case there be three conusors of a fine  and that the conusee render to one of the conusors for life or year a rend and  grant the reversion to another of the conusors for life or year render rend  and by the same fine grant a reversion in fee or in tail to the three conusor  it be say that such fine shall not be receive b Mr Preston observe in his  edition of the touchstone p that the objection against this concord be not  obvious nor easy discoverable b because that a instant can be of more than two  time it be say that in dig case the use be raise by covenant out of the estate  of the covenantor which may be more easy determine again in his possession  than when use be raise out of a recovery by which there be a transmutation of  possession and all the estate divest out of he who limit and declare the use  but it be answer and resolve by the whole court that the ancient use in the  case at bar be revoke and the new use well declare in the a more hob   a   a  keb side winch   light a roll hob Sugden on power a same deed for first in  judgement of law there be not in this case but two time concurrent in one  instant videlicet the time of the cease of the former use and the declaration  of the new for although the revocation and the cease of the former use be  distinguish in word yet in truth they be one for the use which be revoke cease  and the use which cease be revoke it be resolve that although no use cease  till the write of revocation be seal and publish and after ten seal and  publication thereof nothing can be add to it yet it well stand with the word  of the proviso and the intention of the party that the new declaration may be  in the same deed for both be contain in one and the same write first its  operation shall be to make a destruction of the former and eastern instant a  creation of the new use and this word such more proper extend to the same  write in which the revocation be than to another for by such write be as much  as to say per idem well hujusmodi scribe and so it shall be take in ill be  case and this word shall be shall be say future in respect of the indenture  and in judgement of law subsequent also to the revocation and although these  clause be contradictory and ex a diameter pugnant for the one destroy and the  other create yet the construction of the law which delight in make  reconcilement make a good accord betwixt they for to the intent that the new  use shall be create the law adjudge that the clause of destruction shall have  the b   a b b b priority although both be contain in one and the same deed and  take effect by one and the same delivery c this be not the only instance in  which the law adjudge priority in Barker v keel Freem north CJ say he have  know it rule several time that a lease and release in the same deed be a good  conveyance for priority shall be suppose and Vid   light a a case in which  priority of time in a instant be allow for the sake of save the remainder in  fee of a rend from the effect of a suspension of the particular estate and Vid  vin ab time a Collingwood v pace Bridgm c and as to the difference as to cease  of the estate move in coke report a er p dig case where the use be raise by  covenant and this case where the use be declare upon a recovery it be coke a  resolve that it be all one when he who make the revocation be seize or possess  of the land for the reason and cause give in dig case for it be agree in that  case that the best construction of the statute of h of use be to make they  subject to the rule of the commonlaw which be certain and well know to the  professor of the law and not to make they so extravagant that none shall know  any rule to decide the question which arise upon they which will produce  uncertainty the cause of infinite trouble controversy and suit which agree  with the resolution in a   light a a Dillon and Freins case in the first part  of my report fol b and in buller and baker case in the three part of my report  fol and in Cholmeleys case in the second part fol where it be resolve that  although use at the commonlaw may have cease without claim yet now the use be  transfer to the possession for the plead be vigor to cause to stand c de  usibusin possess to bear so that now after the statute to such b   b a   b a    light a b quality to which estate at the commonlaw be subject to such quality  use after they be transfer into possession be subject for the use be transfer  and incorporate in the possession which agree with the resolution in this case  and on the same reason it have be adjudge that if a man bargain and sell his  land to another and his heir by deed indent and enrol with proviso that if  such act be do that the bargain and sale shall be void and afterward the  bargainer take a wife and afterward the proviso be break before entry the  husband die and it be adjudge that the wife shall not be endow for although  the estate of the bargainee vest by the statute of h by execution of the  estate of the land to the use raise by the bargain and sale yet forasmuch as  the husband do not reenter he have not any estate in the land whereof the wife  may be endow notam