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held that the uses in the second indenture stand unrevoked; and the new uses in the third indenture are void; and that H. B. ought to have the lands again out of the king's hands. The power in the second indenture is that he may revoke and limit new uses; and that the fine shall be to those uses and to no others. And then if there be a revocation and no punctual limitation, he had not pursued his authority, for he ought to revoke and limit; and he cannot do the one without the other. Also he said that after such revocation and limitation, the fine shall be such new uses, and no other. Then if there be no new uses well limited in the third indenture, the former uses shall stand void. [good.]'

This is the whole of the case, except a note made by the reporter.

I have added in brackets the words which appear to me called for by the sense, viz. no, instead of new, and good, instead of void. The report is indeed very imperfect, and in some parts so obscurely worded that it is not easy to give it a rational explanation.

It appears to me that Mr. Sugden has not correctly explained the opinions of the judges in this case. Bromley and Altham were of opinion that the uses declared by the third indenture were good, upon the ground that a power, coupled with an interest, to revoke and limit new uses, might be executed with a condition and reservation of a power of revocation upon such execution; and in such case the revocation and execution of the power might be toties quoties. That by the last revocation and execution of the power all the preceding limitations would be considered exactly as if they had never been made; and then the last appointees would be in under the uses originally reserved, to be limited upon the fine under the first indenture. The power to revoke being reserved in the intermediate executions of the power, would nullify, when exercised, all the limitations under such intermediate executions; and then the power to limit new uses would revive and take effect exclusively under the first indenture, in the same manner as if such intermediate executions had never taken place. This seems confirmed by Rolle in his Abridgment, (2 Rolle Abrid. 262, pl. 2) as the real law of the case, in the passage cited by Mr. Sugden in the text, (p. 317.)

Snig, Baron, on the other hand, was of a different opinion, and seems to have thought that under a power to revoke and limit new uses,

the

power could not be executed with a power to revoke the new uses so limited, unless expressly provided for by the first indenture. In the present case no such power

was reserved to declare three several uses by the first indenture; and therefore the uses declared by the third indenture were void. That the party could never be admitted by such an indenture to declare uses upon uses, and it would be mischievous to declare infinite uses upon uses.

He is also reported to have said that the revocation by the third indenture was good, and the limitation void, and then it doth descend to the use of R. B. in fee, and so by the death of R. B. to T. B. the recusant.' It is not easy to understand what is here meant, for no such use to R. B. in fee is reserved under any of the indentures; and therefore it would seem that he must have deemed that the revocation and limitation by the second indenture put an end to all the uses under the first indenture; and that the revocation in the third indenture put an end to the uses under the second indenture. So that all the limitations of uses under all the indentures being gone, there was a resulting use by operation of law, to the conuser (R. B.) in fee. I offer this only as a conjecture.

Tanfield, B. concurred in Snig's opinion, that the uses in the third indenture were void, but for very different reasons. He thought the uses in the second indenture stood unrevoked, because the power to revoke those uses was in the same indenture coupled with a power to limit new uses, and the power of revocation could not be exercised alone, but only in conjunction with the other. The power was to revoke and limit new uses, and that the fine should then be to those uses, and none other. So that if there was a revocation and no punctual (contemporaneous] limitation, the former was not pursued. And after the revocation and limitation, the fine was to be to the uses so last limited. So that if the last limitation was void, the revocation could not operate alone, but was not authorized by the former. It is true that the third indenture did limit new uses, as well as revoke the old; it did “revoke and limit'; but then Tanfield appears to have thought that there could by law be no good limitation of uses under the power reserved in the second indenture, because they were not expressly authorized to be made by the first indenture; and must take effect, if at all, out of the second indenture, which would be raising a use upon a use.

The uses then limited by the third indenture being void, the revocation thereby failed also. Lane, the reporter, seems so to have understood the opin

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VOL. IV.NO. VII.

ion of Snig and Tanfield. For he in his note to the case has made the following remarks: "And therefore it seems that all the uses, which shall rise out of the fine, ought to spring from the first indenture, which testifieth the certain intention of the parties in the leaving thereof; and then in the case above, the second indenture and the limitation of new uses thereby, are well warranted by the first indenture, and in respect that this is not a naked power only, I conceive that they may be upon a condition, or upon a power of revocation to determine them. But the power to limit the third uses by a third indenture, after revocation of the second uses in the second indenture, hath not any warrant from the first indenture; and without such warrant there can be no declaration of such new uses, which were not declared or authorized by the first indenture; which note for it seems to be good law.'

The error of the reporter, as well as of Snig and Tanfield, seems to have been, that they considered that the uses reserved under the third indenture, took effect out of the second indenture, instead of considering them as taking effect by way of substitution for the former uses, out of the first indenture.

Mr. Sugden seems to think that Tanfield's opinion turned on a distinction between declaring and limiting new uses. For myself I see no reason to impute such a distinction to the learned judge. He no wliere states it; and his opinion is perfectly explicable upon the other grounds already mentioned. From Rolle's account of the case, the ultimate opinion of Tanfield would seem to have coincided with that of Bromley and Altham. But it furnishes no ground to support the distinction suggested by Mr. Sugden. And I cannot but think that he has been led into an error on this point by the remarks of Mr. Powell, in his Treatise on Powers, on Becket's case. (Powell on Powers, 274 et seq.) I concur in opinion with Mr. Sugden that Mr. Powell has misconceived the grounds of Snig's opinion; and it seems to me that his observations on the whole case are loose, confused, and unsatisfactory. They furnish no key to the real opinions entertained by the court. Lord Hale, in Fowler v. North, (3 Keble, 7) in commenting on Becket's case, puts Tanfield's opinion on its true, or at least on a clear ground. He there said that · Tanfield held the first power executed, and a new power to limit uses could not be; and on this the court were divided.'

Mr. Sugden has next cited the case of Ward v. Lenthal,

(1 Siderfin, 343) and attempted to explain it. The case is shortly reported as follows: Upon a trial at bar in ejectione firmæ for lands in S., which belonged to Sir R. B., who had issue, one daughter only, who espoused Sir R. E., there were fines produced, and an indenture, which declares the use to Sir R. B. and his heirs male, and afterwards to several of his brothers and the heirs male of their bodies, and afterwards to the said daughter, &c.; in which indenture there was a power of revocation of those uses, and also to declare new uses; and a second indenture with a like power of revocation, but no power to limit new uses; and a third indenture of revocation of that, and also declaring new uses; which indenture declares [voet] that all other fines to be thereafter levied should be to those uses. And

ироп this it was urged by the defendant and also agreed by the court, (1.) That if an indenture declares the uses of a fine, and says further that it shall be lawful to revoke and to limit new uses, &c. the party may by such other deed revoke and limit new uses as often as he pleases, and all those estates shall be raised out of the fine: (2.) But if upon any such indenture, by which he so declares new uses (per que il issint declare novel uses) and reserves power of revocation, he does not also reserve power expressly to limit new uses; he can only revoke and cannot limit new uses by virtue of the estate raised by the first fine. And this they said had been before resolved

upon this same title of B. Upon which the counsel for the plaintiff showed another fine, which was of the term following the date of the last indenture, by which all agreed that the estates limited by the last indenture, were well raised. And afterwards the jury found for the defendant upon a point of notice, &c. express in the deed, viz. that notice was not given according to the deed.

The foregoing is a literal translation of the whole case.

Mr. Sugden seems to think that the second resolution of the court referred, not to the original indenture, but to a subsequent deed executing the power; and he seems to rely on the words per que, &c. as indicating a deed declaring the uses. Now admitting this construction to be right, and the report certainly gives countenance to it, it is difficult to perceive how it depends on the ground of decision in Hele v. Bond. In that case there was a power to revoke and limit, and it was executed by a deed which contained no power of revocation, and a subsequent revocation of that deed was therefore held invalid. But in the case in Siderfin, by the revocation of the second indenture, that indenture was completely gone, and the right to limit uses still remained under the first fine, exactly as if no deed had been executed; and so it was admitted by the court in their first resolution. I confess that I suspect an error in the report in Siderfin. But it is difficult to conceive, if that report be correct, how a reservation of a power to revoke in the second indenture, should have been less extensive in its effect than a power to revoke in the original indenture, leading the uses of the fine. And I do not find that the court intimate

any

distinction. And as to the decision of the court in their second resolution, I apprehend it would hardly be considered as law at this day, let the general question as to a power of revocation, including or not including a power of appointment, be decided one way or the other. For in the original indenture a power to limit new uses as well as to revoke the old, was given, and when the subsequent limitations were made and revoked, the authority to limit stood exactly as if no limitation had been made, and that to enable the party to limit anew it was not necessary to reserve in each limitation a new power to limit, but only to revoke. See Fowler v. North, 3 Keb. 7.

As to the doctrine of Twisden, J. in Smith v. Wheeler, 1 Mod. 37, it is but his single opinion, and in reference to the case before him (which is not very exactly stated in the report) it may be right. Certainly it is not entitled to be deemed a decisive authority.

In the case of Fowler v. North, 3 Keb. 7, there was a power to make a jointure, and a jointure was made subject to a revocation and afterwards a revocation was made, and a new jointure, which last jointure was objected to as not good, upon the ground that by the first execution of the power completely gone, and Becket's case was relied on. And the court said that the power may be executed quoties toties, and C. J. Hale said it was resolved before upon as great a settlement as any subject in England had, without any power to limit new uses, and in the Lady Hastings case, it was held that a new power and use might be limited, else most settlements on children would be defeated, which are often revoked and new settled. This is Keble’s report of the case.

It will be remarked that here was reserved an original power to settle

it was

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