Imágenes de páginas

3 Rep. 81.
1 Roll. Abr.

The transfer ring of uses.

1 Rep. 121. 129.

Thir extinguish

14 H. 8. 1.

H. VIII. and 28 H. VIII. and divers other books; | Glanvile, justice, said, that he could never find, which prove that if the feoffee sell the land for neither in book, nor evidences of any antiquity, good consideration to one that hath notice, the a contingent use limited over to a stranger; I an

purchaser shall stand seised to the an- swer, first, it is no marvel that you find no case cient use; and the reason is, because before E. IV. his time, of contingent uses, where

the chancery looketh farther than the there be not six of uses in all; and the reason, common law, namely, to the corrupt conscience no doubt, was, because men did choose well of him that will deal with the land, knowing it in whom they trusted, and trust was well observed; equity to be another's; and, therefore, if there and at this day, in Ireland, where uses are in were radix amaritudinis, the consideration purgeth practice, cases of uses come seldom in question, it not, but it is at the peril of him that giveth it: except it be sometimes upon the alienations of so that a consideration, or no consideration, is an tenants in tail by fine, that the feoffees will not issue at the common law; but notice, or no notice, be brought to execute estates to the disinheritance is an isue in the chancery. And so much for the of ancient blood. But for experience of conpreserving of uses.

tingent uses, there was nothing more usual in 3. For the transferring of uses there obits than to will the use of the land to certain

is no case in law whereby an action persons and their heirs, so long as they shall pay may be transferred, but the subpæna we see in the chantry priests their wages, and in default of case of use was always assignable; nay, farther, payment, then to limit the use over to other peryou find twice 27 H. VIII. fol. 20, pla. 9; and, sons and their heirs; and so, in case of forfeiture, again, fol. 30, and pla. 21, that a right of use through many degrees; and such conmay be transferred; for in the former case Mon- veyances are as ancient as R. II. his tague maketh an objection, and saith, that a right time. of use cannot be given by fine, but to him that 4. Now for determining and extinhath the possession; Fitzherbert answereth, Yes, guishing of uses, we put the case of tent of uses. well enough; query the reason, saith the book. collectoral warranty before ; add to that, the nota

And in the latter case, where cestuy que use was ble case of 14 H. VIII., Halfpenny's infeoffed by the disseisor of the feoffee, and made case, where this very point is in the a feoffinent over, Englefield doubted whether the principal case; for a right out of land, and the second feoffee should have the use. Fitzherbert land itself, in case of possession, cannot stand said, “I marvel you will make a doubt of it, for together, but the rent shall be extinct; but there there is no doubt but the use passeth by the feoff- the case is, that the use of the land and the use ment to the stranger, and, therefore, this question of the rent may stand well enough together; for needeth not to have been made.” So the great a rent charge was granted by the feoffee to one difficulty in 10 Reginæ, Delamer's case, where that had notice of the use, and ruled, that the the case was in effect, there being tenant in tail rent was to the ancient use, and both uses were of a use, the remainder in fee, tenant in tail in esse simul et semel; and though Brudenell, made a feoffment in fee, by the statute of 1 R. chief justice, urged the ground of possession to III. and that feoffee infeoffed him in the remain- be otherwise, yet, he was overruled by other three der of the use, who made a feoffment over; and justices; and Brooke said unto him, he there question being made, whether the second thought he argued much for his plea- Dizzer's case, feoffee should have the use in remainder, it is sure. And to conclude, we see that well said, that the second feoffee must needs things may be avoided and determined by the have the best right in conscience; because the ceremonies and acts, like unto those by which first feoffee claimeth nothing but in trust, and the they are created and raised: that which passeth cestuy que use cannot claim it against his sale; but by livery ought to be avoided by entry; that the reason is apparent, as is touched before, that which passeth by grant, by claim; that which a use in esse was but a thing in action, or in suit passeth by way of charge, determineth by way to be brought in court of conscience; and whether of discharge; and so a use which is raised but the subpæna was to be brought against the feoffee by a declaration or limitation may cease by in possession to execute the estate, or against the words of declaration or limitation, as the civil feoffee out of possession to recontinue the estate, law saith, in his magis consentaneum est, quam always the subpæna might be transferred; for ut iisdem inodis res dissolvantur quibus constistill the action at the common law was not stirred, tuantur. but remained in the feoffee; and so no mischief For the inception and progression of of maintainance or transferring rights.

uses, I have, for a precedent in them, and progress of And if any use being but in right searched other laws, because states

may be assigned, and passed over to and commonwealths have common accidents; a stranger, a multo fortiori, it may be limited to a and I find, in the civil law, that that which stranger upon the privity of the first conveyance, cometh nearest in name to the use is nothing like as shall be handled in another place; and whereas in matter, which is usus fructus; for usus fructus

Co. Lil. 237

I Rep. 174.

The inception

Chilb. v.

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First, in the civil law, Contra Sigon.

The causes of

1. cap. 5.

Inst. 1, 2. Tit. 2.

lib. 5. tit. 3.


First, in course
of common law,


Second, in our law.

et dominium is, with them, as with us, particular remedy against the feoffee was but by the subpæna ;

tenancy and inheritance. But that and the remedy against strangers to the feoffee by

which resembleth the use most is, subpæna. de Judiciis, lib. fidei commisseo, and, therefore, you Now for the causes whereupon uses

shall find, in Justinian, lib. 2, that they were put in practice: Master Coke, in them. had a form in testaments, to give inheritance to his reading, doth say well, that they were proone to the use of another, Hæredem constituo Caium ; duced sometimes for fear, and many times for

rogo autem te, Caie, ut hæreditatem resti- fraud. But I hold that neither of these cases Domai , tom. 3. tuas Scio. And the text of the civilians were so much the reasons of uses, as another rea

saith, that for a great time, if the heir son in the beginning, which was, that the lands did not as he was required, cesluy que use had no by the common law of England were not testaremedy at all, until, about the time of Augustus mentary or devisable; and of late years, since the Cæsar, there grew in custom a flattering form of statute, the case of the conveyance for sparing of trust, for they penned it thus: Rogo te per salutem purchases and execution of estates; and now, Augusti, or per fortunam Augusti, &c. Where- last of all, an express liberty of will in men's upon Augustus took the breach of trust to sound minds, affecting to have assurances of their esin derogation of himself, and made a rescript to tates and possessions to be revocable in their own the prætor to give remedy in such cases; where- times, and irrevocable after their own times. upon, within the space of a hundred years, these Now for the commencement and pro- Their com. trusts did spring and speed so fast, as they were ceeding of them, I have considered mencement and forced to have a particular chancellor only for what it hath been in course of common uses, who was called prætor fidei-commissarius ; law, and what it hath been in course of 2. bacres 1o. and not long after, the inconvenience of them statute. For the common law,

the conbeing found, they resorted unto a remedy much ceit of Shelley, in 24 H. VIII., and of Pollard, in like unto this statute; for, by two decrees of 27 H. VIII., seemeth to me to be without ground, senate, called senatus consultum Trebellianum et which was, that the use succeeded the tenure : Pegasianum, they made cestuy que use to be heir for that the statute of Quia emptores terrarum, in substance. I have sought, likewise, whether which was made 18 E. I. had taken away the te

there be any thing which maketh with nure between the feoffor and the feoffee, and left

them in our law, and I find that Periam, it to the lord paramount; they said that the feoffchief baron, in the argument of Chudleigh's case, ment, being then merely without consideration, compareth them to copyholders, and aptly for should therefore intend a use to the feoffor, which many respects.

cannot be; for, by that reason, if the feoffment First, because, as a use seemeth to be an here- before the statute had been made tenendum de capiditament in the court of chancery, so the copyhold talibus dominis, as it might be, there should have seemeth to be an hereditament in the lord's court. been a use unto the feoffor before that statute.

Secondly, this conceit of limitation hath been And again, if a grant had been of such things as troublesome in copyholders, as well as in uses ; consist in tenure, as advowsons, rents, villains, for it hath been of late days questioned, whether and the like, there should have been a use of them, there should be dowers, tenancies by the courtesy, wherein the law was quite contrary; for after the intails, discontinuances, and recoveries of copy- time that uses grew common, yet it was, neverholds, in the nature of inheritances, at the com- theless, a great doubt whether things that did lie mon law; and still the judgments have weighed, in grant, did not carry a consideration in themthat you must have particular customs in copy- selves because of the deed. holds, as well as particular reasons of conscience And therefore I do judge that the inin use, and the limitation rejected.

tendment of a use to the feoffor, where Shortridge * And thirdly, because they both grew to strength the feoffment was without considera- Salk. 678. and credit by degrees; for the copyholder first tion, grew long after, when uses waxed general ; had no remedy at all against the lord, and were as and for this reason, because when feoffments were tenancy at will. Afterwards it grew to have re-made, and that it rested doubtful whether it were medy in chancery, and afterwards against their in use or in purchase, because purchases were lords by trespass at the common law; and now, things notorious, and trusts were things secret, lastly, the law is taken by some, that they have the chancellor thought it more convenient to put remedy by ejectione firmæ; without a special cus- the purchaser to prove his confidence, than the tom of leasing. So no doubt in uses : at the first feoffor and his heirs to prove the use; and so the chancery made question to give remedy, until made the intendment towards the use, and put the uses grew more general, and the chancery more proof upon the purchaser. eminent; and then they grew to have remedy in And therefore as uses do carry at the conscience : but they could never maintain any common law in no reason, for whatso- og er en stud. manner of remedy at the common law, neither ever is not by statute, nor against law, part 2, c. 22. against the feoffee, nor against strangers; but the may be said to be at the common law; and both

7 E. 4. 16.


37 H. S. 9, 10 Montague.

8 E. 4, 5.

the general trust and the special were things not | France, which drew most of the nobility to be
prohibited by law, though they were not remedied absent from their possessions; and partly during
by law; so the experience and practice of uses the time of the trouble and civil wars belween the
were not ancient; and my reasons why I think two houses about the title of the crown.
so are these four:

Now to conclude the progression of Second course of
First, I cannot find in any evidence before King uses in courts of statutes, I do note biału:es.
R. II. his time, the clause ad opus et usum, and three special points.
the very Latin of it savoureth of that time; for in 1. That a use had never any force at all at the
ancient time, about E. I. and before, when law- common law, but by statute law.
yers were part civilians, the Latin phrase was 2. That there was never any statute made di-
much purer, as you may see partly by Bracton's rectly for the benefit of cestuy que use, as that the
writing and by ancient patents and deeds, and descent of a use should toll an entry, or that a re-
chiefly by the register of writs, which good La- lease should be good to the pernor of the profits,
tin; whereas the phrase ad opus et usum, as to the or the like; but always for the benefit of stran-
words ad opus, is a barbarous phrase, and like gers, and third persons against cestuy que use, and
enough to be in the penning of some chaplain that his feoffees : for though by the statute of R. III.,
was not much past his grammar, when he found he might alter his feoffee, yet that was not the
opus et usus coupled together, and (preceding) that scope of the statute, but to make good his assur-
they govern an ablative case; as they do indeed ance to third persons, and the other came in but ex
since this statute, for they take away the land and obliquo.
and so put them into a conveyance.

3. That the special intent unlawful and covinSecondly, I find in no private act of attainder, ous was the original of uses, though after it inin the clause of forfeiture of lands, the words, duced to the lawful intent general and

50 E. 3, c. 6. " which he hath in possession or in use," until special : so 50 E. III. is the first staabout E. IV.'s reign.

tute I find wherein mention is made of the taking
Thirdly, I find the word “use" in no statute of profits by one, where the estate in law is in
until 7 R. II., cap. 12., Of Provisors, and in 13 another.
R., Of Mortuaries.

For as for the opinion in 27 H. VIII., that in
Fourthly, I collect out of Choke's case of the statute of Marlebridge, the feoffor took

speech in 8 E. IV., where he saith, that the profits, it is but a conceit: for the law is at this
by the advice of all the judges it was thought that day, that if a man infeoff his eldest son, within
the subpæna did not lie against the heir of the age, and without consideration, although the pro-
feoffee which was in by law, but that the cestuy que fits be taken to the use of the son, yet it is a feoff-
use was driven to bill in Parliament, so that uses ment within the statute. And for the statute De
at that time were but in their infancy; for no religiosis 7 E. I., which prohibits generally that
doubt at the first the chancery made difficulty to religious persons should not purchase arte vel in-
give any remedy at all, but to leave to the parti- genio, yet it maketh no mention of a use, but it
cular conscience of the feoffee: but after the chan- saith colore donationis, termini, vel alicujus tituli,
cery grew absolute, as may appear by the statute reciting there three forms of conveyances, the gift,
made in H. VI. that complainants in chancery the long lease, and feigned recovery; which gift
should enter into bond to prove their suggestions, cannot be understood of a gift to a stranger to their
which showeth that the chancery at that time be- use, for that same to be holpen by 15
gan to embrace too far, and was used for vexa- R. II. long after.
tion; yet, nevertheless, it made scruple to give But to proceed, in 50 E. III., a sta-

50 E. 3, c. 6. remedy against the heir, being in by act in law, tute was made for the relief of creditors though he were privy; so that it cannot be that against such as made covinous gifts of their lands uses had been in any great continuance when they and goods, and conveyed their bodies into sancmade that question; as for the case of matrimonii tuaries, there living high upon other men's goods ; prælocuti, it hath no affinity with uses; for where-and, therefore, that statute made their lands and soever there was remedy at the common law by goods liable to their creditors' executions in that action, it cannot be intended to be of the nature particular case, if they took the profits. of a use.

In 1 R. II. c. 9, a statute was made for relief And for the book commonly vouched of 8 Ass. of those as had right of action, against such as where Earl calleth the possession of a conuzee had removed the tenancy of the præcipe from them, upon a fine levied by consent and entry in autre sometimes by infeofling great persons, for maindroit, and 44 of E. III., where there is mention of tenance; and sometimes by feoffments to other the feoffors that sued by petition to the king, they persons, whereof the defendants could have no be but implications of no moment. So as it ap- notice; and, therefore, the statute maketh the peareth the first practice of uses was about R. II. recovery good in all actions against the first feoffbis time; and the great multiplying and over- ors, so as they took the profits, and so as the despreading of them was partly during the wars in fendants bring their actions within a year of their

15 R. 2, c. 5.


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expulsions. In 2 R. II. cap. 3, an imperfection that time a use appeareth in his likeness; for there in the statute of 50 E. III. was holpen; for whereas is not a word spoken of any taking of the profits, the statute took no place, but where the defendant to describe a use by, but of claiming to a use; and appeared, and so was frustrated, the statute giveth this statute ordained, that all feoffments, gists, upon proclamation made at the gate of the place grants, &c. shall be good against the feoflors, privileged, that the land should be liable without donors, and grantors, and all other persons


ing only to their use; so as here the purchaser In 7 R. II. cap. 12, a statute was made for the was fully relieved, and cestuy que use ; was obiler restraint of aliens, to take any benefices, or digni- enabled to change his feofsees; because there ties ecclesiastical, or farms, or administration of were no words in the statute of feofiments, grants, them, without the king's special license, upon &c. upon good consideration, but generally. In pain of the statute of provisors; which being H. VII.'s time new statutes were made for furremedied by a former statute, where the alien took ther help and remedy to those that came in by act it to his own use; it is by that statute remedied, in law; as 1 H. VII. cap. 1, a formedon is given where the alien took it to the use of another, as it without limitation of time against cestuy que use ; is printed in the book; though I guess that if the and obiter, because they make him tenant, they record were searched, it should be, if any other give him the advantage of a tenant, with age purchased it to the use of an alien, and that the and a voucher over: query 4 H. VII. cap. 17, the words, “or to the use of another,” should be, wardship is given to the lord of the heir of cestuy “or any other to his use.” In 15 R. II. cap. 5, que use, dying, and no will declared, as if he had a statute was made for the relief of lords against died seised in demesne, and recipricè the action mortmain, where feoffments were made to the use of waste given to the heir against the guardian, of corporations; and an ordinance made that for and damages, if the lord were barred in his writ feoffments past the feoffees should, before a day, of ward; and relief is likewise given unto the either purchase license to amortise them, or alien lord, if he, holding by knight service, be of full them to some other use, and for feoffments to age. In 19 H. VII. cap. 15, there is relief again come, or they should be within the statute of mort- in three cases: first, to the creditors upon matter main. In 4 H. VIII. cap. 7, the statute of 1 R. of record, as upon recognisance, statute, or judgII.5, is enlarged in the limitation of time; whereas ment, whereof the two former were not aided at that statute did limit the action to be brought all by any statute : and the last was aided by a within the year of the feoffment, this statute in statute of 50 E. III. and 2 R. II. only in cases case of a disseisin extends the time to the life of of sanctuary men. Secondly, to the lords in socthe disseisor; and in all other actions, leaves it to cage for the reliefs, and herriots upon death, the year from time to time of the action grown. which was omitted in the 4 H. VII., and lastly, In 11 H. VI. cap. 3, the statute of 4 H. IV. is to the lords of villains, upon the purchase of their declared, because that conceit was upon that sta- villains in use. tute, that in case of disseisin the limitation of the In 23 H. VIII. cap. 10, a further remedy was life of the disseisor went only to the assize of given in a case like unto the case of mortmain; novel disseisin, and to no other action; and, for, in the statute of 15 R. II., remedy was given therefore, that statute declareth the former law to where the use came ad manum mortuam, which extend to all other actions, grounded upon novel was when it came to some corporation: now, disseisin. In 11 H. IV. cap. 5, a statute was when uses were limited to a thing, apt or worthy, made for relief of him in remainder against parti- and not to a person or body, as to corporation of cular tenants, for lives, or years, that assigned a church or chaplain, or obiit, but not incorporate over their estates, and took the profits, and then as to priests, or to such guilds or fraternities as committed waste; and, therefore, this statute are only in reputation, and not incorporate, the giveth an action of waste against them, being per-case was omitted, which by the statute was remenors of profits. In all this course of statutes no died, but not by way of giving entry unto the relief is given to purchasers, that come in by the lord, but by way of making the use utterly void; party, but to such as come in by law, as defend- neither doth the statutes express to whose benefit ants in præcipes, whether they be creditors, dis- the use shall be void, either the feoffor or the seisors, or lessors, and lands, and that only in case feoffee, but leaveth it to law, and addeth a proof mortmain : and note also, that they be all in viso, that such uses may be limited from the gift, cases of special covinous intents, as to defeat exe- and no longer. cutions, tenancy to the præcipe, and the statute of This is the whole course of the statute law, mortmain, or provisors. From 11 H. VI. to 1 R. before this statute. Thus have I set forth unto III. being a space of some fifty years, a great you the nature and definition of a use, the difsilence of uses in the statute book, which was this ferences and trusts of a use, the parts of a use, time no question, they were favoured most. In the qualities of it; and hy what rules and learn1 R. III. cap. 1, cometh that great statute for the ings uses shall be guided and ordered: a precedent relief of those that come in by the party, and at of them in other laws, the causes of the springing

2. The title,

14 H. 8, 4.

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or uses since the statute

and proceeding of them, the continuance of uses, to a more civil government, the re-edifying of
and the proceeding that they have had both in divers cities and towns, the suppressing of depo-
common and statute law; whereby it may appear, pulation and enclosures, all badges of a time that
that a use is no more but a general trust when a did extraordinarily flourish.
man will trust the conscience of another better For the title, it hath one title in the
than his own estate and possession, which is an roll, and another in course of pleading.
accident or event of him and society, which hath The title in the roll is no solemn title, but an apt
been, and will be in all laws, and therefore was title, viz., An act expressing an order for uses and
at the common law; for, as Fitzherbert saith, in wills; it was time, for they were out of order.

the 14 H. VIII., common reason is The title in course of pleading is, Statutum de

common law, and not conscience; but usibus in possessionem transferendis: wherein common reason doth define that uses should be Walmsly, justice, noted well, 40 Reginæ, that remedied in conscience, and not in courts of law, if a man look to the working of the statute, he and ordered by rules in conscience, and not by would think that it should be turned the other straight cases of law; for the common law hath way, de possessionibus ad usus transferendis : for a kind of rule on the chancery, to determine what that is the course that the statute holdeth, to bring belongs unto the chancery. And therefore we possession to the use. But the title is framed may truly conclude, that the force and strength not according to the working of the statute, but of the use had or hath in conscience, is by com- according to the scope and intention of the stamon law; and, therefore, that it had or hath in tute, nam quod primum est intentione ultimum est law, is only by statute.

opere. And the intention of the statute was by Now followeth in course both of carrying the possession to the use, to turn the use

time and matter, the consideration of into a possession; for the words are not de posthis statute, our principal labour ; and whereunto sessionibus ad usus sed in usus transferendis ; and, this former consideration which we have handled, as the grammarian saith, præpositio, ad, denotat serve but for introduction.

motum actionis, sed præposilio, in, cum accusativo,
This statute, as it is the statute which of all denotat motum alterationis: and therefore, Kings-
others hath the greatest power and operation over mill, justice, in the same case said, that the mean-
the inheritance of the realm, so, howsoever it ing of the statute was to make a transubstantiation
hath been by the humour of the time perverted in of the use into a possession.
exposition, yet itself is the most perfect and exactly But it is to be noted, that titles of acts of Parlia-
conceived and penned of any law in the book. It ment severally came in H. VIII., for before that
is induced with the most declaring and under time there was but one title to all the acts made
standing preamble, consisting and standing upon in one Parliament; and that was no title neither,
the wisest and fittest ordinances, and qualified but a general preface of the good intent of the
with the most foreseeing and circumspect savings king, but now it is parcel of the record.
and provisoes; and, lastly, the best pondered of For the precedent of this statute upon

all the words and clauses of it, of any which it is drawn, I do find it by the upon which it
statute that I find. But before I come first R. III. c. 5, whereupon you may

to the statute itself, I will note unto see the very mould whereon this statute was made, you three matters of circumstance.

where the said king having been infeofsed (before 1. The time of the statute. 2. The title of it. he usurped) to uses, it was ordained that the land 3. The precedent or pattern of it.

whereof he was jointly infeoffed with others For the time, it was made in 27 H. should be in his other cofeoffees as if he had not

VIII., when the kingdom was in full been named, and where he was solely infeoffed, peace, and in a wealthy and in a flourishing time, it should be in cestuy que use, in estate, as he had in which nature of time men are most careful of the the use. assurance of their possessions; as well because Now to come to the statute itself, the statute purchasers are most stirring, as again, because consisteth, as other laws do, upon a preamble, the the purchaser, when he is full, is no less careful body of the law, and certain savings, and proof his assurance to his children, and of disposing visoes. The preamble setteth forth the inconthat which he hath gotten, than he was of his venience, the body of the law giveth the remedy. bargain and compassing thereof.

For new laws are like the apothecaries' drugs, About that time the realm began to be enfran- though they remedy the disease, yet, they trouble chised from the tributes to Rome, and the posses- the body; and, therefore, they use to correct with sions that had been in mortmain began to stir spices: and so it is not possible to find a remedy abroad ; for this year was the suppression of the for any mischief in the commonwealth, but it will smaller houses, all tending to plenty, and pur- beget some new mischief; and, therefore, they chasing: and this statute came in consort with spice their laws with provisoes to correct and divers excellent statutes, made for the kingdom in qualify them. The same parliament; as the reduction of Wales The preamble of this law was justly The preamble

is drawn.

of the circumstances attend. ing the statute.

1. The time of the statute.

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