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main, where feoffments were made to the use of corporations; and an ordinance made that, for feoffments past, the feoffees should, before a day, either purchase license to amortise them, or alien them to some other use, and, for feoffments to come, they should be within the statute of mortmain. In 4 H. IV. cap. 7. the statute of 1 R. II. is enlarged in the limitation of time; for whereas that statute did limit the action to be brought within the year of the feoffment, this statute, in the case of disseisin, extends the time to the life of the disseisor, and in all other actions leaves it to the year from the time of the action grown. In 11 H. VI. cap. 3. that statute of 4 H. IV. is declared; because the conceit was, upon that statute, that in case of disseisin the limitation of the life of the disseisor went only to the assize of novel disseisin, and to no other action: and therefore this statute declareth the former law to extend to all other actions grounded upon novel disseisin. In 11 H. VI. cap. 5. a statute was made for relief of him in remainder against particular tenants, for lives or years, that assigned over their estates, and took the profits, and then committed waste; and therefore this statute giveth an action of waste against them, being pernors of profits.


In all this course of statutes no relief is given to purchasers that come in by the party, but to such as come in by law: as demandants in præcipes, whether they be creditors, disseisees, or lessors, and lords (and that only in case of mortmain). And note also, that they be all in cases of special covinous intents; as, to defeat executions, tenancy to the præcipe, and the statute of mortmain, or provisors.

From 11 H. VI. to 1 R. III. being a space of fifty years, there is a silence of uses in the statute book, which was at that time when, no question, they were favoured most. In 1 R. III. cap. 1. cometh the great statute for the relief of those that come in by the party: and at that time an use appeareth in his likeness; for there is not a word spoken of any taking of the profits, to describe a use by, but of claiming to an use. And this statute ordained that all feoffments, gifts, grants, &c. shall be good against the feoffors, donors, and grantors, and all other persons claiming only to their use: so as here the

'Both Harl. MSS. give this reading, which has been omitted or blundered in all the Editions, and No. 6688. gives the obvious correction of "demandant " for " defendant " above.

purchaser was fully relieved; and cestui que use was obiter enabled to change his feoffees, because there were no words in the statute of feoffments, grants, &c. upon good consideration, but generally. In H. VII.'s time new statutes were made for further help and remedy to those that came in by act in law; as 1 H. VII. cap. 1. a formedon is given without limitation of time against cestui que use; and obiter, because they make him tenant, they give him the advantage of a tenant, as of age and voucher over. 4 H. VII. cap. 17. the wardship of the heir of cestui que use dying, and no will declared, is given to the lord as if he had died seised in demesne; and reciprocè action of waste given to the heir against the guardian, and damages if the lord were barred in his writ of ward; and relief is likewise given unto the lord, if the heir, holding by knight service, be of full age. In 19 H. VII. cap. 15. there is relief given in three cases: first, to the creditors upon matter of record, as upon recognisance, statute, or judgment, whereof the two former were not aided at all by any statute, and the last was aided by the statutes of 50 E. III. and 2 R. II. only in cases of sanctuary men; secondly, to the lords in socage for their reliefs and heriots upon death, which was omitted in the 4 H. VII.; and lastly, to the lords of villains, upon the purchase of their villains in use. In 23 H. VIII. cap. 10. a further remedy was given in a case like unto the case of mortmain. For in the statute of 15 R. II. remedy was given where the use came ad manum mortuam, which was when it came to some corporation: now, when uses were limited to a thing apt or worthy', and not to a person or body,—as to the reparation of a church, or an obit, or to such guilds or fraternities as are only in reputation and not incorporate, as to parishes, the case was omitted; which by this statute is remedied, not by way of giving entry unto the lord, but by way of making the use utterly void. Neither doth the statute express to whose benefit the use shall be made void, either the feoffor or feoffee, but leaveth it to law, and addeth a proviso that uses may be limited twenty years from the gift, and no longer.

This is the reading of Mr. Montagu's text, also of Harl. MS. 6688., which latter seems to me the most trustworthy we have. The common reading is "act, or work,” which some may prefer. The general sense is not affected. For "parishes," below, the MS. reads "priests."

This is the whole course of the statute law touching uses, before this statute. And thus have I set forth unto you the nature and definition of an use; the differences of trusts, the parts of an use, and the qualities of it, and by what rules and learning uses shall be guided and ordered; a precedent of them in other laws, and some resemblance of them in our law; the causes of the springing and spreading of uses; the continuance of them; and the proceeding that they have had both in common and statute law. Whereby it may appear, that an use is no more but a general trust, when a man will trust the conscience of another better than his own estate and possession; which is an accident or event of human society which hath been and will be in all laws, and therefore was at the common law which is For as Fitzherbert saith in the 14 H. VIII. 4. common reason is common law, and not conscience; but common reason doth define that uses should be remedied in conscience and not in courts of law, and ordered by rules in conscience and not by strait cases of law; for the common law hath a kind of a rule and survey over the chancery, to determine what belongs to the chancery. And therefore we may truly conclude, that the force and strength that an use had or hath in conscience is by common law; and the force that it had or hath by common law is only by statutes.

common reason.


Now followeth, in time and matter, the consideration of this statute, which is our principal labour; for those former considerations which we have handled serve but for introduction.

This statute, as it is the statute which of all others hath the greatest power and operation over the inheritances of the realm, so howsoever it hath been by the humour of the time perverted in exposition, yet itself is the most perfectly and exactly conceived and penned of any law in the book, induced with the most declaring and persuading preamble, consisting and standing upon the wisest and fittest ordinances, and qualified with the most foreseeing and circumspect savings and provisoes, and lastly, the best pondered in all the words and clauses of it of any statute that I find.

But before I come to the statute itself, I will note unto you three matters of circumstance: 1. the time of the statute: 2. the title of it: 3. the precedent or pattern of it.

1. For the time, it was made in 27 H. VIII. when the kingdom was in full peace and a wealthy and flourishing estate; in which nature of time men are most careful of the assurances of their possessions, as well because purchases are most stirring as, again, because the purchaser, when he is full, is no less careful of his assurance to his children and of disposing that which he hath gotten, than he was of his bargain and compassing thereof.

About that time likewise the realm began to be enfranchised from the tributes of Rome, and the possessions that had been in mortmain began to stir abroad; for this year was the suppression of the smaller houses of religion: all tending to plenty and purchasing. And this statute came in consort with divers excellent statutes made for the kingdom in the same parliament; as the reduction of Wales to a more civil government, the reedifying of divers, cities and towns, the suppressing of depopulation and inclosures; all badges of a time that did extraordinarily flourish.

For the title, it hath one title in the roll, and another in course of pleading. The title in the roll is no solemn title, but an apt title, viz. An act expressing an order for uses and wills;

it was time, for they were out of order. The title in course of pleading is, Statutum de usibus in possessionem transferendis. Wherein Walmsly, Justice, noted well, 40 Reginæ, that if a man look to the working of the statute he would think it should be turned the other way, de possessionibus ad usus transferendis; for that is the course that the statute holdeth, to bring possession to the use. But the title is framed not according to the working of the statute, but according to the scope and intention of the statute; nam quod primum est intentione ultimum est opere; and the intention of the statute was by carrying the possession to the use to turn the use into a possession. For the words are not de possessionibus ad usus, but in usus transferendis; and as the grammarian saith, præpositio "ad" denotat motum lationis, sed præpositio "in" cum accusativo denotat motum alterationis; and therefore Kingsmill, Justice, in the same case, saith that the meaning of the statute was to make a transubstantiation of the use into a possession. But it is to be noted that titles of acts of parliament, severally, came in but in 5 H. VIII.; for before that time there was but one title of all the acts made in one parliament; and that was no title neither, but a general preface of the good intent of the King, but now it is parcel of the record.

For the precedent of this statute upon which it is drawn, I do find it 1 R. III. c. 5., where you may see the very mould whereon this statute was made; where the said King having been infeoffed, before he usurped, to uses, it was ordained that the land whereof he was jointly infeoffed should be in his cofeoffees as if he had not been named; and where he was solely infeoffed, it should be in cestui que use, in estate, as he had the use.

Now to come to the statute itself.

The statute consisteth, as other laws do, upon a preamble, the body of the law, and certain savings and provisoes. The preamble setteth forth the inconvenience; the body of the law giveth the remedy; and the savings and provisoes take away the inconveniences of the remedy. For new laws are like the apothecaries' drugs; though they remedy the disease, yet they

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