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alienation, &c. shall be taken for any estate executed by force of the statute, before the first of May, 1536, but they shall be paid for uses made and executed in possession for the time after; where the word "made" directly goeth to conveyances in use made after the statute, and can have no other understanding; for the words "executed in possession" would have served for the case of regress.

And, lastly, which is more than all, if they had had any such intent, the case being so general and so plain, they would have had words express, that every limitation of use made after the statute should have been void. And this was the exposition, as tradition goeth, that a reader of Gray's Inn which read soon after the statute was in trouble for,—and worthily; who, I suppose, was Boyse', whose reading I could never see; but I do now insist upon it, because now again some2, in an immoderate invective against uses, do relapse to the same opinion.

The second opinion, which I call a contrary extremity, is, that the statute meant only to remedy the mischiefs in the preamble recited, as they grew by reason of the divided use; and although the like mischief may grow upon the contingent uses, yet the statute had no foresight of them at that time, and so it was merely a new case not comprised.

Whereunto I answer, that I grant the work of the statute is to execute the divided use; and, therefore, to make any use void by this statute which was good before, though it do parti- cipate of the mischief recited in the statute, were to make a law upon a preamble without a purview, which were grossly absurd but upon the question, what uses are executed, and what not, and whether out of the possession of a disseisor or other possessions out of privity, or not; there you shall guide your exposition according to the preamble; as shall be handled in my next day's discourse.

And so much touching the preamble of this law.

the law.

For the body of the law, I would wish all readers that ex- The body of pound statutes to do as scholars are willed to do; that is, first, to seek out the principal verb; that is, to note and single out the material words whereupon the statute is framed for there are, in every statute, certain words, which are veins where the

1 "Boys" and "Boyse" appear as readers in Dugdale, and I presume are identical. * I take Coke to be principally meant.

al use, pl. 40.

life and blood of the statute is and runneth, and where all doubts do arise and issue forth; and all the rest of the words are but literæ mortuæ, fulfilling words.

The body of the statute consisteth upon two parts: first, a supposition, or case put, as Anderson, 36 Reginæ called it; secondly, a purview, or ordinance thereupon.

The cases of the statute are three, and every one hath his purview: the general case; the case of feoffees to the use of some of them; and the case of feoffees to the use or perceivance of rents or profits.

The general case is built upon eight material words: four on the part of the feoffees; three on the part of cestui que use; and one common to them both.

The first material word on the part of the feoffees is the word person. This excludes all abeyances; for there can be no Bro. feoffm. confidence reposed but in a person certain. It excludes again all corporations; for they are enabled to an use certain; for note, on the part of the feoffee ever1 the statute insists upon the word "person"; and on the part of cestui que use, it ever addeth "body politic."

This ex

The second word material is the word "seised." cludes chattels. The reason is, that the statute meant to remit the common law, and not to alter it. Chattels might ever pass by testament or by parol; therefore the use did not pervert them. It excludes rights; for it was against the rules of the common law to grant or transfer rights; and therefore the statute would not execute them. Thirdly, it excludes contingent uses2, because the seisin can but be to a fee-simple of an use, and, when that is limited, the seisin of the feoffee is spent: for Littleton tells us, that there are but two seisins, one, in dominico ut de feodo, the other, ut de feodo. And the feoffee by the common law could execute but the fee-simple to uses present, and no post uses: and therefore the statute meant not to execute them.

The third material word is "hereafter." That bringeth in conveyances made after the statute; it brings in, again, conveyances made before and disturbed by disseisin and recontinued after; for it is not said " infeoffed to use hereafter," but "seised."

'This, which Mr. Rowe conjecturally substituted for "feoffor over," is the reading of Harl. MS. 6688.

2 See Note D. at the end.

The fourth word is hereditament; which is to be understood of those things whereof an inheritance may be, and not of those things whereof an inheritance is in esse: for if I grant a rent charge de novo for life to an use, this is good enough; yet there is no inheritance in being of this rent. This word likewise excludes annuities, and uses themselves; so that an use cannot be to an use.

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The first word on the part of cestui que use is the word," use, confidence, or trust "; whereby it is plain that the statute meant not to make ". use vocabulum artis, but it meant to remedy the matter, and not words: and in all the clauses it still carrieth the words.

The second word is the word "person" again: which excludeth all abeyances. It excludeth also all dead uses, which are not to bodies lively and natural; as the building of a church, the making of a bridge: but here, as was noted before, it is ever coupled with body politic.

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The third word is the word "other." The statute meant not to cross the common law. Now at this time uses were grown into such familiarity, as men could not think of a possession but in course of use; and so every man was said to be seised to his own use, as well as to the use of others: therefore, because the statute would not stir nor turmoil possessions settled at the common law, it putteth in precisely this word "other," meaning the divided use and not the conjoined use. And this causeth the clause of joint feoffees to follow in a branch by itself; for else that case had been doubtful upon this word "other.".

Eliz. 344.

The words that are common to both are words expressing the conveyance whereby the use ariseth '; of which words those that breed any question are "agreement," "will," "otherwise;" whereby some have inferred that uses might be raised by agree- Collard, Cro. ment parol, so there were a consideration, [not]2 of money or other matter valuable, (for it is expressed in the words before, bargains, sale, and contract,) but of blood, or kindred: the error of which collection appeareth in the word immediately following, viz. "will", whereby they might as well conclude that a man seised of land might raise an use by will,

1 Here Harl. MS. 6688. ends.

2 Mr. Rowe conjecturally adds this word, which seems necessary. I have found no authority for it.

especially to any of his sons or kindred, where there is a real consideration, and by that reason mean, betwixt this statute and the statute of 32 H. VIII. of Wills, lands were devisable, especially to any man's kindred: which was clearly otherwise; and therefore those words were put in, not in regard of uses raised by those conveyances, but in regard of uses formerly transferred by those conveyances; for it is clear that an use in esse by simple agreement with consideration or without, or likewise by will, might be transferred; and then there was a person seised to an use by force of that agreement or will, viz. to the use of the assignee. And for the word "otherwise," it should by the generality of the word include a disseisin to an use; but the whole scope of the statute crosseth that, which was to execute such uses as were confidences and trusts; which could not be in case of disseisin; for if there were a commandment precedent, then the land was vested in cestui que use upon the entry; and if the disseisin were of the disseisor's own head, then no trust.

And thus much for the case or supposition of this statute: here followeth the ordinance and purview thereupon.

The purview hath two parts: the first operatio statuti, the effect that the statute worketh; and there is modus operandi, a fiction, or explanation how the statute doth work that effect. The effect is, that cestui que use shall be in possession of like estate as he hath in the use; the fiction quomodo is, that the statute will have the possession of cestui que use, as a new body, compounded of matter and form, and that the feoffees shall give matter and substance, and the use shall give form and quality.

The material words in the first part of the purview are four. The first words are "remainder and reverter." The statute having spoken before of uses in fee-simple, in tail, for life, or years, or otherwise1, addeth, "or in remainder or reverter: " whereby it is manifest, that the first words are to be understood of uses in possession. For there are two substantial and essential differences of estates: the one limiting the times (for all estates are but times) of their continuances; this maketh the difference of fee-simple, fee-tail, for life, or years; and the

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These words "or otherwise stand, in the editions and MS., thus: " or otherwise in remainder or reverter." I have transposed them to the place they occupy in the statute.

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other maketh difference of possession, as remainder: all other differences of estate are but accidents, as shall be said hereafter.1 These two the statute meant to take hold of, and at the words, "remainder and reverter," it stops; it adds not words, "right, title, or possibility," nor it hath not general words, or otherwise;" whereby it is most plain that the statute meant to execute no inferior uses to remainder or reverter; that is to say, no possibility or contingencies; but estates only, such as the feoffees might have executed by conveyance made. Note also, the very letter of the statute doth take notice of a difference between an use in remainder and an use in reverter; which though it cannot be properly2 (because it doth not depend upon particular estates as remainders do, neither did then before the statute draw any tenures as reversions do,) yet the statute intends that there is a difference, when the particular use and the use limited upon the particular use are both new uses, in which case it is an use in remainder; and where the particular use is a new use, and the remnant of the use is the old use, in which case it is an use in reverter.

Bro. Feoffm.

The next material word is "from henceforth;" which doth exclude all conceit of relation, that cestui que use shall [not]3 come in as from the time of the first feoffment to use; as Brudnell's conceit was in 14 H. VIII., that, if 4 the feoffee had granted a rent charge, and cestui que use had made a feoffment in al use, 10. fee by the statute of 1 B. III., the [latter] feoffee should have held it discharged, because the act of cestui que use shall put the feoffee in as if cestui que use had been seised from the time of the first use limited. And therefore the statute doth take away all such ambiguities, and expresseth that cestui que use shall be in possession from henceforth; that is, from the time of the parliament for uses then in being, and from the time of the execution for uses limited after the parliament.

The third material words are "lawful seisin, state, and possession;" not a possession in law only, but a seisin in fact; not a title to enter into the land, but an actual estate.

1 The passage is not extant.

2 According to Bacon, then, it would seem, even after the statute, an use in remainder did not depend on the particular estate. See Notes A. and D. 3 I think this word should be left out.

The meaning is, that in cases of feoffments before the statute and any intermediate charges, feoffments, &c. made by the feoffees, the statute should not relate back to avoid them.

I have without authority changed "is" into "if," and inserted "latter" a little below.

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