Imágenes de páginas

3 Rep. 81.
1 Roll. Abr.

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 anpurchaser shall stand seised to the answer, 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 obits than to will the use of the land to certain persons and their heirs, so long as they shall pay the chantry priests their wages, and in default of payment, then to limit the use over to other persons and their heirs; and so, in case of forfeiture, through many degrees; and such conveyances are as ancient as R. II. his time.

The transferring of uses.

3. For the transferring of uses there is no case in law whereby an action may be transferred, but the subpana we see in case of use was always assignable; nay, farther, you find twice 27 H. VIII. fol. 20, pla. 9; and, again, fol. 30, and pla. 21, that a right of use may be transferred; for in the former case Montague maketh an objection, and saith, that a right of use cannot be given by fine, but to him that hath the possession; Fitzherbert answereth, Yes, well enough; query the reason, saith the book.

And in the latter case, where cestuy que use was infeoffed by the disseisor of the feoffee, and made a feoffment over, Englefield doubted whether the second feoffee should have the use. Fitzherbert said, "I marvel you will make a doubt of it, for there is no doubt but the use passeth by the feoffment to the stranger, and, therefore, this question needeth not to have been made." So the great difficulty in 10 Reginæ, Delamer's case, where the case was in effect, there being tenant in tail of a use, the remainder in fee, tenant in tail made a feoffment in fee, by the statute of 1 R. III. and that feoffee infeoffed him in the remainder of the use, who made a feoffment over; and there question being made, whether the second feoffee should have the use in remainder, it is well said, that the second feoffee must needs have the best right in conscience; because the first feoffee claimeth nothing but in trust, and the cestuy que use cannot claim it against his sale; but the reason is apparent, as is touched before, that a use in esse was but a thing in action, or in suit to be brought in court of conscience; and whether the subpoena was to be brought against the feoffee in possession to execute the estate, or against the feoffee out of possession to recontinue the estate, always the subpoena might be transferred; for still the action at the common law was not stirred, but remained in the feoffee; and so no mischief of maintainance or transferring rights.

(lb. v.

1 Rep. 121. 129.

The extinguish

4. Now for determining and extinguishing of uses, we put the case of ment of uses, collectoral warranty before; add to that, the notable case of 14 H. VIII., Halfpenny's 14 H. 8. 4. case, where this very point is in the principal case; for a right out of land, and the land itself, in case of possession, cannot stand together, but the rent shall be extinct; but there the case is, that the use of the land and the use of the rent may stand well enough together; for a rent charge was granted by the feoffee to one that had notice of the use, and ruled, that the rent was to the ancient use, and both uses were in esse simul et semel; and though Brudenell, chief justice, urged the ground of possession to be otherwise, yet, he was overruled by other three justices; and Brooke said unto him, he thought he argued much for his pleasure. And to conclude, we see that things may be avoided and determined by the ceremonies and acts, like unto those by which they are created and raised: that which passeth by livery ought to be avoided by entry; that which passeth by grant, by claim; that which passeth by way of charge, determineth by way of discharge; and so a use which is raised but by a declaration or limitation may cease by words of declaration or limitation, as the civil law saith, in his magis consentaneum est, quam ut iisdem modis res dissolvantur quibus constituantur.

Co. Lit. 237.

Digges's case,

I Rep. 174.

The inception


For the inception and progression of 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

First, in the civil law. Contra Sigon.

1. cap. 5.

Inst. 1, 2.


lib. 5. tit. 3.


Now for the causes whereupon uses The causes of were put in practice: Master Coke, in them. his reading, doth say well, that they were produced sometimes for fear, and many times for fraud. But I hold that neither of these cases were so much the reasons of uses, as another reason in the beginning, which was, that the lands by the common law of England were not testamentary or devisable; and of late years, since the statute, the case of the conveyance for sparing of purchases and execution of estates; and now, last of all, an express liberty of will in men's minds, affecting to have assurances of their estates and possessions to be revocable in their own times, and irrevocable after their own times.

et dominium is, with them, as with us, particular | remedy against the feoffee was but by the subpona ; tenancy and inheritance. But that and the remedy against strangers to the feoffee by which resembleth the use most is, de Judicis, lib. fidei commisseo, and, therefore, you shall find, in Justinian, lib. 2, that they had a form in testaments, to give inheritance to one to the use of another, Hæredem constituo Caium; rogo autem te, Caie, ut hæreditatem restiTomat. tom. 3, tuas Scio. And the text of the civilians saith, that for a great time, if the heir did not as he was required, cestuy que use had no remedy at all, until, about the time of Augustus Cæsar, there grew in custom a flattering form of trust, for they penned it thus: Rogo te per salutem Augusti, or per fortunam Augusti, &c. Whereupon Augustus took the breach of trust to sound in derogation of himself, and made a rescript to the prætor to give remedy in such cases; whereupon, 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 fine, uses, who was called prætor fidei-commissarius; law, and what it hath been in course of acres. and not long after, the inconvenience of them statute. For the common law, being 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 Pegasianum, they made cestuy que use to be heir in substance. I have sought, likewise, whether there be any thing which maketh with them in our law, and I find that Periam, chief baron, in the argument of Chudleigh's case, compareth them to copyholders, and aptly for many respects.

Second, in our law.

the con

of common law,

Ld. case.

which was, that the use succeeded the tenure : for that the statute of Quia emptores terrarum, which was made 18 E. I. had taken away the tenure between the feoffor and the feoffee, and left it to the lord paramount; they said that the feoffment, being then merely without consideration, should therefore intend a use to the feoffor, which cannot be; for, by that reason, if the feoffment before the statute had been made tenendum de capitalibus dominis, as it might be, there should have been a use unto the feoffor before that statute. And again, if a grant had been of such things as consist in tenure, as advowsons, rents, villains, and the like, there should have been a use of them, wherein the law was quite contrary; for after the time that uses grew common, yet it was, nevertheless, a great doubt whether things that did lie in grant, did not carry a consideration in them

First, because, as a use seemeth to be an hereditament in the court of chancery, so the copyhold seemeth to be an hereditament in the lord's court. Secondly, this conceit of limitation hath been troublesome in copyholders, as well as in uses; for it hath been of late days questioned, whether there should be dowers, tenancies by the courtesy, intails, discontinuances, and recoveries of copyholds, in the nature of inheritances, at the common law; and still the judgments have weighed, that you must have particular customs in copy-selves because of the deed. holds, as well as particular reasons of conscience in use, and the limitation rejected.


And therefore I do judge that the in- 7 E. 4. 16. tendment of a use to the feoffor, where Shortridge w the feoffment was without considera- Salk. 678. tion, grew long after, when uses waxed general; and for this reason, because when feoffments were

in use or in purchase, because purchases were things notorious, and trusts were things secret, the chancellor thought it more convenient to put the purchaser to prove his confidence, than the feoffor and his heirs to prove the use; and so made the intendment towards the use, and put the proof upon the purchaser.

And thirdly, because they both grew to strength and credit by degrees; for the copyholder first had no remedy at all against the lord, and were as 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 lords by trespass at the common law; and now, lastly, the law is taken by some, that they have remedy by ejectione firma; without a special custom of leasing. So no doubt in uses: at the first the chancery made question to give remedy, until uses grew more general, and the chancery more eminent; and then they grew to have remedy in conscience but they could never maintain any manner of remedy at the common law, neither against the feoffee, nor against strangers; but the


And therefore as uses do carry at the 37 H. 8. 9, 10 common law in no reason, for whatso- Doctor & Stud. ever is not by statute, nor against law, part 2, c. 22. may be said to be at the common law; and both

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 by law; so the experience and practice of uses were not ancient; and my reasons why I think so are these four:

First, I cannot find in any evidence before King R. II. his time, the clause ad opus et usum, and the very Latin of it savoureth of that time; for in ancient time, about E. I. and before, when lawyers were part civilians, the Latin phrase was much purer, as you may see partly by Bracton's writing and by ancient patents and deeds, and chiefly by the register of writs, which is good Latin; whereas the phrase ad opus et usum, as to the words ad opus, is a barbarous phrase, and like enough to be in the penning of some chaplain that was not much past his grammar, when he found opus et usus coupled together, and (preceding) that they govern an ablative case; as they do indeed since this statute, for they take away the land and and so put them into a conveyance.

Secondly, I find in no private act of attainder, in the clause of forfeiture of lands, the words, "which he hath in possession or in use," until about E. IV.'s reign.

Thirdly, I find the word "use" in no statute until 7 R. II., cap. 12., Of Provisors, and in 13 R., Of Mortuaries.

8 E. 4, 5.

Fourthly, I collect out of Choke's speech in 8 E. IV., where he saith, that by the advice of all the judges it was thought that the subpoena did not lie against the heir of the feoffee which was in by law, but that the cestuy que use was driven to bill in Parliament, so that uses at that time were but in their infancy; for no doubt at the first the chancery made difficulty to give any remedy at all, but to leave to the particular conscience of the feoffee: but after the chancery grew absolute, as may appear by the statute made in H. VI. that complainants in chancery should enter into bond to prove their suggestions, which showeth that the chancery at that time began to embrace too far, and was used for vexation; yet, nevertheless, it made scruple to give remedy against the heir, being in by act in law, though he were privy; so that it cannot be that uses had been in any great continuance when they made that question; as for the case of matrimonii prælocuti, it hath no affinity with uses; for wheresoever there was remedy at the common law by action, it cannot be intended to be of the nature of a use.

And for the book commonly vouched of 8 Ass. where Earl calleth the possession of a conuzee upon a fine levied by consent and entry in autre droit, and 44 of E. III., where there is mention of the feoffors that sued by petition to the king, they be but implications of no moment. So as it appeareth the first practice of uses was about R. II. bis time; and the great multiplying and overspreading of them was partly during the wars in

absent from their possessions; and partly during the time of the trouble and civil wars between the two houses about the title of the crown. Now to conclude the progression of Second course of uses in courts of statutes, I do note three special points.


1. That a use had never any force at all at the common law, but by statute law.

2. That there was never any statute made directly for the benefit of cestuy que use, as that the descent of a use should toll an entry, or that a release should be good to the pernor of the profits, or the like; but always for the benefit of strangers, and third persons against cestuy que use, and his feoffees: for though by the statute of R. III., he might alter his feoffee, yet that was not the scope of the statute, but to make good his assurance to third persons, and the other came in but ex obliquo.

50 E. 3, c. 6.

3. That the special intent unlawful and covinous was the original of uses, though after it induced to the lawful intent general and special: so 50 E. III. is the first statute I find wherein mention is made of the taking of profits by one, where the estate in law is in another.

For as for the opinion in 27 H. VIII., that in case of the statute of Marlebridge, the feoffor took the profits, it is but a conceit: for the law is at this day, that if a man infeoff his eldest son, within age, and without consideration, although the profits be taken to the use of the son, yet it is a feoffment within the statute. And for the statute De religiosis 7 E. I., which prohibits generally that religious persons should not purchase arte vel ingenio, yet it maketh no mention of a use, but it saith colore donationis, termini, vel alicujus tituli, reciting there three forms of conveyances, the gift, the long lease, and feigned recovery; which gift cannot be understood of a gift to a stranger to their use, for that same to be holpen by 15 R. II. long after.

15 R. 2, c. 5.

50 E. 3, c. 6.

But to proceed, in 50 E. III., a statute was made for the relief of creditors against such as made covinous gifts of their lands and goods, and conveyed their bodies into sanctuaries, there living high upon other men's goods; and, therefore, that statute made their lands and goods liable to their creditors' executions in that particular case, if they took the profits.

In 1 R. II. c. 9, a statute was made for relief of those as had right of action, against such as had removed the tenancy of the præcipe from them, sometimes by infeoffing great persons, for maintenance; and sometimes by feoffments to other persons, whereof the defendants could have no notice; and, therefore, the statute maketh the recovery good in all actions against the first feoffors, so as they took the profits, and so as the defendants bring their actions within a year of their

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 appeared, and so was frustrated, the statute giveth upon proclamation made at the gate of the place privileged, that the land should be liable without appearance.

In 7 R. II. cap. 12, a statute was made for the restraint of aliens, to take any benefices, or dignities ecclesiastical, or farms, or administration of them, without the king's special license, upon pain of the statute of provisors; which being remedied by a former statute, where the alien took it to his own use; it is by that statute remedied, where the alien took it to the use of another, as it is printed in the book; though I guess that if the record were searched, it should be, if any other purchased it to the use of an alien, and that the words, "or to the use of another," should be, "or any other to his use." In 15 R. II. cap. 5, a statute was made for the relief of lords against mortmain, 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, or they should be within the statute of mortmain. In 4 H. VIII. cap. 7, the statute of 1 R. II. 5, is enlarged in the limitation of time; whereas that statute did limit the action to be brought within the year of the feoffment, this statute in case of a disseisin extends the time to the life of the disseisor; and in all other actions, leaves it to the year from time to time of the action grown. In 11 H. VI. cap. 3, the statute of 4 H. IV. is declared, because that 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, that statute declareth the former law to extend to all other actions, grounded upon novel disseisin. In 11 H. IV. 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 defendants in præcipes, whether they be creditors, disseisors, or lessors, and lands, 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 some fifty years, a great silence of uses in the statute book, which was this time no question, they were favoured most. In 1 R. III. cap. 1, cometh that great statute for the relief of those that come in by the party, and at

to describe a use by, but of claiming to a 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 purchaser was fully relieved, and cestuy 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 cestuy que use; and obiter, because they make him tenant, they give him the advantage of a tenant, with age and a voucher over: query 4 H. VII. cap. 17, the wardship is given to the lord of the heir of cestuy que use, dying, and no will declared, as if he had died seised in demesne, and recipricè the 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 he, holding by knight service, be of full age. In 19 H. VII. cap. 15, there is relief again in three cases: first, to the creditors upon matter of record, as upon recognisance, statute, or judg ment, whereof the two former were not aided at all by any statute: and the last was aided by a statute of 50 E. III. and 2 R. II. only in cases of sanctuary men. Secondly, to the lords in soccage for the reliefs, and herriots 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 corporation of a church or chaplain, or obiit, but not incorporate as to priests, or to such guilds or fraternities as are only in reputation, and not incorporate, the case was omitted, which by the statute was remedied, but not by way of giving entry unto the lord, but by way of making the use utterly void; neither doth the statutes express to whose benefit the use shall be void, either the feoffor or the feoffee, but leaveth it to law, and addeth a proviso, that such uses may be limited from the gift, and no longer.

This is the whole course of the statute law, before this statute. Thus have I set forth unto you the nature and definition of a use, the differences and trusts of a use, the parts of a use, the qualities of it; and by what rules and learnings uses shall be guided and ordered: a precedent of them in other laws, the causes of the springing

14 H. 8, 4.

and proceeding of them, the continuance of uses, and the proceeding that they have had both in common and statute law; whereby it may appear, that a 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 him and society, which hath been, and will be in all laws, and therefore was at the common law; for, as Fitzherbert saith, in the 14 H. VIII., 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 straight cases of law; for the common law hath a kind of rule on the chancery, to determine what belongs unto the chancery. And therefore we may truly conclude, that the force and strength of the use had or hath in conscience, is by common law; and, therefore, that it had or hath in law, is only by statute.

Of uses since the statute.

Now followeth in course both of time and matter, the consideration of this statute, our principal labour; and whereunto this former consideration 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 inheritance of the realm, so, howsoever it hath been by the humour of the time perverted in exposition, yet itself is the most perfect and exactly conceived and penned of any law in the book. It is induced with the most declaring and understanding 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 of 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.

Of the circum. stances attending the statute.

to a more civil government, the re-edifying of divers cities and towns, the suppressing of depopulation and enclosures, all badges of a time that did extraordinarily flourish.

2. The title.

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 that 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 sed in usus transferendis; and, as the grammarian saith, præpositio, ad, denotat motum actionis, sed præpositio, in, cum accusativo, denotat motum alterationis: and therefore, Kingsmill, justice, in the same case said, 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 H. VIII., for before that time there was but one title to 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.

The precedent

is drawn.

For the precedent of this statute upon which it is drawn, I do find it by the upon which it first R. III. c. 5, whereupon you may see the very mould whereon this statute was made, where the said king having been infeoffed (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.

1. The time of

For the time, it was made in 27 H. the statute. VIII., when the kingdom was in full peace, and in a wealthy and in a flourishing time, in which nature of time men are most careful of the assurance of their possessions; as well because purchasers 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 the realm began to be enfranchised from the tributes to Rome, and the possessions that had been in mortmain began to stir abroad; for this year was the suppression of the smaller houses, 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

whereof he was jointly infeoffed with others should be in his other cofeoffees as if he had not been named, and where he was solely infeoffed, it should be in cestuy 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. For new laws are like the apothecaries' drugs, though they remedy the disease, yet, they trouble the body; and, therefore, they use to correct with spices: and so it is not possible to find a remedy for any mischief in the commonwealth, but it will beget some new mischief; and, therefore, they spice their laws with provisoes to correct and qualify them.

The preamble of this law was justly The preamble

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