Conscience A right in Law So much of the nature and definition of an use It followeth to consider the parts and properties of an use wherein by the consent of all Bookes and it was distinctly delivered by Justice Walmeley in 36. Elizabeth That a trust consisteth upon three parts The First that the Feoffee will suffer the Feoffer to take the profits The Second that the Feoffee upon request of the Feoffer or notice of his Will will execute the Estates to the Feoffer or his Heires or any other by his direction The Third that if the Feoffee be disseised and so the Feoffer disturbed the Feoffee will re-enter or bring an action to re-continue the possession so that those three pernancy of Profits execution of Estates and defence of the Land are the three poynts of trust The properties of an use they are exceeding well set forth by former Justice in the same Case and they be three Uses saith he are created by Confidence Pressed by privity which is nothing else but a continuance Of the Confidence without interruption and ordered and guided by Conscience either by the private Conscience of the Feoffee Or the generall Conscience of the Estate which is Chancery The two former of which because they bee matters more throughly beaten and wee shall have occasion to handle them we will not now debate upon But the third we will speake somewhat of both because it is a key to open many of true reasons and termings of uses and because it tendeth to decide out great and principall doubts at this day Cooke Soliciter entring into his Argument of Chudleyes Case said sharply and fitly I will put never a Case but shall be of an use for a use in Law hath no fellow meaning that the learning of uses is not to bee matched with other Learnings Anderson chiefe Justice in the Argument of the same Case did truely and profoundly controule the Vulgar opinion collected upon the fifth E. 4. that there might be Possessio fratris of a use for he said that it was no more but that the Chancelee would consult with the Rules of Law where the intention of the parties did not specially appeare and therefore the private conceipt which Glanvile Justice cited in the 42. Reginae in the case of Corbet in the Common Plea of one of Lincolnes Inne whom he named not but seemed to allow is not sound which was that a use was but a limitation and did ensue the nature of a possession This very conceipt was set on foot in 27. H. 8. in the Lord Darcies Case in which time they began to heave at uses for there after the Realme had many ages together put in ure the passage of uses by Will they began to argue that an use was not deviseable but that it did ensue the nature of the Land and the same yeare after this Statute was made so that this opinion seemeth ever to bee and for ever to an Act of Parliament touching uses and if it bee so meant now meant I like it well but in the meane time the Opinion it selfe is to be recited and because in the same Case of Corbet 3. reverent Judges of the Court of Common Pleas did deliver and publish their Opinion though not directly upon the point adjudged yet obiter as one of the Reasons of their judgement that an use of Inheritance could not be limited to cease and againe that the limitation of a new use could not be to a Stranger ruling uses meerely according to the ground of possession it is worth the labour to examine that learning by 3. Hen. 7. You may collect that if the Feoffees had bin disseised by the Common Law and an Ancestor collaterall of Cesty que use had released unto the disseisor and his warranty had attached upon Cesty que use yet the Chancellour upon this matter shewed would have not respect unto it to compell the Feoffees to execute the Estate unto the disseisor for there the case being that Cesty que use Intayle having made an assurance by fine and recovery and by warranty which descended upon his issue two of the Judges held that the use is not extinct and Bryan and Hussey that held the contrary said that the Common Law is altered by the new Statute whereby they admit that by the Common Law that warranty will not bind and extinct a right of a use as it will doe a right of possession and the reason is because the Law of Collaterall garranty is a hard Law and not to be considered in a Court of Conscience in 5. Edw. 4. It is said that if Cesty que use be attainted quaere who shall have the Land for the Lord shall not have the Land so as there the use doth not imitate the possession and the reason is because the Lord hath a Tent is by Title for that is nothing to the Subpoena because the Feoffees intent was never to advance the Lord but onely his owne bloud and therefore the quaere of the Booke ariseth what the trust and confidence of the Feoffee did tye him to doe as whether he should not sell the Land to the use of the Feoffees Will or in pious uses so favourably they tooke the intent in those dayes as you find in 27. H. 6. that if a man had appointed his use to one for life the remainder in Fee to another and Cesty que use for life had refused because the intent appeared not to advance the Heire at all nor him in reversion presently the Feoffee should have the Estate for life of him that refused some waies to the behoofe of the Feoffer But to proceed in some better order towards the disproofe of this Opinion of limitation there be foure points wherein we will examine the nature of uses The raysing of them The preserving of them The transferring of them The extinguishing of them In all these Foure you shall see apparantly that uses stand upon their owne reasons utterly differing from Cases of possession I would have one Case shewed by men learned by the Law where there is a deed and yet there need a consideration as for paroll the Law adjudgeth it too light to give a use without consideration but a deed ever in Law imports a consideration because of the deliberation and Ceremony in the confession of it and therefore in 8. Reginae it is solemnly agreed that in the Queenes Case a false consideration if it bee of Record will hurt the Patent but want of consideration doth never hurt it and yet they say that a Case is but a nimble and light thing and now contrariwise it seemeth to bee weightier then any thing else for you cannot weigh it up to raise it neither by deed nor deed inrolled without the weight of consideration but you shall never find a reason of this to the Worlds end but in the Law but it is a reason of Chancery and it is this That no Court
the principall case for a Rent out of Land and the Land it selfe in case of possession cannot stand together but the rent shall bee extinct but there the case is that the use of the Land and the use of the Rent shall stand well enough together for a Rent charge was granted by the Feoffee to one that notice of the use had and ruled that the Rent was to the antient use and both uses were in Esse simulet semel and though Brudnell chiefe Justice urged the ground of possession to bee otherwise yet he was over-ruled by the other three Justices and Brooke said unto him he thought he argued much for his pleasure and to conclude wee see the thing may be avoyded and determined by the Ceremonies and Acts like unto those by which are created and raised that which passeth by Livery ought to be avoyded by entry that which passeth by Grant by claime 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 Civill Law saith in his magis consentaneum est quà m ut ijsdem modis res dissolvantur a quibus constituantur for the conception and progression of uses I have for a president in them other Lawes because States and Common-wealths have common accidents and I find in the Civill Law that that which commeth nearest in name to the use is nothing like in matter which is Vsus fructus for Vsus fructus et dominium is with them as with their particular tenancy and inheritance but that which resembleth the use most is fidei Commissio and therefore you shall finde in Ius Lib. 2. That they had a forme in Testaments to give Inheritance to one to the use of another Heredem constituo Cajum rogo antem te Caie ut hereditatem restituas and the Text of the Civilians saith that for a great time if the Heire did not as he was required Cesty que use had no remedy at all untill about the time of Augustus Caesar there grew in custome a flattering forme of trust for they penned it thus Rogo te per salutem Augusti or Per fortunam Augusti c. whereupon August us tooke the breach of trust to sound in derogation of himselfe and made a Commission to the Praetor to give remedy in such Cases whereupon within the space of a hundred yeares these trusts did spring and speed so fast as they were forced to have a particular Chancellor onely for uses who was called Praetor fidie Commissarius and long after the inconvenience of them being found they resorted unto a Remedy much like unto this stature for by two Decrees of Senate called Senatus consult Frebesianum et Pegasianum they made Cesty que use to be Heire in substance I have sought likewise whether there bee any thing which maketh with them in our Law and I finde the Persian chiefe Barron in the Argument of Chudleyes Case compareth them to Coppy-holders and aptly for many respects First because an use seemeth to bee an hereditament in the L. Court Secondly this conceipt of Limitation hath beene troublesome in Coppy-holders as well as in Vses for it hath beene of late dayes questioned whether there should be Tenancy by the Courtesie dis-continuances and recoveries of Coppy-holders in the nature of Inheritances at the Common Law and still the judgements have weighed that you must have particular Customes in Coppy-holds as well as particular Reasons of Conscience in use and the limitation recited And Thirdly because they both grew to no remedy at all against the Lord and were as tenancy at will afterwards it grew to have remedy in Chancery afterwards against their Lords by Trespasse at the Common-Law and now lastly the Law is taken by some that they have remedy by Ejectione firma without a speciall custome of leasing doe no doubt in uses at the first the Chancery made question to give remedy until uses grew more generall and the Chancery more eminent and then they grew to have remedy in Conscience but they could never obtaine any manner of Remedy at the Common Law neither against the Feoffee nor against Strangers but the Remedy against the Feoffee was best by Subpoena and the remedy against Sttangers to the Feoffee Now for the Cases whereupon uses were but in practice Cooke in his Reading doth say well that they were produced sometimes for feare 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 Lands by the Common Law of England were not Testamentary or deviseable and of late yeares since the Statute the Case of the conveyance for sparing of Purchases and Execution of Estates and now last of all expresse liberty of Will in mens minds affecting to have the assurance of their Estate and Possession to be revokeable in their owne times and irrevocable after their owne times Now for the Commencement and proceeding of them I have considered what it hath beene in course of Common Law and what it hath beene in course of Statute for the Common Law the conceipt of Shelly in 24. H. 8. and of Polard in 27. H 8. seemeth to me to bee without ground which was that the use succeeded the Tenure for that the Statute of Quia emptores terrarum which was made 18. E. 1. had taken away the Tenure betweene the Feoffer and the Feoffce and left it to the Lord Paramount they said that the Feoffment being then meerely without consideration should therefore intend an use to the Feoffer which cannot be for by that reason if the Feoffment before the Statute had beene made Tenendum de Capitalibus Dominis as it must be there should have beene an Use unto the Feoffer before that Statute And againe if a Grant had beene made of such things as consists not in Tenure as Advowsons Rents Villeins and the like there should have beene a Use of them wherein the Law was quite contrary for after the time that Uses grew common it was neverthelesse a great doubt whether things that did lye in Grant did not carry a consideration in themselves because of the Deed And therefore I do judge that the intendment of a Use to the Feoffer where the Feoffment was made without consideration grew long after when Uses waxed general and for this reason because when Feoffments were made and that it rested doubtfull whether it were in use or in Purchase because Purchases were things notorious and Uses were things secret The Chancellor thought it more convenient to put the Purchasor to proove his consideration then the Feoffer and his Heires to prove the trust and so made the indentment towards the Use and put the proofe upon the Purchasor And therefore as Uses were at the Common Law in reason for whatsoever is not by Statute nor against Law may be
before a day either purchase Lycence to amortise them or alien them to some other use or other Feoffments to come they should bee within the Statute of Mortmayne 4. Hen. 4. Cap. 7. the Statute of 17. Richard 2. is inlarged in the limitation of time for whereas the statute did limit the Action to be brought within the yeare 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 yeares from the time of the Action growne 11. Henry 6. Cap. 3. that Statute of 4. Henry 4 is declared because the conceipt was upon the Statute that in Case of Disseisin the limitation of the life of the Disseisor went onely to the assise of Non et disseisin and to no other Action and therefore that Statute declareth the former Law to extend to all other Actions grounded upon Novel disseisin 11. Henry 6. Cap. 5. A Statute was made for reliefe of him in remainder against particular Tenants for Lives or yeares that Assigned over their Estates and tooke the profits and then committed wast against them therefore this Statute giveth an Action of wast being provisors of the profits in all this course of Statutes no reliefe is given to Purchasors that come in by the party but to such as come in by Law as Defendants in Praecipes whether they be Creditors Disseisors or Lessors and that onely of Mortmayne and note also that they be all in Cafes of speciall Convenous intents as to defeate Executions tenancy to the Praecipe and the Statute of Mortmayne as Provisors from 11. Henry 6. to 1. R. 3. being the space of fifty yeares there is a silence of Vses in the Statute Booke which was at that time when no question they were favoured most in 1. Richard 3. Cap. 1. commeth the great Statute for reliefe of those that come in by the party and at that time an use appeareth in his likenesse for there is not a word spoken of taking the profits to describe a use by but of clayming to a use and this Statute ordayned that all Gifts Feoffments Grants c. shall be good against the Feoffors Dowers and Grantors and all other persons clayming onely to their use so as here the Purchasor was fully relieved and Cesty que use was obiter enabled to charge his Feoffees because there were no words in the Statute of Feoffments Grants c. upon good consideration but generally in Henry 7. time new Statutes were made for further helpe and remedy to those that came in by Act in Law as first 11. Henry 7. Cap. 1. a Formedon is given without limitation of time against Cesty que use and obiter because they make him a Tenent they give him advantage of a Tenant as of age and voucher quaere 4. Henry 7. 17. the Ward-ship of the Heire of Cesty que use is dying and no Will declared is given to the Lord as if he had dyed seised in Demeasne and Action of wast given to the Heire against the Gardian and dammages if the Lord were barr'd in his writ of Ward and reliefe is likewise given unto the Lord if the heire holding the Knights service be of full age 19. Henry 7. Cap. 5. there is reliefe given in three Cases first to the Creditors upon matters of Record as upon Recognizance Statute or Judgement whereof the two former were not ayded at all by any Statute and the last was ayded by a Statute of 50. E. 3. and 2. Richard 2. onely in Case of Sanctuary men Secondly to the Lords in foccage for their reliefe and Herriots upon death which was omitted in the 4. Henry 7. and lastly to the Lords of Villeyns upon a purchase of their Villeyns in use 13. Henry 8. Cap. 10. a further Remedy was given in a Case like unto the case of Mortmayne for in the Statute of 15. Richard 2. 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 Act or worke and to a body as to the reparation of a Church or an Abbot or to a guild or Fraternities as are onely in reputation but not incorporate as to Parishes or such guilds or Fraternities as are onely in reputation but not incorporate that 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 voyd neither doth the Statute expresse to whose benefit the use shall be made voyd either the Feoffor or Feoffee but leaveth it to Law and addeth a Provisoe that uses may bee limited twenty yeares from the gift and no longer This is the whole course of Statute Law before this Statute touching Uses thus have I set forth unto you the nature and definition of an Vse the differences and trust of an Vse and the parts and qualities of it and by what Rules and termings Uses shall bee guided and ordered by a President of them in our Lawes the causes of the springing and spreading of Uses the continuance of them and the proceedings that they have had both in Common Law and Statute Law whereby it may appeare that a Vse is no more but a generall trust when any one will trust the Conscience of another better then his owne Estate and Possession which is accident or event of humane Society which hath bin and will be in all Lawes and therefore was at the Common Law which is common reason Fitz Herbert saith in the 14. Henry 8. common reason is Common Law and not Conscience but common reasons doth define that Uses should be remedied in Conscience and not in Courts of Law and ordered by Rules in Conscience and not by streight Rules of Law for the Common Law hath a kind of a Rule and survey over the Chancery and therefore we may truely conclude that the force and strength that a Vse had or hath in Conscience is by Common Law and the force that it had or hath by Common Law is onely by Statutes Now followeth in time and matter the consideration of this Statute of principall labour for those former considerations which wee have handled serve but for introduction This Statute as it is the Statute which of all other hath the greatest power and operation over the Heritages of the Realme so howsoever it hath beene by the humour of the time perverted in exposition yet in it selfe is most perfectly and exactly conceived and penned of any Law in the Booke induced with the most declaring and perswading Preamble consisting and standing upon the wisest and fittest Ordinances and qualified with the most fore-seeing and circumspect savings and promises and lastly the pondred in all the words and clauses of it of any Statute that I find but before I come to the Statute it selfe I will note unto you three matters of Circumstance The time of the Statute The Title of it
The LEARNED READING Of Sir Francis Bacon One of her Majesties learned Counsell at Law upon the Statute of USES Being his double Reading to the Honourable Society of GRAYES Inne Published for the Common good LONDON Printed for Mathew Walbancke and Laurence Chapman 1642. The Learned Reading of Sir FRANCIS BACON upon the Statute of Vses I Have chosen to Read upon the Law of Vses made 27. Hen. 8 a Law whereupon the Inheritances of this Realme are tossed at this day like a Ship upon the Sea in such sort that it is hard to say which Barke will sinke and which will get to the Haven that is to say what assurances will stand good and what will not whether is this any lack or default in the Pilots their grave and learned Judges but the Tydes and Currents of received errours and unwarranted and abusive experience have bin so strong as they were not able to keepe a right course according to the Law so as this Statute is in great part as a Law made in the Parliament held 35. Reginae for in 37. Reginae by the notable judgement upon solemne Arguments of all the Judges assembled in the Exchequet Chamber in the famous case betweene Dillon and Fraeyne concerning an assurance by Chudley this Law began to be reduced to a true and sound Exposition and the fall and perverted Exposition which had continued for so many yeares but never countenanced by any rule or authority of weight but onely intertained in a popular conceipt in practice at adventure grew to be controled since which time as it commeth to passe alwaies upon the first reforming of inveterate errours many doubts and perplexed Questions have risen which are not yet resolved nor the Law thereupon setled The consideration whereof moved me to take the occasion of performing this particular duty to the House to see if I could by my travell bring to a more generall good of the Common wealth Herein though I could not be ignorant of the difficulty of matter which he that taketh in hand shall soone find or much leffe of my owne unablenesse which I had continuall sence and feeling of yet because I had more meanes of absolution then the younger sort and more leasure then the greater sort I did thinke it not impossible to worke some profitable effect the rather because where an inferior wit is bent and conversant upon one Subject he shall many times with patience and meditation dissolve and undoe many of the knots which a greater wit distracted with many matters would rather cut in two then unknit at the least if my intention or judgement be too barren or too weake yet by the benefit of other Arts I did hope to dispose or digest the authorities or Opinions which are in Cases of use in such order and method as they should take light one from another though they tooke no light from me and like to the matter of my Reading shall my manner be for my meaning is to revive and recontinue the antient sonne of Reading which you may see in Mr. Frowickes upon the Prerogative and all other Readings of ancient time being of lesse ostentation and more fruite then the manner lately accustomed for the use then was substantially to expound the Statutes by grounds and diversities as you shall find the Readings still to run upon case of the like Law and contrary Law whereof the one includes the learning of a difference and not to stir concise and subtile doubâ—s or to contrive tedious and intricate Cases whereof all saving one are buried and the greater part of that one case which is taken is commonly nothing to the matter in hand but my labour shall be in the antient course to open the Law upon doubts and not doubts upon the Law Expositio Statuti THe Exposition of this Statute consists upon the matter without the Statutes upon the matter within the Statute Three things concerning these Statutes and all other Statutes which are helpes and inducements to the right understanding of my Statute and yet are no part of the Statute it selfe The consideration of the Statute at the Common Law The consideration of the mischiefe which the Statute intendeth to redresse as any other mischiefe which an Expositor of the Statute this way or that way may breed Certaine Maximes of the common Ley touching Exposition of Statutes having therefore framed sixe divisions according to the number of Readings upon the Statute it selfe I have likewise divided the matter without the Statute into sixe Introductions or Discourses so that for every dayes Reading I have made triple proposition 1. Vn Preface or Introduction 2. Vn Division upon the Law it selfe 3 A few brief Casas for Exercise and Argument The last of which I would have forborne and according to the antient manner You should have taken some of my points upon my Divisions one two or more as you should have thought good save that I had this regard that the younger sort of the Barre were not so conversant upon matters upon the Statutes and for that Case I have interlaced some matters at the Common Law that are more familiar within the books The first matter I will Discourse unto you is the nature and definition of an use and his Incession and Progression before the Statute The Second Discourse shall be of the second spring of this Tree of Uses since the Statute The Third Discourse shall be of the Estate of the assurance of this Realme at this day upon Uses and what kind of them is convenient and reasonable and not fit to be touched as far as sence of Law and naturall construction of the Statute will give leave and what kind of them is convenient and meete to bee suppressed The Fourth Discourse shall be of certaine Rules and Expositions of Lawes applyed to this present purpose The Fifth Discourse shall bee of the best course to remedy the same inconveniences now a foot by construction of the Statute withoutoftering violence to the letter or sence The Sixt and last Discourse shall be of the best course to remedy the same inconveniences and to declare the Law by Act of Parliament which last I thinke good to reserve and not to publish The nature of a use is best discerned by considering what it is not and then what it is for it is the nature of all humane Science and knowledge to proceed most safely by Negative and exclusive First use is no right title or interest in Law and therefore Master Attorney who read upon this Statute said well that there are but two rights Ius in Re Ius ad Rem The one is an Estate which is Ius in Re the other a demand which is Ius ad Rem but a use is neither so that in 24. H. 8. it is said that the saving of the Statute of I. R. â— which saveth any right or interest of Intayle must be understood of Intayles of the
of Conscience will enforce Omnium gratuitum though the intent appeare never so clearely where it is not executed or sufficiently passed by Law but if mony had beene paid and so a person dampnified or that it was for the establishment of his House then it is a good matter in the Chancery so againe I would see in the Lawes a Case where a man shall take by a Conveyance bee it by Deed Livery or Word that is not party to the grant I doe not say that the delivery must be to him that takes by the Deed for a Deed may be delivered to one man to the use of another neither doe I say that he must be party to the delivery of the Deed for he in the remainder may take though hee be not party but he must be party to the words of the grant here againe the Case of the use goeth single and the reason is because a conveyance in use is nothing but a publication of the trust and therefore so as the party trusted bee declared it is materiall to whom the publication bee so much for the raysing of uses There is no Case in the Common Law wherein notice simply and nakedly is materiall to make a Covin or particeps Criminis and therefore if the Heire which is in by discent infeoffee one which had notice of the disseisin if he were not a Disseisor de facto it is nothing so in 33. H. 6 if a Feoffment be made upon collusion and feoffee makes a feoffment over upon good consideration the collusion is discharged and it is not materiall if they had notice or no so as it is put in 14. H 8. if a sale be made in a Market over upon consideration although it be to one that hath notice that they are stollen goods yet the property of a Stranger is bound though in the Booke before remembred 35. Hen. 6 some opinion to the contrary which is clearely no Law so in E. 3. if assets discend to the Heire and hee alien it upon good consideration although it be to one that had notice of the Debt or of the Warranty it is good enough So if a man enter of purpose into my Lands to the end that a Stranger which hath right should bring his Praecipe and evict the Land I may enter notwithstanding any such recovery but if hee enter having notice that the Stranger hath right and the Stranger likewise having notice of his entry yet if it were not upon Confederacy or collusion betweene them it is nothing and the reason of these Cases is because the Common Lawlooketh no furtherthen to see whether the Act were meerely Actus fictus in fraudem legis and wheresoeverit findeth consideration given it dischargeth the covin. But come now to the Case of use and there it is otherwise as it is in 14. H. 8. and 28. H. 8. and diverse other Bookes which prove that if the Feoffee sell the Land for good consideration to one that hath notice the Purchaser shall stand seized to the antient use and the reason is because the Chancery looketh further then the Common Law to the corrupt Conscience of him that will deale in the Land knowing it in equity to bee anothers and therefore if there were Radix Amaritudinis the consideration purgeth it not but it is at the perill of him that giveth it so that consideration or no consideration is an issue at the Common Law but notice on notice is an issue in the Chancery and so much for the preserving of uses For the transferring of uses there is no case in Law whereby an Action is transferred but the Subpoena in case of use was alwayes assigneable nay further you find twice 27. H. 8. Fol. 10. Pla. 9. Fo. 30. and Pla. 21. that a right of use may be transferred for in the former case Montague maketh the objection and saith that a right of use cannot be given by Fine but to him that hath the Possession Fitz Herbert answereth Yes well enough quaere the reason saith the booke And in the latter Case where Cesty 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 Fitz Herbert said I marvell 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 beene made so the great difficulty in 10. Reginae Delamers Case where the case was in effect Tenant in tayle of an use the remainder in Fee Tenant in tayle made a Feoffment in Fee Tenant by the Statute of I. R. 3. and the Feoffee infeoffed him in the remainder of the use who made it over and there question being made whether the second Feoffee should have the use in remainder it is said that the second Feoffee must needs have the best right in Conscience because the first Feostee claimed nothing but in trust and the rest que use cannot claime it against his sale but the reason is apparant as was touched before that a use in Esse was but a thing in action or in suite to be brought in Court of Conscience and where the Subpoena was to be brought against the Feoffee out of possession to recontinue the Estate alwayes the Subpoena might bee transferred for still the Action at the Common Law was not stir'd but remained in the Feoffee and so no mischiefe of maintenance or transferring rights And if a use being but a right may bee assigned and pass'd over to a Stranger a multo fortiori it may bee limited to a Stranger upon the privity of the first conveyance as shall bee handled in another place and as Glanvile Justice said hee could never find by any booke or evidence of antiquity a continge use limited over to a Stranger I answer First it is no marvell that you find no Case before E. 4. time of contingent uses where there bee not sixe of uses in all and the reason I doubt was men did choose well whom they trusted and trust was well observed and at this day in Ireland where uses be in practise Cases of uses come seldome in question except it bee sometimes upon the alienations of Tenants in tayle by Fine that the Feoffees will not bee brought to execute Estates to the dis-inheritance of antient bloud but for experience and the conveyance there was nothing more usuall in Obysts then to will the use of the Land to certaine persons and their heires so long as they shall pay the Chancery Priests their Wages and in default of payment to limit the use over to other persons and their Heires and so in case of forfeiture through many degrees and such conveyances are as antient as R. 2. time Now for determining and extinguishing of uses I put the case of collaterall garranty before and to that the notable case of 14. H. 8. Hautsemmes Case where this very point was in
said to be at the Common Law and both the generall trust and the speciall were things not prohibited by the Law though they were not remedied by the Law so the Experience and practice of Uses were not ancient and my reasons why I think so are these First I cannot find in my Evidence before King R. 2. his time the clause ad opus et usum and the very Latin phrase was much purer as you may see by Bractons Writing and by ancient Patents and Deeds and chiefly by the Register of Writs which is good Latin wherein this phrase ad opus usum and the Words ad opus is a barbarous phrase and like enough to be in the pennin of some Chaplaine that was not much past his Grammer where he had found Opus usus coupled together and that they did governe an Ablative case as they do indeed since this Statute for they take away the Land and put them into a conveyance Secondly I find in no private Act of Attainder in the clause of Forfeiture of Lands S which he hath in possession or in Use untill Ed. 4. his Reigne Thirdly I find the Word vse in no Statute untill 7. Rich. 2. cap. 11. of Provisoes and in 15. Ric. 2. of Mortmame Fourthly I collect out of Cookes speech in 8. Edw. 4. where he sayth that by the advice of all the Judges it was thought that the Subpoena did not lye against the Heire of the Feoffee which was in by Law but Cesty que vse was driven to his Bill in Parliament that Uses even in that time were but in their infancy for no doubt but at the first the Chancery made difficulty to give Remedy at all but to leave it to the particular Conscience of the Feoffee But after the Chancery grew absolute as may appeare by the Statute of 15. Hen. 6. that complaints in Chancery should enter into Bond to prove their suggestions which seemeth that the Chancery at that time began to imbrace too farre and was used for vexation yet neverthelesse it made scruple to give remedy against the Heire being in by Act in Law though he were privy so that it cannot be that Uses had beene of any great continuance when they made a question As for the Case of Matrimony Prelomti 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 Booke commonly vouched of Ass. where the Earle calleth the possession of a Conizee upon a Fine levied by consent an entry in Auterdroit and 44. of E. 3. 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 Richard 2 his time and the great multiplying and over-spreading of them was partly during the Wars in France which drew most of the Nobility to be absent from their Possessions and partly during the time of the Trouble and Civill War betweene the two houses about the Title of the Crowne Now to conclude the Progression of Uses in course of Statutes I do note three speciall points That a Use had never any force at all at the common-Common-Law but by Statute Law That there was never any Statute made directly for the benefit of Cesty que Vse as that the Discent of an Use should toll an Entry or that a Release should be good to the partner of the profits or the like but alwayes for the benefit of Strangers and other persons against Cesty que use and his Feoffees For though by the Statute of Richard 3. he might alter his Feoffees yet that was not the scope of the Statute but to make good his assurance to other persons and the other came in Et obliquo That the speciall intent unlawfull and covenous was the Originall of Uses though after it induced to the lawfull intent generall and speciall For 5. Edward 3. is the first Statute I finde wherein mention is made of the taking of profits by one where the Estate in Law is another For as to the opinion in 27. Henr. 8. that in case of the Statute of Marlebridge the Feoffors took the profits it is but a conceite for the Law is this day that if a man infeoffee his Eldest Sonne within age and without consideration although the profits be taken to the use of the Sonne yet it is a Feoffment within the Statute of Religiosis and as for 7. Edward 1. which prohibits generally that Religious persons should not purchase Arte vel ingenio yet it maketh no mention of a Vse but it saith Colore donationis termini vel alicusus tituli reciting there three formes of conveyances the gift the long Lease and faigned Recovery which gift cannot bee understood of a gift to a Stranger to their use for that came to be holpen by 15 Richard 2. long after but to proceed in 5. Edward 3. a Statute was made for the reliefe of Creditors against such as made covin gifts of their Lands and goods and conveyed their bodies into Sanctuaries there living high upon others goods and therefore that Statute made their Lands liable to their Creditors Executions in that particular Case if they tooke the profits In 5. Richard 2. a Statute was made for reliefe of those as had right of Action against those as had renounced the tenancy of the Praecipe from them sometimes by infeoffing great persons for maintenance and sometimes by secret Feoffments to others whereof the Defendants could have no notice and therefore the Statute maketh the recovery good in all Actions against the first Feoffees as they tooke the profits and see that the Defendants bring their Action within a yeare at their expulsion 2. Richard 2. Cap. 3. Session 2. an imperfection of the Statute of 50. Edward 3. was holpen for whereas the statute tooke no place but where the Defendant appeared and so was frustrated the Statute giveth upon Proclamation made at the Gate of the place priviledged that the Land should be liable without apparance in 7. R. 2. A Statute was made for the restraint of Aliens to take thy Benefices or dignities Ecclesiasticall or Farmes of Administration to them without the Kings speciall Lycence upon paine of the Statute of Provisors which being remedied by a former Statute where the Alien tooke it to his owne use it is by that Statute remedied where the Alien tooke it to the use of another as it is said in the Booke though I ghesse that if the Record were searched it should be if any other purchased to the use of an Alien and that the words or to the use of another should be or any other to his use 15. Rich. 2. Cap. 5. a Statute was made for the reliefe of Lords against Mortmayne where Feoffments were made to the use of Corporations and an Ordinance made that for Feoffments past the Feoffees should
The President or patterne of it For the time of it was in 27. Henry 8. when the King was in full peace and a wealthy and flourishing Estate in which nature of time men are most carefull of their Possessions aswell because Purchases are most stirring as againe because the Purchasor when hee is full is no lesse carefull of his assurance to his Children and of disposing that which he hath gotten then hee was of his bargaine for the compassing thereof About that time the Realme likewise began to be infranchised from the Tributes of Rome and the Possessions that had beene in Mortmayne began to stirre abroad for this yeare was the suppression of the smaâ—ler Houses of Religion all tending to plenty and purchafing and this Statute came in consort with divers excellent Statutes made for the Kingdome in the same Parliament as the reduction of Wales to a more civill Government the re-edifying of diverse Cities and Townes the suppressing of depopulation and inclosures For the Title it hath one Title in the Role and another in course of Pleading the Title in the Role is no solemne Title but an Act title 5 an Act expressing an Order for Uses and Will the Title in course of Pleading is Statutum de usibus in Possessionem transferendis wherein Walmsly Iustice noted well 4. Reginae that if a man looke to the working of the Statute hee would thinke that it should be turned the other way De possessionibus ad usus transferendis for that is the course of the Statute to bring Possession to the Vse but the Title is framed not according to the worke of the Statute but according to the scope and intention of the Statute Nam quod primum est in intentione ultimum est in operatione the intention of the Statute by carrying the Possession to the use is to turne the use to a Possession for the words are not De possessionibus ad usus transferendis and as the Grammarian saith Praepositio ad denotat notam actionis sed prepositio in cum Accusativo denotat notam alterationis and therefore Kingsmill Justice in the same Case saith that the meaning of the Statute was to make a transsubstantiation of the use unto a Possession but it is to be noted that Titles of Acts of Parliament severally came in but in the 5. Henry 8. for before that time that was but one Title of all the Act made in one Parliament and that was no Title neither but a generall Preface of the good intent of the King but now it is parcell of the Record For the President of this Statute upon which it is drawne I doe finde by the first Richard 3. whereupon you may see the very mould whereon this Statute was made that the said King having beene infeoffed before he usurped to Uses as it was ordained that the Land whereof he was joyntly infeoffed as if hee had not beene named and where he was solely inseoffed it should bee in Cesty que use in Estate as he had the use Now to come to the Statute it selfe the Statute consisteth as other Lawes doe upon a Preamble the Body of the Law and certaine saving and Premisses The Preamble setteth forth the inconveniences the Body of the Law giveth the Remedy and the savings and Provisoes take away the inconveniences of the remedy for new Lands are like the Apothecaries Druggs though they remedy the Disease yet they trouble the body and therefore they use to correct with Spices so it is not possible to find a Remedy for any mischiefe in the Common Wealth but it will beget some new mischiefe and therefore they spice their Lawes with Provisoes to correct and qualifie them The Preamble of the Law was justly commended by Popham chiefe Justice in 36. Regine where hee saith that there is little need to search and collect out of Cases before the statute what the mischiefe was which the scope of the Statute was to redresse because there is a shorter way offered us by the sufficiency and fulnesse of the Preamble and therefore it is good to consider it and ponder it throughly The Preamble hath three parts First a recitall of the principall inconveniences which is the root of all the rest Secondly an ennumeration of diverse particular inconveniences as branches of the former Thirdly a taste or briefe note of the remedy that the Statute meaneth to apply the principall inconvenience which is Radix omnium malorum is the directing from the grounds and principalls of the Common Law by inventing a meane to transfer Lands and Inheritances without any solemnity or Act notorious so as the whole Statute is to be expounded strongly towards the extinguishment of all conveyances whereby the Free hold or Inheritance may passe without any new confections of Deeds Executions of Estate or entryes except it bee where the Estate is of privity and dependance one towards the other in which Cases Mutatis mutandis they might passe by the Rules of the Common Law The particular inconveniences by the Law rehearsed may bereduced into foure heads First that these conveyances in use are weake for consideration Secondly that they are obscure and doubtfull for tryall Thirdly that they are dangerous for want of notice and publication Fourthly that they are exempted from all such Titles as the Law subjecteth Possessions unto The first inconvenience lighteth upon Heires The second upon Jurors and Witnesses The third upon Purchasors The fourth upon such as come in by gift in Law All which are persons that the Law doth principally respect and favour For the first of these are three impediments to the judgement of man in disposing justly and advisedly of his Estate 5 First trouble of mind Secondly want of time Thirdly of wise and faithfull Counsell about him And all theso three the Statute did finde to bee in the disposition of an Use by Will whereof followed the unjust dis-inheresin of Heires now the favour of Law unto Heires appeareth in many parts of the Law as the Law of discent priviledgeth the Possession of the Heire against the entry of him that hath right by the Law no man shall warrant against his Heire except he warrant against himselfe and diverse other Cases too long to stand upon and wee see the antient Law in Glanvills time was that the Ancestor could not dis-inherit his Heire by Grant or other Act executed in time of sicknesse neither could he alien Land which had discended unto him except it were for consideration of mony or service but not to advance any younger Brother without the consent of the Heire For tryalls no Law ever tooke a streighter course that Evidence should not be perplexed nor Juries inveigled then the Common Law of England as on the other side never Law tooke a more precise and straight course with Juries that they should give a direct verdict for whereas in manner all Lawes doe give the Tryers or
Jurors which in other Lawes are called Judges De facto to give no liquet that is to give no verdict at all and so the Case to stand abated our Law enforceth them to a direct verdict generall or speciall and whereas other Lawes except of Plurality of voyces to make a verdict our Law enforceth them all to agree in one and whereas other Lawes leave them to their owne time and ease and to part and to meete againe our Law duresse and imprison them in the hardest manner without light or comfort untill they bee agreed in consideration of straightnesse and cohersion it is consonant that the Law doe require in all matters brought to issue that there be full proofe and evidence and therefore if the matter in it selfe bee of that surety as in simple Contracts which are made by paroll without writing it alloweth wager of Law In issue upon the meere right which is a thing hardly to discerne it alloweth wager of Battaile to spare Jurors if time have wore out the markes and badges of truth from time to time there have beene Statutes of limitation where you shall find this mischiefe of Perjuries often recited and lastly which is the matter in hand all Inheritances could not passe but by Acts overt and notorious as by Deeds Livery and Records For Purchasors Bona fide it may appeare that they were ever favoured in our Law as first by the great favour of Warranties which were ever for the helpe of Purchasors as whereby the Law in 5. Edw. 3. time the Disseisor could not enter upon the Feoffee in regard of the Warranty so againe the Collaterall garranty which otherwise as a hard Law grew in doubt onely upon favour of Purchasors so was the binding of Fines at the Common Law the invention and practice of Recoveries to defeate the Statute of intayles and many more grounds and learnings are to bee found respect the quiet of the Possession of Purchasors and therefore though the Statute of 1 Richard 3. had provided for the Purchasor in some sort by enabling the Acts and conveyances of Cesty que use yet neverthelesse the State did not at all disable the Acts or charges of the Feoffees and so as Walmesly Justice said 42. Regine they played at double hand for Cesty que use might sell and the Feoffee might sell which was a very great uncertainty to the Purchasor For the fourth Inconvenience towards those that come in by Law conveyances in Uses were like priviledge places or liberties for as there the Law doth not run so upon such conveyances the Law could take no hold but they were exempted from all Titles in Law no man is so absolute Owner of his Possessions but that the wisedome of the Law doth reserve certaine Titles unto others and such persons come not in by the pleasure and disposition of the party but by the Justice and consideration of Law and therefore of all others they are most favour'd and also they are principally three The Kings and Lords who lost the benefit of Attaindors Fines for alienations Escheates Aydes Herreots Reliefes c. The Defendants in Praecipes either reall or personall for Debt and Damages who lost the benefit of their Recoveries and Executions Tenants in Dower and by the Curtesie who lost their Estates and Tythes First for the King no Law doth endow the King or Soveraigne with more from Suites and Actions his Possessions from interuption and disturbance his Right from limitation of time his Pattents and Gifts from all deceites and false suggestions Next the King is the Lord whose duties and rights the Law doth much favour because the Law supposeth the Land did Originally come from him for untill the Statute of Quia emptores terrararum the Lords was not forced to distruct or dismember his Signiory or service so untill 15. Henry 7. the Law was taken that the Lord upon his Title of Wardship should be put to a conizee of a Statute or a Termor so againe we see that the Statute of Mortmaine was made to preserve the Lords Escheats and Wards the Tenant in Dower is so much favoured as that it is the common by word in the Law that the Law favoureth three things 1. Life 2. Liberty 3. Dower So in Case of Voucher the Feme shall not be delayed but shall recover against the Heire incontinent so likewise of Tenant by courtesie it is called Tenancy by the Law of England and therefore specially favoured as a proper conceipt and invention of our Law so as againe the Law doth favour such as have antient Rights and therefore it telleth us it is commonly said that a Right cannot dye and that ground of Law that a Free hold cannot bee in suspence sheweth it well insomuch that the Law will rather give the Land to the first commer which we call an Occupant then want a Tenant to a Strangers Action And againe the other ancient ground of Law of Remitter sheweth that where the Tenant faileth without folly in the Defendant the Law executeth the antient Right To conclude therefore this point when this practice of Feoffments in use did prejudice and dampnifie all those persons that the antient Common Law favour'd and did absolutely crosse the wisedome of the Law to have conveyances considerate and not odious and to have Tryall thereupon cleare and not inveighed it is no marvaile that the Statute concludeth that their subtile imaginations and abuses tended to the utter subversion of the ancient Common Lawes of this Realme The third part of the Preamble giveth a touch of the Remedy which the Statute intendeth to minister consisting in two parts First the expiration of Feoffments Secondly the taking away of the hurt damage and deceipt of the Uses out of which have bin gathered two extremities of opinions The first Opinion is that the intention of the Statute was to discontinue and banish all conveyances in Use grounding themselves both upon the words that the Statute doth not speake of the extinguishment or extirpation of the Use viz. by an unity of Possession but of an extinguishment or extirpation of the Feoffment c. which is the conveyance it selfe Secondly out of the words abuse and errours heretofore used and accustomed as if Uses had not beene at the Common Law but had onely an erroneous device or practice To both which I answer To the former that the extirpation which the Statute meant was plaine to bee of the Feoffees Estate and not to the forme of conveyances To the latter I say that for words Abuse that may bee an abuse of the Law which is not against Law as the taking long Leases at this day of Land in Capite to defraud Wardships is an abuse of the Law which is not against Law and by the words Errour the Statute meant by it not a mistaking of the Law but wandring or going astray or digressing from the antient practice of the Law unto a buy course as when we
say Erravimus cum patribus juris it is not meant of ignorance onely but of perversity but to prove that the Statute meant not to suppresse the forme of conveyances there be 3. Reasons which are not answerable The first is that the Statute in the very Branch thereof hath words De futuro s. that are seised or hereafter shall be seised and whereas it may be faid that these words were put in in regard of Uses suspended by disseisins and so no present seisin to the use untill a regresse of the Feoffees that intendment is very particular for commonly such Cases are brought in by Provisoes or speciall Branches and not intermixed in the body of a Statute and it had beene easie for the Statute to have or hereafter shall be seised upon any Feoffment c. heretofore had or made The second Reason is upon the words of the Statute of Inrolements which saith that no hereditaments shall passe c. of any Use thereof c. whereby it is manifest that the Statute meant to leave the forme of conveyance with the addition of a further Ceremony The third Reason I make is cut of the words of the Provisor where it is said that no primer Seisin Livery no Fine nor Alienation shall bee taken for any Estate executed by force of the Statute of 27. 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 regresse and lastly which is more then all if they have had any such intent the Case being so generall and so plaine they would have had words expresse that every limitation of use made after the Statute should have beene voyd and this was the Exposition as tradition goeth that a Reader of Grayes Inne which Read soone after the Statute was in trouble for and worthily who as I suppose was Boy whose Reading I could never see but I doe now insist upon it because now againe some in an immoderate invective against Uses doe relaps to the same opinion The second Opinion which I called a contrary extremity is that the Statute meant onely to remedy the mischiefes in the Preamble recited as they grew by reason of divided Uses and although the like mischiefe may grow upon the contingent Uses yet the Statute had no fore-sight of them at that time and so it was meerely a new Case not comprised Whereunto I answer that it is the worke of the Statute to execute the divided Use and therefore to make an Use voyd by this Statute which was good before though it doth participate of the mischiefe recited in the Statute where to make a Law upon a Preamble without a perview which were grosly absurd But upon the question what Uses are executed and what not and whether out of Possessions 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 dayes Discourse and so much touching the Preamble of this Law For the Body of the Law I would wish all Readers that expound Statutes to doe as Schollers are willed to doe that is first to seeke out the principall Verbe that is to note and single out the materiall words whereupon the Statute is framed for there are in every Statute certaine words which are as veines where the life and bloud of the Statute commeth and where all doubts doe arise and the rest are Literae mortuae fulfilling words The Body of the Statute consisteth upon two Parts First a Supposition or Case put as Anderson 361. Reginae calleth it Secondly a Perview or Ordinance thereupon The Cases of the Statute are three and every one hath his purview The generall Case The Case of Cofeoffees to the use of some of them And the generall Case of Feoffees to the Use or percemans of Rents or profits The generall Case is built upon Eight materiall words Foure on the part of the Feoffees Three on the part of Cesty que use and one common to them both The first materiall word on the part of the Feoffees is the word Person This excludes all aliances for there can be no trust repos'd but in a person certaine it excludes againe all Corporations for they are evalled to a Use certaine for note on the part of the Feoffer over the Statutc insists upon the word Person and in the part of Cesty que use that added body Politique The second word materiall is the word Seis'd this excludes Chattells the reason is that the Statute meant to remit the Common Law and not the Chattells might ever passe by Testament or by paroll therefore the Use did not pervert them it excludes Rights for it is against the Rules of the Common Law to Grant or Transferre Rights and therefore the Statute would execute them Thirdly it excludes contingent Uses because the seisin cannot be but to a Fee-simple of a Use and when that is limited the seism of the Feoffee is spent for Littleton tells us that there are but two seisins one in Dominio ut de feodo the other Vt de feodo et jure and the Feoffee by the Common Law could execute but the Fee-simple to Uses present and not Post Uses and therefore the Statute meant not to execute them The third materiall word is Hereafter that bringeth in Conveyances made after the Statute it brings in againe conveyances made before and disturb'd by disseisin and recontinued after for it is not said infeofted to Use hereafter seis'd The fourth word is Hereditament which is to be understood of those things whereof an Inheritance is in Esse for if I grant a Rent charge de novo for life to a 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 a Use cannot be to a use The first word on the part of Cesty que use is the word Use Confidence or Trust whereby it is plaine that the Statute 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 againe which excludeth all aliances it excludeth also alldent Uses which are not to Bodies lively and naturall as the building of a Church the making of a Bridge but here as noted before it is ever coupled with body Politicke The third word is the word Other for the Statute meant not to crosse the Common Law now at this time Uses were growne to such a familiarity as men could not thinke of Possession but in course of Use and so every man was seised to his owne Use as well as to the Use of others therefore because Statutes would not stirre nor turmoyle possessions setled at the Common
their regresse in Case that it bee of another Feoffment then that whereupon the Statute hath wrought but upon the same Feoffment as if the Feoffee before the Statute had beene diseised and the disseis'd had made a Feoffment in Fee to I. D. his use and then the Statute came this executeth the Use of the second Feoffment but the first Feoffees may make a regresse and they yet claime to an Use but not by that Feoffment upon which the Statute hath wrought NOw followeth the third Case of the Statute touching execution of Rents wherein the materiall words are foure First whereas divers persons are seised which hath bred a doubt that it should onely goe to Rents in Use at the time of the Statute but it is Explained in the Clause following S as if a grant had beene made to them by such as are or shall be seised The second word is Profit for in the putting of the Case the Statute speaketh of a Rent but after in the Purview is added these words or profit The third word is ac si S that they shall have the S as if a sufficient grant or lawfull conveyance had bin made and made unto them The fourth words are the words of Liberty and Remedies attending upon such Rent S that hee shall distraine c. and have such Suits Entries and Remedies relying againe with an ac si as if the grant had beene made with such collaterall penalties and advantages Now for the Provisoes the Makers of this Law did so abound with policy and discerning as they did not onely fore-see such mischiefes as were incident to this new Law immediately but likewise such as were consequent in a remote degree and therefore besides the expresse Provisoes they did adde three new Provisoes which are in themselves substractive Lawes for foreseeing that by the Execution of Uses Wills formerly made should be over-throwne They made an ordinance for Wills fore-seeing likewise that by execution of Uses women should be doubly advanced They made an ordinance for Dowers and Jointures foreseeing againe that the execution of Uses would make franktenement passe by Contracts paroll They made an ordinance for inrollments of Bargaines and Sales the two former they inserted into this Law and the third they distinguished into a Law apart but without any preamble as may appeare being but a Proviso to this Statute besides all these provisionall Lawes and besides five Provisors whereof three attend upon the Law of Jointure and two borne in Wales which are not materiall to the purpose in hand There are sixe provisoes which are naturall and true members and limbs of the Statute whereof foure concerne the part of Cesty que use and two concerne the part of the Feoffees The soure which concerne the part of Cesty que use tend all to save him from prejudice by the execution of the estate The first saveth him from the extinguishment of any Statute or Recognizance as if a man had an Extent of a hundred Acres and an Use of the inheritance of one Now the Statute executing the possession to that one would have extinguisht his Extent being intire in all the rest or as if the Commissioner of a Statute having ten Acres lyable to the Statute had made a Feoffment in Fce to a Stranger of two and after had made a Feoffment in Fce to the use of the Conuzec and his Heires And upon this Proviso there arise three Questions First whether this Proviso were not superfluous in regard that Cesty que use was comprehended in the generall saving though the Feoffees be excluded Secondly whether this Proviso doth save Statutes or Executions with an apportionment and Entire Thirdly because it is penned indefinitively in point of time whether it shall goe to Uses limitted after the Statute as well as to those that were in being all the time of the Statute which doubt is rather inforced by this Reason because there was for Uses at the time of the Statute for that the Execution of the Statute might be wayved but both possession and Use since the Statute may be wayved The second proviso saveth Cesty que vse from the charge of primer Seisin liveries Ouster le maines and such other duties to the King with an expresse limitation of Time that he shal be discharged for the time past and charged for the time to come in a King S May 1536. to be communis terminus The third proviso doth the like for Fines Reliefes and Herriots discharging them for the time past and speaking nothing of the Time to come The fourth proviso giveth to Cesty que use all collaterall benefits of Vouchers Aides priers Actions of wast Trespasse conditions broken and which the Feoffees might have had and this is expresly limitted for Estates executed before 1. May 1536. and this proviso giveth occasion to intend that none of these benefits would have beene carried to Cesty que vse by the generall words in the body of the Law S that the Feoffees estate right Title and possession c. For the two provisoes on the part of the Tertenant they both concerne the saving of strangers from prejudice c. The first saves Actions depending against the Feoffees that they shall not abate The second saves Wardships Liveries and Ouster Le maines whereof Title was vested in regard of the Heire of the Feoffee and this in case of the King only What Persons may be seised to an Vse and what not What persons may be Cesty que use and what not What Persons may declare an use and what not THough I have opened the Statute in order of words yet I will make my Division in order of matter viz. 1. The raysing of Uses 2. The interruption of Vses 3. The Executing of Vses Againe The raising of Uses doth easily divide it selfe into three parts The persons that are Actors to the Conveyance to Use The Use it selfe The forme of the Conveyance Then it is first to be seene what persons may be seised to an Use and what not and what persons may be Cesty que use and what not The King cannot be seised to an Use no not where he taketh in his naturall body and to some purpose as a common person and therefore if Land be given to the King and I. D. per terme de lour vies this Use is void for a moity Like Law is if the King be seised of Land in the right of his Dutchy of Lancaster and covenanteth by his letters Pattents under the Dutchy Seale to stand seised to the use of his Sonne nothing passeth Like Law if King R. 3. who was Feoster to divers uses before he took upon him the Crowne had after hee was King by his Letters pattents granted the Land over the uses had not bin renewed The Queene speaking not of an Imperiall Queene by marriage cannot be seised to an use though she be a body inabled to grant and purchase without the King Yet in regard of the government
and interest the King hath in her possession she cannot be seised to an use A Corporation cannot be seised to an use because their capacity is to a use certaine againe because they cannot Execute an Estate without doing wrong to their Corporation or Founder but chiefly because of the letter of this Statute which in any clause when it speaketh of the Feoffee resteth only upon the word person but when it speaketh of Cefty que use it addeth person or body politicke If a Bishop bargaine or sell Lands whereof hee is seised in the right of his Sea this is good during his life otherwise it is where a Bishop is infeoffed to him and his Successors to the use of I. D. and his heires that is not good no not for the Bishops life but the use is meerely voyd Contrary Law of Tenant in Taile for if I give Land in Taile by Deed since the Statute to A. to the use of B. and his heires B. hath a fee-simple determinable upon the death of A without issue And like Law though doubtfull before the Statute was for the chiefe reason which bred the doubt before the Statute was because Tenant in Tayle could not Execute an Estate without wrong but that since the Statute is quite taken away because the Statute saveth no right of intayle as the Statute of 1. R. 3. did and that reason likewise might have bin answered before the Statute in regard of the common recovery A feme Covert and an Infant though under yeares of discretion may be seised to an use for aswell as Land might descend unto them from a Feoffee to use so may they originally be infeoffed to an use yet if it be before the Statute and they had upon a Subpoena brought executed their Estate during the coverture or infancy they might have defeated the same and when they should have beene seized againe to the Use and not to their owne use but since the Statute no right is saved unto them If a feme Covert or an Infant be enfeoffed to an Use precedent since the Statute the Infant or Baron come too late to discharge or roote up the Feoffment but if an Infant be infeoffed to the Use of himselfe and his Heires and I. D. pay such a summe of money to the Use of I. G. and his Heires the Infant may disagree and overthrow the contingent Use Contrary Law if an Infant be infeoffed to the Use of himselfe for life the remainder to the Use of I. S. and his Heires he may disagree to the feoffment as to his owne Estate but not to devest the remainder but it shall remaine to the benefit of him in remainder And yet if an Attainded person be infeoffed to an Use the Kings Title after Office found shall prevent the Use and Relate above it but untill office the Cesty que vse is seised of the Land Like Law of an Alien for if Land be given to an Alien to an Use the Use is not voyd ab initio Yet neither Alien or Attainded person can maintaine an Action to defend the Land The Kings Villeine if he be infeoffed to an Use the Kings Title shall relate above the Use otherwise in Case of a common person But if the Lord be infeoffed to the Use of his Villeine the Use neither riseth but the Lord is in by the CoÌ„mon Law not by the Statute discharged of the use But if the husband be infeoffed to the use of his wife for yeares if he die the wife shall have the Terme and it shall not inure by way of discharge although the Husband may dispose of the wives Terme So if the Lord of whom the Land is held be infeoffed to the Use of a person Attainded the Lord shall not hold by way of discharge of the Use because of the Kings Title An. diem vastum A person uncertaine is not within the Statute nor any Estate in nutibus or suspence executed as if I give Land to I. S. the remainder to the right Heires of I. D. to the use of I. N. and his Heire I. N. is not seised of the Fee-simple of an Estate per vit. of I. S. till I. D. be dead and then in Fee-simple Liker Law if before the Statute I give Land to I. S. per auter vie to an Use and I. S. dyeth leaving Cesty que vse whereby the free-hold is in Suspence the Statute commeth and no occupant entreth the Use is not executed out of the free-hold in suspence For the occupant the Disseissor the Lord by Escheate The Feoffee upon consideration not having notice and all other persons which shal be seised to Use not in regard of their persons but of their Title I referre them to my division touching disturbance and interruption ofUses It followeth now to see what person may be a Cesty que vse the King may be Cesty que vse but it behoveth both the declaration of the Use and the conveyance it selfe to be matter of Record because the Kings Title is compounded of both I say not appearing of Record but by conveyance of Record And therefore if I covenant with I. S. to leavy a Fine to him to the Kings use which I do accordingly And this deed of Covenant be not inrol'd and the Deed be found by office the use vesteth not Econverso inrol'd If I covenant with I. S. to infeoffe him to the Kings use and the Deed be inrol'd â—nd the feoffment also be found by office the use vesteth But if I leavy a fine or suffer a Recovery to the Kings use and declare the use by Deede of Covenant Enrol'd though the King be not party yet it is good enough A Corporation may take an Use yet it is not material whether the feoffment or the Declaration be by deed but I may infeoffee I. S. to the use of a Corporation and this use may be averred A Use to a person incertaine is not voyd in the first limitation but executeth not till the person be in esse so that this is positive than an Use shall never be in Obeyance as a Remainder may be but ever in a person certaine upon the words of the Statute and the Estate of the Feeoffees shall be in him or them which have the Use The reason is because no confidence can be reposed in a person unknowne and uncertaine and therefore if I make a feoffment to the use of I. S. for life and then to the use of the right Heires of I. D. the remainder is not in Obeyance but the Reversion is in the Feoffer quousque So that upon the matter all persons uncertaine in Use are like conditions or limitations precedent Like Law if I Enfeoffee one to the use of I. S. for yeares the remainder to the right Herres of I. D. This is not executed obeyance and therefore not void Like Law if I make a Feoffment to the use of my wife that shall be or to such persons as I shall
maintaine though I limit no particular Estate at all yet the use is good and shall in the interim returne to the Feoffor Contrary Law if I once limit the whole Fee-simple of the Use out of Land and part thereof to a person incertaine it shall never returne to the Feoffer by way of fraction of the Use but looke how it should have gone unto the Feoffer if I begin with a contingent Use so it shall go to the remainder if I intaile a contingent Use both Estates are alike subject to the contingent Vse when it falleth as when I make a Feoffment in Fee to the use of my wife for life the remainder to my first begotten son I having no Sonne at that time the remainder to my brother and his heires if my wife dye before I have any son the Vse shall not be in me but in my brother And yet if I marry againe and have a Sonne it shall devest from my brother and be in my Sonne which is the skipping they talke so much of So if I limit an Use joyntly to two persons not in Esse and the one commeth to bee in esse hee shall take the intire Use and yet if the other afterward come in esse hee shall take joyntly with the former as if I make a Feoffment to the use of my Wife that shall bee and my first begotten Sonne for their Lives and I marry my Wise taketh the whole Use and if I afterwards have a Sonne hee taketh joyntly with my Wife But yet where words of obeyance worke to an Estate executed in course of Possession it shall doe the like in Use as if I infeoffee A. to the use of B. for life the remainder to C. for life the remainder to the right Heires of B. this is a good remainder executed So if I enfeoffee A. to the use of his right Heires A. is in the Fee-simple not by the Statute but by the Common Law Now are wee to examine a speciall point of the disability of persons as to take by the Statute and that upon the words of the Statute where divers persons are seised to the use of other persons so that by the letter of the Statute no use is conteyned but where the Feoffor is one and Cesty que use is another Therefore it is to bee seene in what Cases the same persons shall be both seised to the use and Cesty a que use and yet in by the Statute and in what Cases they shall be diverse persons and yet in by the Common Law wherein I observe unto you three things First that the letter is full in the point Secondly that it is strongly urged by the Clause of joynt Estates following Thirdly that the whole scope of the Statute was to remit the Common Law and never to intermeddle where the Common Law executed an Estate therefore the Statute ought to bee expounded that where the party seised to the use and the Cesty que use is one person hee never taketh by the Statute except there bee a direct impossibiltie or impertinency for the use to take effect by the Common Law And if I give Land to I. S. to the use of himselfe and his Heires and if I. D. pay a summe of mony then to the use of I. D. and his Heires I. S. is in of an Estate for life or for yeares by way of abridgment of Estate in course of Possession and I. D. in of the Fee-simple by the Statute So if I bargaine and sell my Land after seven yeares the Inheritance of the Use onely passeth and there remaines an Estate for yeares by a kind of substraction of the Inheritance or occupyer of my Estate but meerely at the Common Law But if I enfeoffee I. S. to the use of himselfe intayle and then to the use of I. D. in Fee or Covenant to stand seisd to the use of my selfe in tayle and to the use of my Wife in Fee in both these Cases the Estate tayle is executed by this Statute because an Estate tayle cannot be reoccupied out of a Fee-simple being a new Estate and not like a particular Estate for life or yeares which are but portions of the absolute Fee and therefore if I bargaine and sell my Land to I. S. after my death without Issue it doth not leave an Estate tayle in mee nor vesteth any present Fee in the bargaines but is an use expectant So if I enfeoffee I. S. to the use of I. D. for life and then to the use of himselfe and his Heires he is in of the Fee-simple meerely in course of Possession and as of a Reversion and not of a remainder Contrary Law if I enfeoffee I. S. to the use of I. D. for life then to the use of himselfe for life the remainder to the use of I. N. in Fee now the Law will not admit fraction of Estates but I. S. is in with the â—est by the Statute So if I infeoffee I. S to the use of himselfe and a Stranger they shall be both in by the Statute because they could not take joyntly taking by severall Titles Like Law if I infeoffee a Bishop and his Heires to the use of himselfe and his successors he is in by the Statute in the right of his Sea And as I cannot raise a present use to one out of his owne seisin so if I limit a contingent or future use to one being at the time of limitation not seis'd but after become seised at the time of the execution of contingent use there is the same reason and the same Law and upon the same difference which I have put before As if I covenant with my Sonne that after his Marriage I will stand seised of Land to the use of himselfe and his Heires and before Marriage I enfeoffee him to the use of himselfe and his Heires and then hee marryeth hee is in by the Common Law and not by the Statute like Law of a bargaine and sale But if I had let to him for life onely then hee should have beene in for life onely by the Common Law and of the Fee-simple by Statute Now let mee advise you of this that it is not a matter of subtilty or conceipt to take the Law right when a man commeth in by the Law in course of Possession and where hee commeth in by the Statute in course of Possession but it is materiall for the deciding of many Causes and Questions as for Warranties Actions Conditions Wayners Suspitions and divers other Provisoes For example a mans Farmer committed wast after he in the Reversion covenanteth to stand seis'd to the use of his Wife for life and after to the use of himselfe and his Heires his Wife dyes if hee bee in his Fee untouch'd he shall punish the wast if he be in by the Statute he shall not punish it So if I bee infeoffed with Warranty and I covenant with my Sonne to stand seised to the use of my selfe for
life and after to him and his Heires if I bee in by the Statute it is cleare my Warranty is gone but if I be in by the Common Law it is doubtfull So if I have an eigne Right and be infeoffed to the use of I. S. for life then to the use of my selfe for life then to the use of I. D. in Fee I. S. dyeth if I be in by the Common Law I cannot wayve my Estate having agreed to the Feoffment but if I am in by the Statute yet I am not remitted because I come in by my owne Act but I may wayve my Use and bring an Action presently for my Right is saved unto me by one of the savings in the Statute Now on the other side it is to bee seene where there is a seisin to the use of another person and yet it is out of the Statute which is in speciall Cases upon the ground wheresoever Cesty que use had remedy for the Possession by course of Common Law there the Statute never worketh and therefore if a disseisin were committed to an Use it is in him by the Common Law upon agreement so if one enter as occupant to the Use of another it is in him till disagreement So if a feme infeoffe a man Causa matrimonij pralocuti she hath remedy for the Land againe by course of the Law and therefore in those speciall Cases the Statute worketh not and yet the words of the Statute are generall where any person stands seised by force of any Fine Recovery Peostment bargaine and sale agreement or otherwise but yet the feme is to bee restrained for the reason aforesaid It remaineth to shew what persons may limit and declare an Use wherein we must distinguish for there are two kinds of Declarations of Uses the one of a present Use upon the first conveyance the other upon a power of revocation or new declaration the latter of which I referre to the division of revocation now for the former The King upon his Letters Pattents may declare an Use though the Pattent it selfe implyeth an Use if none be declared If the King gives Lands by his Letters to I. S. and his Heires to the use of I. S. for life the King hath the Inheritance of the use by impliation of the Pattent and no Office needeth for impliation out of matter of Record amounteth ever to matter of Record If the Queene give Land to I. S. and his Heires to the use of all the Church-wardens of the Church of Dale the Pattentee is seised to his owne use upon that confidence or intent but if a common person had given Land in that manner the use had bin voyd by the Stat. of 23. H. 8. and the use had returned to the feoffor his heires A Corporation may take an Use without deed as hath bin said before but can limit no Use without Deed An Infant may limit an Use upon a Feoffment Fine or Recovery and he cannot Countermand or avoyd the Use except hee avoyd the conveyance contrary if an Infant covenant in consideration of bloud or Marriage to stand seised to an Use the Use is meerely voyd If an infant bargaine and sell his Land for mony for Commons or Teaching it is good with averment if for mony otherwise if it be proved it is avoydable if for mony recited and not paid it is voyd and yet in the case of a man of full age the recitall sufficeth If Barron and feme be seised in the right of the feme or by joynt Purchase during the Coverture and they joyne in a Fine the Barron cannot declare the Use for longer time then the Coverture and the feme cannot declare alone but the Use goeth according to the limitation of Law unto the feme and her Heires but they may both joyne in Declaration of the Use in Fee and if they sever then it is good for so much of the Inheritance as they concurr'd in for the Law avoucheth all one as if they joyn'd as if the Baron declare an Vse to I. S. and his Heires and the Feme another to I. D. for life and then to J. S. and his Heires the Vse is good to I. S. in Fee And if upon examination the Feme will declare the Vse to the Judge and her Husband agree not to it it is voyd and the Barons Vse is onely good the rest of the Vse goeth according to the limitation of Law FINIS 1. 2. 3. 1. 2. 3. 4. 5. 6. 1. 2. 3. 1. 2. 1. 2. 3. 4. 1 2 3 1. 2. 3. 1. 2. 3. 1. 2. 3. 4. 1. 2. 3. 1. 2. 3. 1. 2.
possession and not of the part of the use because a use is no right nor interest so againe you see that Littletons conceipt that an use should amount to a Tenancy at will whereupon a release might well inure because of pravity is controled by 4. Et 5. H. 7. and diverse other bookes which said that Cesty que use is punishable in an Action of Trespasse towards the Feoffees onely 5. H. 5. seemeth to be at some discord with other Bookes where it is admitted for Law that if there be Cesty que use of an Advowson and hee bee out-lawed in a personall Action the King should have the presentment which Case Master Evans in the argument of Chudleyes Case did seeme to reconcile this where Cesty que use being utlaird had presented in his owne name there the King should remove his incumbent and no such thing can be collected upon that Booke and therefore I conceive the errour grew upon this that because it was generally thought that a use was but a penancy of profits and then againe because the Law is that upon Utlayers upon personall Actions the King shall have the penancy of profits they tooke that to bee one and the selfe same thing which Cesty que use had and which the King was intituled unto which was not so for the King had remedy in Law for his penancy of profits but Cesty que use had none the Bookes goe further and say that a use is nothing as in 2. H. 7. Dett fuit Port and counted Sur leas for yeares rent c. the Defendant pleaded in Barre that the Plaintiffe Nihil habuit tempore divisionis the Plaintiffe made a speciall replication and shewed that he had no use and issue joyned upon that wherefore it appeareth that if hee had taken issue upon the defendants Plea it should have bin found against him So againe in 4. Reginae in the Case of the Lord Sands the truth of the case was a Fine leavied by Cesty que use before the Statute and this comming in question since the Statute upon an averment by the Plaintiffes Quod partes finis nihil habuerint it is said that the Defendant may shew the speciall matter of ◠use and it shall be no departure from the first pleading of the same and it is said further that the averment given in 4. H. 7. Quod partes finis nihil habuerint nec in possessione nec in usu went out upon this Statute of 27. Hen. 8. and was no more now to be accepted but yet it appeares that if issue had bin taken upon the generall averment without the speciall matter shewed it should have bin found for him that tooke the averment because a use is nothing but these bookes are not to be taken generally or grosly for wee see in the same bookes when an use is specially alleadged the Law taketh knowledge of it but the sence of it is that use is nothing for which remedy is given by the course of the Common Law so as the Law knoweth it but protects it not and therefore when the question commeth whether it hath any being in Nature and Conscience the Law accepteth of it and therefore Littletons Case is good Law that hee which hath but forty shillings Free-hold in use shall be sworne in an inquest for it is ruled Secundum dominium laterale and not Secundum deminium legitimum nam natura dominus est quia fructum ex re percipit And some doubt upon Subsidies and Taxes Cesty que use should be valued as an owner So likewise if Cesty que use had resolved his use unto the Feoffee for sixe pound or contracted with a stranger for the like some there is no doubt but it is a good construction whereon to ground an Action upon the Case for mony for release of a Suite in the Chancery is a good quid pro quo therefore to conclude though a use be nothing in Law to yeeld remedy by course of Law yet it is somewhat in reputation of Law and Conscience for that may be somewhat in conscience which is nothing in Law like as that may be something in Law which is nothing in Conscience as if the Feoffees had made a feoffment over in Fee Bona fide upon good consideration and upon a Subpoena brought against them hee pleaded this matter in Chancery this had beene nothing in Conscience not as to discharge them of damages A second negative fit to be understood is that a use is no Covin nor it is no collusion as the word is now used for it is to be noted that where a man doth remove the state and possession of Land or goods out of himselfe unto another upon trust it is either a speciall trust or a generall trust The speciall trust is either Lawfull Or Vnlawfull The speciall trust Unlawfull is according to the Case provided for by ancient Statutes of the profits as where it is to defraud Creditors or to get men to maintaine suites or to defeate the tenancy to the precipe or the Statute of Mortmaine or the Lords of their wardships or the like and those are termed Frauds Covins or Collusions The speciall trust Lawfull is as when I infeoffee some of my friends because I am to goe beyond the Seas or because I would free the Land from some severall Statute or Bond which I am to enter into or upon intent to be infeoff'd or intent to vouched and so to suffer a common Recovery or upon intent that the Feoffees shall infeoffee over a Stranger and infinite the like intents and purposes which fall out in mens dealings and occasions and this wee call Confidence and the Bookes doe call them intents but where the trust is not speciall nor transitory but generall and permanent there it is a use and therefore these three are to be distinguished and not confounded by Covin Confidence use So as now we are come by Negatives to the Affirmative what a use is agreeable to the definition in Plowden 352. De Lamers Case where it is said Vse is a trust reposed by any person in the Terre-tenant that he may suffer him to take the profits and hee that will performe his intent But it is a shorter Speech to say that Vsus est dommium fiduciarium Vse is an owners life in trust So that Vsus est status sive possessio totius differ secundum rationem fori quà m secundum naturam rei for that one of them is in Court of Law the other in court of Conscience and for a trust which is the way to an use it is exceeding well defined by a Civilian of great understanding Fides est obligatio Conscientiae unjus ad intentionem alterius And they have a good division likewise of Rights Ius precarium Ius fiduciarium Ius legitimum A right in courtesie for the which there is no remedy at all A right in trust for which there is a remedy onely but in
Law it putteth in precisely this word Other meaning the divided Use and not the communed Use and this causeth the Clause of joynt Feoffees to follow in a branch by it selfe for else that Case had beene doubtfull upon this word Other The words that are common to both are words expressing the conveyance whereby the Use ariseth of which words those that bred any question are Agreement Will otherwise whereby some have inferred that Uses might be raised by agreement paroll so there were a consideration of mony or other matter valuable for it is expressed in the words before Bargaines Sale and Contract but of bloud or linned the errour of which Collection appeareth in the word immediately following s. Will whereby they might aswell include that a man seised of Land might raise an Use by Will especially to any of his Sonnes or Kindred where there is a reall consideration and by that reason meane betwixt this Statute and the Statute of 32. of Wills Lands were deviseable especially to any mans Kindred which was clearely otherwise and therefore those words were put in nor in regard of Uses raised by those conveniences or without or likewise by Will might be transferred and there was a person seised to a Use by force of that agreement or Will s. to the Use of the Assigne and for the word Otherwise it should by the generality of the word include a Disseisin to a Use but the whole scope of the Statute crosseth that which was to execute such Uses as were confidences and trust which could not be in Case of Disseisin for if there were a commandment precedent then the Land was vested in Cesty que use upon the entry and if the Disseisin were of the Disseisors owne head then no trust and thus much for the case of Supposition of this Statute here follow 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 worke that effect The effect is that Cesty 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 Cesty que use as a new body compounded of matter and forme and that the Feoffees shall give matter and substance and the Use shall give forme and quality the materiall words in the first part of the purview are foure The first words are Remainder and Reverture the Statute having spoken before of Uses in Fee-simple in Tayle for life or yeares addeth or otherwise in Remainder reverture whereby it is manifest that the first words are to be understood of Uses in Possession for there are two substantiall and essentiall differences of Estates the one limiting the times for all Estates are but times of their continuantes the former maketh little difference of Fee-simple Fee Tayle for life or yeares and the other maketh difference of Possession as remainder all other differences of Estate are but accidents as shall be said hereafter these two the Statute meant to take hold of and at the words Remainder and Reverture it stopps it addes not wordes Right Title or possibility nor it hath not generall words or otherwise it is most plaine that the Statute meant to execute no inferiour Uses to Remainder or Reverture that is to say no possibility or contingences but Estates onely such as the Feoffees might have executed by Conscience made note also the very Letter of the Statute doth take notice of a difference betweene an Use in Remainder and an Use in Reverture which though it cannot properly because it doth not depend upon particular Estates as Remainders doe neither did then before the Statute draw any Tenures as Reversions doe 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 a 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 a use in Reverter The next materiall word is from henceforth which doth exclude all conceipt of relation that Cesty que use shall not come in as from the time of the first Feoffments to use as Bradnells conceipt was in 14. Henry 8. that is the Feoffee had granted a Rent charge and Cesty que use had made a Feoffment in Fee by the Statute of 1. Richard 3. the Feoffee should have held it discharged because the Act of Cesty que use shall put the Feoffee in as if Cesty que use had beene seised in from the time of the first Use limited and therefore the Statute doth take away all such ambiguities and expresseth that Cesty que use shall bee 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 materiall words are Lawfull seisin state and Possession not a Possession in Law onely but a seisin in Tayle not a Title to enter into the Land but an actuall estate The fourth words are of and in such Estates as they had in the Use that is to say little Estates Fee-simple Fee Tayle life for yeares at Will and Possession and Reversion which are the substantiall differences of Estates as was said before but both their latter Clauses are more fully perfected and expounded by the branch of the fiction of the Statute which followes This branch of Fiction hath three materiall words or Clauses the first materiall Clause is that the Estate Right Title and Possession that was in such person c. shall bee in Cesty que use for that the matter and substance of the Estate of Cesty que use is the Estate of the Feoffee and more hee cannot have so as if the Use were limited to Cesty que use and his Heires and the Estate out of which it was limited was but an Estate for life Cesty que use can have no Inheritance so if when the Statute came the Heire of the Feoffee had not entred after the death of his Ancestor but had onely a Possession in Law Cesty que use in that Case should not bring an Assize before entry because the Heire of the Feoffee could not so that the matter whereupon the Use must work is the Feoffees Estate but note here whereas before when the Statute speakes of the Uses it spake onely of Uses in Possession Remainder and Treverter but not in Title or Right now when the Statute speakes what shall bee taken from the Feoffee it speakes of Title and Right so that the Statute takes more from the Feoffee then it executes presently in Case where there are uses in contingence which are but Titles The second word is Cleerely which seemes properly and directly to meet with the conceipt of Scintilla Iuris as
well as the words in the Preamble of extirping and extinguishing such Feoffments so is their Estates is clearely extinct The third materiall Clause is after such quality manners forme and condition as they had in the Vse so as now as the Feoffees Estate gives matter so the Vse gives forme and as in the first Clause the Vse was indowed with the Possession in points of Estate so there it is indowed with the Possession in all accidents and Circumstances of Estate wherein first note that it is grosse and absurd to expound the forme of the Vse any whit to destroy the substance of the Estate as to make a doubt because the use gave no Dower or Tenancy by the courtesie that therefore the Possession when it is transferred would doe so likewise no but the Statute meant such quality manner forme and condition as it is not repugnant to the corporall prefence and possession of the Estate Next for the word Condition I doe not hold it to be put in for Uses upon condition though it be also comprized within the generall words but because I would have things stood upon learnedly and according to the true sence I hold it but for an explaining or word of the effect as it is in the Statute of 26. of Treasons where it is said that the Offender shall be attainded of the evert Fact by men of their condition in this place that is to say of their degree or sort and so the word Condition in this place is no more but in like quality manner forme and degree or sort so as all these words amount but to modo et forma Hence therefore all circumstances of Estate are comprehended as sole seisin or joyntly seisin by intierties or by moyties a circumstance of Estate to have age as comming in by Discent or not age as Purchasor or circumstance of Estate discendable to the Heire of the part of the Father or of the part of the Mother A circumstance of Estate conditionall or absolute remitted or not remitted with a condition of inter-marriage or without all these are accidents and circumstances of Estate in all which the Possession shall ensue the nature and quality of the Use and this much of the first Case which is the generall case The second Case of the joynt Feoffees needs no Exposition for it peruseth the penning of the generall case onely this I will note that although it had beene omitted yet the Law upon the first Case would have beene taken as the case provided so that it rather in explanation than an addition for turne that Case the other way that one were infeoffed to the Use of himselfe I hold the Law to bee that in the former Case they shall bee seised joyntly and so in the latter Case Cesty que use shall be seised solely for the word Other it shall bee qualified by the construction of Cases as shall appeare when I come to my Division but because this Case of Cofeoftees to the use of one of them was a generall Case in the Realme therefore they fore-saw it oppress'd it precisely and passed over the case E converso which was but especiall and care and they were loth to bring in this Case by incerting the word onely unto the first Case S to have penned it to the use onely of other persons for they had experience what doubt the word onely bred upon the Statute of 1. Richard 3. after this third Case and before the third Case of Rents comes in the second saving and the reason of it is worth the noting why the savings are interlaced before the third Case the reason of it is because the third case needeth no saving and the first two Cases did need savings and that is the reason of that againe It is a generhll ground that where an Act of Parliament is Donor if it be penned with an ac si it is not a saving for it is a speciall gift and not a generall gift which includes all Rights and therefore in 11 Henry 7. whereupon the alienation of Women the Statute intitles the Heire of him in remainder to enter you finde never a Stranger because the Statute gives entry not Simpliciter but within an ac si as if no Alienation had beene made or if the feme had beene naturally dead Strangers that had right might have entred and therefore no saving needs so in the Statute of 32. of Leases the Statute enacts that the Leases shall be good and effectuall in Law as if the lessor had beene seised of a good and perfect Estate in Fee-simple and therefore you finde no saving in the Statute and so likewise of divers other Statutes doe likewise where a Statute doth make a gift or Title good specially against certaine persons there needs no saving except it bee to exempt some of those persons as in the Statute of 1. R. 3. now to apply this to case of Rents which is penned with an ac si s. as if a sufficient grant or lawfull conveyance had beene made or executed by such as were seised why if such a grant of a Rent had beene made one that had an antient Right might have entred and have avoyded the charge and therefore no saving needeth but the second first Cases are not penned with an ac si but absolute that Cesty que use shall be adjudged in Estate and Possession which is a Judgement of Parliamènt stronger then any Fine to bind all Rights nay it hath further words s. in lawfull Estate and Possession which maketh it the stronger then any in the first Clause for if the words onely had stood upon the second Clause s. that the Estate of the Feoffee should bee in Cesty que use then perhaps the gift should have beene speciall and so the saving superfluous and this note is materiall in regard of the great question whether the Feoffees may make any regresse which Opinion I meane that no regresse is left unto them is principally to bee argued out of the saving as shall be now declared for the savings are two in number the first saveth all Strangers Rights with an exception of the Feoffees the second is a saving out of the exception of thefirst saving s. of the Feoffees in case where they claime totheir own proper use it had beene easie in the first saving out of the Statute other then such persons as are seised or hereafter should bee seised to any use to have added to these words executed by this Statute or in the second saving to have added unto the words clayming to their proper use these words or to the use of any other and executed by this Statute but the regresse of the Feoffee is shut out betweene the two savings for it is the right of a Person clayming to an Use and not unto his owne proper use but it is to bee added that the first saving is not to bee understood as the letter implyeth that Feoffees to use shall bee barr'd of