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Contrary law, if an infant be infeoffed to the use of himself for life, the remainder to the use of I. S. and his heirs, he may disagree to the feoffment as to his own estate, but not to divest the remainder, but it shall remain to the benefit of him in remainder. And yet if an attainted person be infeoffed to an use, the king's title, after office found, shall prevent the use, and relate above it; but until office the cestuy que use 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 void ab initio : yet neither alien or attainted person can maintain an action to defend the land.

The king's villain if he be infeoffed to an use, the king's title shall relate above the use; otherwise in case of a common person.

But if the lord be infeoffed to the use of his villain, the use neither riseth, but the lord is in by the common law, and not by the statute discharged of the use.

But if the husband be infeoffed to the use of his wife for years, if he die the wife shall have the term, and it shall not inure by way of discharge, although the husband may dispose of the wife's term.

So if the lord of whom the land is held be infeoffed to the use of a person attainted, the lord shall not hold by way of discharge of the use, because of the king's title, annum, diem et vastum.

A person uncertain is not within the statute, nor any estate in nubibus or suspense executed as if I give land to I. S. the remainder to the right heirs of I. D. to the use of I. N. and his heirs, I. N. is not seised of the fee-simple of an estate pour vie of I. S. till I. D. be dead, and then in fee-simple.

Like law, if before the statute I give land to I. S. pour autre vie to an use, and I. S. dieth, living cestuy que use, whereby the freehold is in suspense, the statute cometh, and no occupant entereth: the use is not executed out of the freehold in suspense for the occupant, the disseisor, the lord by escheat. The feoffee upon consideration, not having notice, and all other persons which shall be seised to use, not in regard of their persons but of their title; I refer them to my division touching disturbance and interruption of uses.

It followeth now to see what person may be a cestuy que use. The king may be cestuy que use; but it behoveth both the declaration of the use, and the conveyance itself, to be matter of record, because the king's 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 levy a fine to him to the king's use, which I do accordingly; and this deed of covenant be not enrolled, and the deed be found by office, the use vesteth not. E converso, if enrolled. If I covenant with I. S. to infeoff him to the king's use, and the deed be enrolled, and the feoffment also be found by office, the use vesteth.

But if I levy a fine, or suffer a recovery to the king's use, and declare the use by deed of covenant enrolled, though the king be not party, yet it is good enough.

A corporation may take an use, and yet it is not

material whether the feoffment or the declaration be by deed; but I may infeoff I. S. to the use of a corporation, and this use may be averred.

An use to a person uncertain is not void in the first limitation, but executeth not till the person be in esse; so that this is positive, that an use shall never be in abeyance as a remainder may be, but ever in a person certain upon the words of the statute, and the estate of the feoffees shall be in him or them which have the use. The reason is, because no confidence can be reposed in a person unknown and uncertain; and therefore if I make a feoffment to the use of I. S. for life, and then to the use of the right heirs of I. D. the remainder is not in abeyance, but the reversion is in the feoffor, quousque. So that upon the matter all persons uncertain in use, are like conditions or limitations precedent.

Like law, if I infeoff one to the use of I. S. for years, the remainder to the right heirs of I. D. this is not executed in abeyance, 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 maintain, though I limit no particular estate at all; yet the use is good, and shall in the interim return 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 uncertain, it shall never return to the feoffor by way of fraction of the use: but look how it should have gone unto the feoffor; if I begin with a contingent use, so it shall go to the remainder; if I entail a contingent use, both estates are alike subject to the contingent use 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 son at that time, the remainder to my brother and his heirs if my wife die before I have any son, the use shall not be in me, but in my brother. And yet if I marry again, and have a son, it shall divest from my brother, and be in my son, which is the skipping they talk so much of.


So if I limit an use jointly to two persons, not in esse, and the one cometh to be in esse, he shall take the entire use; and yet if the other afterward come in esse, he shall take jointly with the former; as if I make a feoffment to the use of my wife that shall be, and my first-begotten son for their lives, and I marry; my wife taketh the whole use, and if I afterwards have a son, he taketh jointly with my wife.

But yet where words of abeyance work to an estate executed in course of possession, it shall do the like in uses; as if I infeoff A to the use of B for life, the remainder to C for life, the remainder to the right heirs of B, this is a good remainder executed.

So if I infeoff A to the use of his right heirs, A is in the fee-simple, not by the statute, but by the common law.

Now are we to examine a special point of the disability of such persons as do 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 contained:

but where the feoffor is one, and cestuy que use is | riage I will stand seised of land to the use of himanother.

Therefore it is to be seen in what cases the same persons shall be both seised to the use and cestuy 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 joint 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 be expounded, that where the party seised to the use, and the cestuy que use is one person, he never taketh by the statute, except there be a direct impossibility or impertinency for the use, to take effect by the common law.

And if I give land to I. S. to the use of himself and his heirs, and if I. D. pay a sum of money, | then to the use of I. D. and his heirs, I. S. is in of an estate for life, or for years, by way of abridgement of estate in course of possession, and I. D. in of the fee-simple by the statute.

So if I bargain and sell my land after seven years, the inheritance of the use only passeth; and there remains an estate for years by a kind of subtraction of the inheritance or occupier of my estate, but merely at the common law.

But if I infeoff I. S. to the use of himself in tail, and then to the use of I. D. in fee, or covenant to stand seised to the use of myself in tail, and to the use of my wife in fee; in both these cases the estate tail is executed by this statute; because an estate tail cannot be re-occupied out of a fee-simple, being a new estate, and not like a particular estate for life or years, which are but portions of the absolute fee; and therefore if I bargain and sell my land to I. S. after my death without issue, it doth not leave an estate tail in me, nor vesteth any present fee in the bargain, but is an use expectant.

So if I infeoff I. S. to the use of I. D. for life, and then to the use of himself and his heirs, he is in the fee-simple merely in course of possession, and as of a reversion, and not of a remainder.

Contrary law, if I infeoff I. S. to the use of I. D. for life, then to the use of himself 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 rest by the statute.

So if I infeoff I. S. to the use of himself and a stranger, they shall be both in by the statute, because they could not take jointly, taking by several titles.

Like law, if I infeoff a bishop and his heirs to the use of himself, and his successors, he is in by the statute in the right of his see.

And as I cannot raise a present use to one out of his own seisin; so if I limit a contingent or future use to one being at the time of limitation not seised, but after become seised at the time of the execution of the 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 son, that after his mar

self and his heirs; and before marriage I infeoff him to the use of himself and his heirs, and then he marrieth; he is in by the common law, and not by the statute; like law of a bargain and sale.

But if I had lett to him for life only, then he should have been in for life only by the common law, and of the fee-simple by statute. Now let me advise you of this, that it is not a matter of subtilty or conceit to take the law right, when a man cometh in by the law in course of possession, and where he cometh in by the statute in course of possession: but it is material for the deciding of many causes and questions, as for warranties, actions, conditions, waivers, suspicions, and divers other provisoes.

For example; a man's farmer committed waste: after he in reversion covenanteth to stand seised to the use of his wife for life, and after to the use of himself and his heirs; his wife dies; if he be in his fee untouched, he shall punish the waste; if he be in by the statute, he shall not punish it.

So if I be infeoffed with warranty, and I covenant with my son to stand seised to the use of myself for life, and after to him and his heirs; if I be in by the statute, it is clear my warranty is gone; but if I be in by the common law, it is doubtful.

So if I have an eigne right, and be infeoffed to the use of I. S. for life, then to the use of myself for life, then to the use of I. D. in fee, I. S. dieth. If I be in by the common law, I cannot waive 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 own act: but I may waive 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 be seen, where there is a seisin to the use of another person; and yet it is out of the statute which is in special cases upon the ground, wheresoever cestuy 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 infeoff a man, causa matrimonii prælocuti, she hath a remedy for the land again by course of the law; and therefore in those special cases the statute worketh not; and yet the words of the statute are general, where any person stands seised by force of any fine, recovery, feoffment, bargain and sale, agreement or otherwise; but yet the feme is to be restrained for the reason aforesaid.

It remaineth to show 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 refer to the division of revocation: now for the former.

The king upon his letters patent may declare an use, though the patent itself implieth an use, if none be declared.

If the king gives lands by his letters to I. S. and

his heirs, to the use of I. S. for life, the king hath | able; if for money recited and not paid, it is void: the inheritance of the use by implication of the and yet in the case of a man of full age the recital patent, and no office needeth; for implication out of sufficeth. matter of record, amounteth ever to matter of record.

If the queen give land to I. S. and his heirs to the use of all the church-wardens of the church of Dale, the patentee is seised to his own use, upon that confidence or intent; but if a common person had given land in that manner, the use had been void by the statute of 23 H. VIII. and the use had returned to the feoffor and his heirs. A corporation | may take an use without deed, as hath been said before; but can limit no use without deed.

If baron and feme be seised in the right of the feme, or by joint purchase during the coverture, and they join in a fine, the baron cannot declare the use for longer time than the coverture, and the feme cannot declare alone; but the use goeth, according to the limitation of law, unto the feme and her heirs; but they may both join in declaration of the use in fee; and if they sever, then it is good for so much of the inheritance, as they concurred in; for the law avoucheth all one as if they joined: as if the baron declare an use to I. S. and his heirs, and the feme another to I. D. for life, and then to I. S. and his heirs, the use is good to I. S. in fee.

An infant may limit an use upon a feoffment, fine, or recovery, and he cannot countermand or avoid the use, except he avoid the conveyance; contrary, if an infant covenant in consideration of blood or marriage to stand seised to an use, the use is merely void. If an infant bargain and sell his land for money, for commons or teaching, it is good with averment; if for money, otherwise if it be proved, it is avoid- | law.

And if upon examination the feme will declare the use to the judge, and her husband agree not to it, it is void, and the baron's use is only good; the rest of the use goeth according to the limitation of









I Do not hold the law of England in so mean an account, but that which other laws are held worthy of, should be due likewise to our laws, as no less worthy for our state. Therefore when I found that not only in the ancient times, but now at this day, in France, Italy, and other nations, the speeches, and, as they term them, pleadings, which have been made in judicial cases, where the cases were mighty and famous, have been set down by those that made them, and published; so that not only a Cicero, a Demosthenes, or an Æschines, hath set forth his Orations, as well in the judicial as deliberative; but a Marrian and a Pavier have done the like by their pleadings; I know no reason why the same should not be brought in use by the professors of our law for their arguments in principal cases. And this I think the more necessary, because the compendious form of reporting resolutions, with the substance of the reasons, lately used by Sir Edward Coke, lord chief justice of the king's bench, doth not delineate or trace out to the young practisers of law a method and form of argument for them to imitate. It is true I could have wished some abler person had begun; but it is a kind of order sometimes to begin with the meanest. Nevertheless, thus much I may say with modesty, that these arguments which I have set forth, most of them, are upon subjects not vulgar; and therewithal, in regard of the commixture, which the course of my life hath made of law with other studies, they may have the more variety, and perhaps the more depth of reason: for the reasons of municipal laws, severed from the grounds of nature, manners, and policy, are like wallflowers, which though they grow high upon the crests of states, yet they have no deep root: besides, in all public services I ever valued my reputation more than my pains; and therefore in weighty causes I always used extraordinary diligence; in all which respects I persuade myself the reading of them will not be unprofitable. This work I knew not to whom to dedicate, rather than to the Society of GRAY'S INN, the place whence my father was called to the highest place of justice, and where myself have lived and had my procedure so far, as by his Majesty's rare if not singular grace, to be of both his councils and therefore few men, so bound to their societies by obligation, both ancestral and personal, as I am to yours; which I would gladly acknowledge, not only in having your name joined with mine own in a book, but in any other good office and effect which the active part of my life and place may enable me unto toward the Society, or any of you in particular. And so I bid you right heartily farewell.

Your assured loving friend and fellow,






THE case needs neither repeating nor opening. The point is in substance but one, familiar to be put, but difficult to be resolved; that is, Whether, upon a lease without impeachment of waste, the property of the timber-trees, after severance, be not in him that is owner of the inheritance ?

The case is of great weight, and the question of great difficulty: weighty it must needs be, for that it doth concern, or may concern, all the lands in England; and difficult it must be, because this question sails in confluentiis aquarum, in the meeting or strife of two great tides. For there is a strong current of practice and opinion on the one side, and there is a more strong current, as I conceive, of authorities, both ancient and late, on the other side. And therefore, according to the reverend custom of the realm, it is brought now to this assembly; and it is high time the question receive an end, the law a rule, and men's conveyances a direction.

This doubt ariseth and resteth upon two things to be considered; first, to consider of the interest and property of a timber-tree, to whom it belongeth: and secondly, to consider of the construction and operation of these words or clause, absque impetitione vasti: for within these two branches will aptly fall whatsoever can be pertinently spoken in this question, without obscuring the question by any

other curious division.

For the first of these considerations, which is the interest or property of a timber-tree, I will maintain and prove to your lordships three things.

First, That a timber-tree, while it groweth, is merely parcel of the inheritance, as well as the soil itself.

And, secondly, I will prove, that when either nature, or accident, or the hand of man hath made it transitory, and cut it off from the earth, it cannot change the owner, but the property of it goes where the inheritance was before. And thus much by the rules of the common law.

And, thirdly, I will show that the statute of Gloucester doth rather corroborate and confirm the property in the lessor, than alter it, or transfer it to the


And for the second consideration, which is the force of that clause, absque impetitione vasti, I will also uphold and make good three other assertions.

First, That if that clause should be taken in the sense which the other side would force upon it, that it were a clause repugnant to the estate and void.

Secondly, That the sense which we conceive and give, is natural in respect of the words; and for the matter agreeable to reason and the rules of law.

And lastly, That if the interpretation seem ambiguous and doubtful, yet the very mischief itself, and consideration of the commonwealth, ought rather to incline your lordship's judgment to our construction.

My first assertion therefore is, that a timber-tree is a solid parcel of the inheritance; which may seem a point admitted, and not worth the labouring. But there is such a chain in this case, as that which seemeth most plain, if it is sharply looked into, doth invincibly draw on that which is most doubtful. For if the tree be parcel of the inheritance unsevered, inherent in the reversion, severance will not alien it, nor the clause will not divest it.

To open therefore the nature of an inheritance: sense teacheth there be, of the soil and earth, parts that are raised and eminent, as timber-trees, rocks, houses. There be parts that are sunk and depressed, as mines, which are called by some arbores subterraneæ, because that as trees have great branches and smaller boughs and twigs, so have they in their region greater and smaller veins: so if we had in England beds of porcelane, such as they have in which porcelane is a kind of a plaster buried in the earth, and by length of time congealed and glazed into that fine substance; this were as an artificial mine, and no doubt part of the inheritance. Then are there the ordinary parts, which make the mass of the earth, as stone, gravel, loam, clay, and the like.

Now as I make all these much in one degree, so there is none of them, not timber-trees, not quarries, not minerals or fossils, but hath a double nature; inheritable and real, while it is contained within the mass of the earth; and transitory and personal, when it is once severed. For even gold and precious stone, which is more durable out of earth than any tree is upon the earth; yet the law doth not hold of that dignity as to be matter of inheritance if it be once severed. And this is not Nevil's case because it becometh movable, for there proving there be movable inheritances, as villains in ances which gross, and dignities which are judged hereditaments; but because by their severance they lose their nature of perpetuity, which is of the essence of an inheritance.

are inherit

are not local.

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