But the third, we will speak somewhat of; both because it is a key to open many of the true reasons, and learnings of uses, and because it tendeth to decide our great and principal doubts at this day.

Coke, solicitor, entering into his argument of Chudleigh's case, said sharply and fitly: "I will put never a case but it shall be of an use, for an use in law hath no fellow ;" meaning, that the learning of uses is not to be matched with other learnings. Anderson, chief justice, in the argument of the same case, did truly and profoundly control the vulgar | opinion collected upon 5 E. IV. that there might be possessio fratris of an use; for he said, that it was no more but that the chancellor would consult with the rules of law, where the intention of the parties did not specially appear; and therefore the private conceit, which Glanville, justice, cited in the 42 Reginæ, in the case of Corbet, in the common pleas, of one of Lincoln's Inn, whom he named not, but seemed to allow, is not sound; which was, that an use was but a limitation, and did ensue the nature of a possession.

This very conceit was set on foot in 27 H. VIII. in the Lord Darcie's case, in which time they began to heave at uses: for thereafter the realm 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 year after, this statute was made; so that this opinion seemeth ever to be a prelude and forerunner to an act of parliament touching uses; and if it be so meant now, I like it well but in the mean time the opinion itself is to be rejected; and | because, in the same case of Corbet, three reverend 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 judgment, that an use of inheritance could not be limited to cease; and again, that the limitation of a new use could not be to a stranger; ruling uses merely according to the ground of possession; it is worth the labour to examine that learning. By 3 Hen. VII. you may collect, that if the feoffees had been disseised by the common law, and an ancestor collateral of cestuy que use had released unto the disseisor, and his warranty had attached upon cestuy que use; yet the chancellor, upon this matter showed, would have no respect unto it, to compel the feoffees to execute the estate unto the disseisor: for there the case being, that cestuy que use in tail 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 an use, as it will do a right of possession; and the reason is, because the law of collateral warranty is a hard law, and not to be considered in a court of conscience. In 5 Edw. IV. it is said, that if cestuy que use be attainted, query, who shall have the land, for the lord shall not have the land; so as there the use doth not limitate the possession; and the reason is, because

the lord hath a rent by title; for that is nothing to the subpoena, because the feoffee's intent was never to advance the lord, but only his own blood; and therefore the query of the book ariseth, what the trust and confidence of the feoffee did tie him to do, as whether he should not sell the land to the use of the feoffee's will, or in pios usus? So favourable they took the intent in those days, as you find in 27 Hen. VI. that if a man had appointed his use to one for life, the remainder in fee to another, and cestuy que use for life had refused, because the intent appeared not to advance the heir at all, nor him in reversion, presently the feoffee should have the estate for life of him that refused, some ways to the behoof of the feoffor. But to proceed in some better order towards the disproof of this opinion of limitation, there be four points wherein we will ex amine the nature of uses.

1. The raising of them.
2. The preserving of them.
3. The transferring of them.
4. The extinguishing of them.

1. In all these four, you shall see apparently that uses stand upon their own reasons, utterly differing from cases of possession. I would have one case showed by men learned in the law, where there is a deed; and yet there needs a consideration; as for parole, the law adjudgeth it too light to give action without consideration; but a deed ever in law imports a consideration, because of the deliberation and ceremony in the confection of it: and therefore in 8 Reginæ it is solemnly argued, that a deed should raise an use without any other consideration. In the queen's case, a false consideration, if it be of record, will hurt the patent, but want of consideration doth never hurt it; and yet they say that an use is but a nimble and light thing; and now, contrariwise, it seemeth to be weightier than any thing else: for you cannot weigh it up to raise it, neither by deed, nor deed inrolled, without the weight of a consideration; but you shall never find a reason of this to the world's end, in the law: But it is a reason of chancery, and it is this:

That no court of conscience will enforce donum gratuitum, though the intent appear never so clearly, where it is not executed, or sufficiently passed by law; but if money had been paid, and so to a person damnified, or that it was for the establishment of his house, then it is a good matter in the chancery. So again I would see in the law, a case where a man shall take by a conveyance, be it by deed, livery, or word, that is not party to the grant: I do not say that the delivery must be to him that takes by the deed, for a deed may be delivery to one man to the use of another. Neither do I say that he must be party to the delivery of the deed, for he in the remainder may take though he be not party; but he must be party to the words of the grant; here again 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 be declared, it is not material to whom the publication be. So much for the raising of uses. Now as to the preserving of them.

2. There is no case in the common law, wherein notice simply and nakedly is material to make a covin, or particeps criminis; and therefore if the heir which is in by descent, infeoff one which had notice of the disseisin, if he were not a disseisor de facto, it is nothing: so in 33 H. VI. if a feoffment be made upon collusion, and feoffee makes a feoffment over upon good consideration, the collusion is discharged, and it is not material if they had notice or no.. So as it is put in 14 H. VIII. if a sale be made in a market overt upon good consideration, although it be to one that hath notice that they are stolen goods, yet the property of a stranger is bound; though in the book before remembered 33 H. VI. some opine to the contrary, which is clearly no law; so in 31 E. III. if assets descend to the heir, and he 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 25 Ass. p. 1. if a man enter of purpose into my lands, to the end that a stranger which hath right, should bring his præcipe and evict the land, I may enter notwithstanding any such recovery; but if he 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 between them, it is nothing: and the reason of these cases is, because the common law looketh no farther than to see whether the act were merely actus fictus in fraudem legis; and therefore wheresoever it 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. VIII. and 28 H. VIII. and divers other books; which prove that if the feoffee sell the land for good consideration to one that hath notice, the purchaser shall stand seised to the ancient use; and the reason is, because the chancery looketh farther than the common law, namely, to the corrupt conscience of him that will deal in the land, knowing it in equity to be another's; and therefore if there were radix amaritudinis, the consideration purgeth it not, but it is at the peril of him that giveth it: so that consideration, or no consideration, is an issue at the common law; but notice, or no notice, is an issue in the chancery. And so much for the preserving of uses.

3. For the transferring of uses there is no case in law whereby an action is transferred, but the subpœna in case of use was always assignable; nay farther, you find twice 27 H. VIII. fol. 10, pla. 9, and fol. 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; query the reason, saith the book.

And in the latter case, where cestuy que use was infeoffed by the disseisor of the feoffee, and made a feoffment over, Englefield doubted whether the second feoffee should have the use. Fitz-Herbert said, "I marvel you will make a doubt of it, for there is no doubt but the use passeth by the feoffment to the stranger, and therefore this question needeth not to have been made." So the great difficulty in 10

Reginæ, Delamer's case, where the case was in effect tenant in tail of an use, the remainder in fee; tenant in tail made a feoffment in fee; tenant, by the statute of 1 R. III. 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 feoffee claimed nothing but in trust, and the cestuy que use cannot claim it against his sale; but the reason is apparent, as was touched before, that an use in esse was but a thing in action, or in suit to be brought in court of conscience, and where the subpoena was to be brought against the feoffee in possession to execute the estate, or against the feoffee out of possession to recontinue the estate, always the subpœna might be transferred; for still the action at the common law was not stirred, but remained in the feoffee; and so no mischief of maintenance or transferring rights.

And if an use being but a right may be assigned, and passed over to a stranger, a multo fortiori, it may be limited to a stranger upon the privity of the first conveyance, as shall be handled in another place: and as to what Glanvile, justice, said, he could never find by any book, or evidence of antiquity, a contingent use limited over to a stranger; I answer, first, it is no marvel that you find no case before E. IV. his time, of contingent uses, where there be not six 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 practice, cases of uses come seldom in question, except it be sometimes upon the alienations of tenants in tail by fine, that the feoffees will not be brought to execute estates to the disinheritance of ancient blood. But for experience in the conveyance, there was nothing more usual in obits, than to will the use of the land to certain persons and their heirs, so long as they shall pay the chantry priests their wages, and in default of payment to limit the use over to other persons and their heirs ; and so, in case of forfeiture, through many degrees; and such conveyances are as ancient as R. II. his time.

4. Now for determining and extinguishing of uses, I put the case of collateral warranty before, and to that the notable case of 14 H. VIII. Halfpenny's case, where this very point was as in the principal case; for a right out of land, and the land itself in case of possession, cannot stand together, but the rent shall be extinct; but there the case is, that the use of the land and the use of the rent shall stand well enough together; for a rent charge was granted by the feoffee to one, that had notice of the use, and ruled, that the rent was to the ancient use, and both uses were in esse simul et semel and though Brudenell, chief justice, urged the ground of possession to be otherwise, yet he was overruled by the other three justices, and Brooke said unto him, he thought he argued much for his pleasure. And to conclude, we see that things may be avoided and determined by the ceremonies and acts, like unto those by which they are created and raised; that which passeth by livery ought to be avoided by

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 any evidence before king R. II. his time, the clause "ad opus et usum," and the very Latin of it savoureth of that time: for in ancient time, about Edw. I. his time, and before, when lawyers were part civilians, the Latin phrase was much purer, as you may see by Bracton's writing, and by ancient patents and deeds, and chiefly by the register of writs, which is good Latin; wherein this phrase, "ad opus et usum," and the words, "ad opus," is a barbarous phrase, and like enough to be the penning of some chaplain that was not much past his grammar, where he had found "opus et usus coupled together, and that they did govern 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, the clause of forfeiture of lands, the words, "which he hath in possession or in use," until Ed. IV.'s reign.

Thirdly, I find the word "use" in no statute until 7 Rich. II. cap. 11. Of provisors, and in 15 Rich. Of mortmain.

Fourthly, I collect out of Choke's speech in 8 Ed. IV. where he saith, that by the advice of all the judges it was thought that the subpœna did not lie against the heir of the feoffee which was in by law, but cestuy que use 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, and did leave it to the particular conscience of the feoffee: but after the chancery grew absolute, as may appear by the statute of 13 H. VI. that complainants in chancery should enter into bond to prove their suggestions, which showeth that the chancery at that time began to embrace too far, and was used for vexation; yet nevertheless it made scruple to give remedy against the heir being in by act in law, though he were privy so that it cannot be that uses had been of any great continuance when they made that question as for the case of "matrimonii prælocuti," it hath no affinity with uses; for wheresoever there was remedy at the common law by action, it cannot be intended to be of the nature of an use.

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

Now to conclude the progression of uses in course of statutes, I do denote three special points. 1. That an use had never any force at all at the common law, but by statute law.

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

3. That the special intent unlawful and covinous was the original of uses, though after it induced to the lawful intent general and special; for 30 Edw. III. is the first statute I find wherein mention is made of the taking of profits by one, where the estate in law is in another.

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

But to proceed, in 5 Edward III. a statute was made for the relief of creditors against such as made covinous gifts of their lands and goods, and conveyed their bodies into sanctuaries, there living high upon others' goods; and therefore that statute made their lands liable to their creditors' executions in that particular case, if they took the profits. In 1 Richard II. a statute was made for relief of those as had right of action, against those as had removed the tenancy of the præcipe 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 feoffors as they took the profits, and so as the defendants bring their actions within a year of their expulsions. In 2 Richard II. cap. 3, session 2, an imperfection of the statute of 50 Edward III. was holpen; for whereas the statute took no place, but where the defendant appeared, and so was frustrated, the statute giveth, upon proclamation made at the gate of the place privileged, that the land should be liable without appearance.

In 7 R. II. a statute was made for the restraint of aliens, to take any benefices, or dignities ecclesiastical, or farms, or administration to them, without the king's special licence, upon pain of the statute of provisors; which being remedied by a former statute, where the alien took it to his own use; it is by that statute remedied, where the alien took it to the use of another, as it is said in the book

though I guess, 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." In 15 Rich. II. cap. 5, a statute was made for the relief of lords against mortmain, where feoffments were made to the use of corporations; and an ordinance made that for feoffments past the feoffees should before a day, either purchase licence to amortise them, or alien them to some other use or other feoffments to come, or they should be within the statute of mortmain. In 4 Hen. IV. cap 7, the statute of 1 Richard II. is enlarged in the limitation of time; for whereas the statute did limit the action to be brought within the year of the feoffment, this statute in case of a disseisin extends the time to the life of the disseisor; and in all other actions, leaves it to the year from the time of the action grown. In 11 Henry VI. cap. 3, that statute of 4 Henry IV. is declared, because the conceit was upon the statute, that in case of disseisin the limitation of the life of the disseisor went only to the assise of novel disseisin, and to no other action; and therefore that statute declareth the former law to extend to all other actions, grounded upon novel disseisin. In 11 Henry VI. cap. 5, a statute was made for relief of him in remainder against particular tenants, for lives, or years, that assigned over their estates, and took the profits, and then committed waste against them; therefore this statute giveth an action of waste being pernors of the profits. In all this course of statutes no relief is given to purchasers, that come in by the party, but to such as come in by law, as defendants in præcipes, whether they be creditors, disseisors, or lessors, and that only in case of mortmain: and note also, that they be all in cases of special covinous intents, as to defeat executions, tenancy to the præcipe, and the statute of mortmain, or provisors. From 11 Henry VI. to 1 R. III. being the space of fifty years, there is a silence of uses in the statute book, which was at that time, when, no question, they were favoured most. In 1 R. III. cap. 1, cometh the great statute for relief of those that come in by the party, and at that time an use appeareth in his likeness; for there is not a word spoken of taking the profits, to describe an use by, but of claiming to an use; and this statute ordained, that all gifts, feoffments, grants, &c. shall be good against the feoffors, donors, and grantors, and all other persons claiming only to their use; so as here the purchaser was fully relieved, and cestuy que use was obiter enabled to change his feoffees; because there were no words in the statute of feoffments, grants, &c. upon good consideration; but generally in Hen. VII.'s time, new statutes were made for farther help and remedy to those that came in by act in law; as 1 Hen. VII. cap. 1, a formedon is given without limitation of time against cestuy que use; and obiter, because they make him a tenant, they give him advantage of a tenant, as of age, and voucher: query 4 Hen. VII. cap. 17, the wardship is given to the lord of the heir of cestuy que use, dying and no will declared, is given to the lord, as if he had died seised in demesne, and action of waste given to the heir

against the guardian, and damages, if the lord were barred in his writ of ward; and relief is likewise given unto the lord, if the heir holding the knight's service be of full age. In 19 Hen. VII. cap. 15, there is relief given in three cases, first to the creditors upon matters of record, as upon recognisance, statute, or judgment, whereof the two former were not aided at all by any statute: and the last was aided by a statute of 50 E. III. and 2 R. II. only in cases of sanctuary men. Secondly, to the lords in socage for their relief, and heriots upon death, which was omitted in the 4 Hen. VII. and lastly to the lords of villains, upon a purchase of their villains in use. In 23 Hen. VIII. cap. 10, a further remedy was given in a case like unto the case of mortmain; for in the statute of 15 Rich. II. remedy was given where the use came ad manum mortuam, which was when it came to some corporation: now when uses were limited to a thing, act, or work, and to a body, as to the reparation of a church, or an abbot, or to a guild, or fraternities as are only in reputation, but not incorporate, as to parishes; or such guilds or fraternities as are only 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 void; neither doth the statute express to whose benefit the use shall be made void, either the feoffor, or feoffee, but leaveth it to law, and addeth a proviso, that uses may be limited twenty years from the gift, and no longer.

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

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

This statute, as it is the statute which of all others hath the greatest power and operation over