Chudleigh's case. 1 Rep.

1 And. 314.

the famous case between Dillon and Freine, concerning an assurance made by Chudleigh, this law 121. Poph. 71. began to be reduced to a true and sound exposition; and the false and perverted exposition which had continued for so many years (but, howsoever, never countenanced by any rule or authority of weight, but only entertained in a popular conceit and put in practice at adventure) grew to be controlled.1 Since which time, as it cometh to pass always upon the first reforming of inveterate errors, many doubts and perplexed questions have risen, which are not yet resolved, nor the law thereupon settled the consideration whereof moved me to take the occasion of performing this particular duty to the house, to see if I could spend my travel to a more general good of the commonwealth herein. Wherein, though I could not be ignorant either of the difficulty of the matter, which he that taketh in hand shall soon find, or much less of my own unableness, which I had continual sense and feeling of; yet, because I had more means of observation than the younger sort, and more leisure than the greater sort, I did think it not impossible to work some profitable effect: the rather because where an inferior wit is bent and constant upon one subject, he shall many times, with patience and meditation, dissolve and undo many those knots which a greater wit, distracted with many matters, would rather cut in two than unknit. At the least, if my invention or judgment be too barren or too weak, yet, by the benefit of other arts, I did hope to dispose or digest the authorities and opinions which

1 See Note A. at the end.

2 So Harl. MS. 6688. The common reading is "absolution."

of

are in cases of uses in such order and method as they should take light one from another, though they took 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 ancient form of reading, which you may see in Mr. Frowicke's upon the prerogative and all other readings of ancient time, being of less ostentation and more fruit than 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 cases of like law and contrary law; whereof the one includes the learning of a ground, the other the learning of a difference,) and not to stir conceits and subtle doubts, or to contrive a multitude of 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 ancient course, to open the law upon doubts, and not to open doubts upon the law.

The exposition of this statute consists upon matter without the statute, and matter within the statute.

There be three things concerning this statute, and all other statutes, which are helps and inducements to the right understanding of any statute, and yet are no part of the statute itself:

1. The consideration of the case at the common law.

2. The consideration of the mischief which the stat

ute intendeth to redress; as also any other mischief, which an exposition of the statute this

way may breed.

way or that 3. Certain maxims of the common law, touching exposition of statutes.

Having therefore framed six divisions, according to the number of readings, upon the statute itself, I have likewise divided the matter without the statute into six introductions or discourses; so that for every day's reading I have made a triple provision :

1. A preface or introduction.

2. A division upon the law itself.

3. A few brief cases for exercise and argument. The last of which I would have forborn, and, according to the ancient manner, you should have taken some of my points upon my divisions, one, two, or more, as you had thought good; save that I had this regard, that the younger sort of the bar were not so conversant in matters upon the statutes; and for their ease I have interlaced some matters at the common law, that are more familiar within the books.

1. The first matter I will discourse unto you is the nature and definition of an use, and its inception and progression before the statute.

2. The second discourse shall be of the second spring of this tree of uses since the statute, after1 it was lopped and ordered by the statute.

3. The third discourse shall be of the estate of the assurances of the realm at this day upon uses, and what kind of them is convenient and reasonable and not fit to be shaken or touched, as far as the sense of law and a natural construction of the statute will give

1 Omitted in the editions and MS. 1858.

leave; and what kind of them is inconvenient and meet to be suppressed.

4. The fourth discourse shall be of certain rules of expositions of laws applied to the present purpose.

5. The fifth discourse shall be of the best course to remedy the inconveniences now a foot by construction of the statute, without offering violence to the letter

or sense.

6. The sixth 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 think good to reserve, and not to publish.

definition of

The nature of an use is best discerned by Nature and considering, first, what it is not; and then an use. what it is for it is the nature of all human science and knowledge to proceed most safely by negative and exclusion, to what is affirmative and inclusive.

First, therefore, an use is no right, title, or interest in law; and therefore Mr. Attorney, who read upon this statute, said well, that there are but two rights: Jus in re: Jus ad rem. The one is an estate, which is Jus in re: the other a demand, which is Jus ad rem. But an use is neither: so that in 24 H. VIII. Br. Feoff. al it is said that the saving of the statute of 1 uses, pl. 40. R. III., which saveth any right or interest of intails, must be understood of intails of the possession, and not of the use, because an use is no right nor inter

1 Coke, who read at the Inner Temple in 1592. He repeats the phrase in his Report of Chudleigh's Case, 1 Rep. 121.; and one may well suppose we have there some fragments of his reading worked up into the argu

ment.

15 H. 7. 2. & 13.

pl. 16., and Forfeiture,

pl. 14.

Sec. 462, &c. est; so again, you see Littleton's conceit, that an use should amount to a tenancy at will whereupon a release might well inure because of privity, is controlled by 5 H. VII. 5. and divers other books, which say that cestui que use is punishable in trespass towards the feoffees. Only 5 H. V. Br. Presenta- 3. seemeth to be at some discord with other tion al Eglise books, where it is admitted for law, that if there be cestui que use of an advowson, and he be outlawed in a personal action, the king should have the presentment; which case Master Ewens, in the argument of Chudleigh's case, did seek to reconcile thus: where cestui que use, being outlawed, had presented in his own name, there the king should remove his incumbent. But no such thing can be collected upon the book, and, therefore, I do rather conceive the error grew upon this; that, because it was generally thought that an use was but a pernancy of profits, and then again, because the law is that upon outlawries upon personal actions the king shall have the pernancy of profits, they took that to be one and the selfsame thing which cestui que use had, and which the king was entitled unto: which was not so; for the king had remedy in law for his pernancy of the profits, but cestui que use had none.

The books go farther, and say that an use is nothing. As in 2 H. VII. 4. debt was brought and the plaintiff counted upon a demise for years rendering rent, &c.; the defendant pleaded in bar, that the plaintiff nihil habuit tempore dimissionis; the plaintiff made a special replication, and showed that he had an use, and issue joined upon that: whereby it appeareth that if he had taken issue upon the defendant's plea, it should have