and covin, 4. 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, 35 H. VI. there be Br. Collusion some opinion 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. pl. 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 the use, and there it is otherwise: as it is in 14 H. VIII. 4. 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 with 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 where an action may be transferred; but the subpœna in case of use was always assignable. Nay, farther, you find twice, 27 H. VIII. fol. 20. pla. 9. and fol. 29. pla. 21. that a right of use may be transferred. For in the former case Montague maketh an objection, and saith that a right of use cannot be given by fine, but to him that hath the possession; Fitzherbert answereth, "Yes, well enough;" quere the reason, saith the book. And in the latter case, where cestui que use was infeoffed by the disseisor of the feoffee and made a feoffment over, Englefield 1 As Mr. Rowe has pointed out, the cases do not fully bear Bacon out. Br. Feoffm. al uses, 10. 13 a. Plowd. 346. doubted whether the second feoffee should have the use: Fitzherbert said, "I marvel you will make a doubt of it, for there is no doubt but the use passeth by the feoffment to the stranger, and therefore this question needed not to have been made." So the great difficulty in 10 Reginæ, Delamer's case: where the case was in effect, there being tenant in tail of an use, the remainder in fee, tenant in tail made a feoffment in fee by the statute of 1 R. III. and that feoffee infeoffed him in the remainder of the use, who made a feoffment over; and there, question being made, whether the second feoffee should have the use in remainder, it is said that the second feoffee must needs have the best right in conscience; because the first feoffee 1 claimeth nothing but in trust, and the cestui 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 whether the subpoena was to be brought against the feoffee in possession to execute the estate, or against the feoffee out of possession to recontinue the estate, always the subpæna 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, that he could never find, neither by book nor evidence of any 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 at all; and the reason, no doubt, was, because 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 the ancient blood. But for experience of contingent uses, there was nothing more usual in obits than to will the use of the land to certain persons and their heirs so long as they shall pay the chantry 1 i. e. the original feoffee to uses. priests their wages, and in default of payment to limit the use over to other persons and their heirs, and so in course of forfeiture, through many degrees: and such conveyances are as ancient as R. II. his time. al uses, pl. 10. 4. Now for determining and extinguishing of uses, I put the case of collateral warranty before. Add to that, the notable Br. Feoffm. case 14 H. VIII. 4. Halfpenny's case, where this very point was in the principal case. For a rent out of land and the land itself, in course of possession, cannot stand together, but the rent shall be extinct; but there the case is, that the use of the land and the use of the rent may stand well enough together: for a rent charge was granted by the feoffee to one that had notice of the use; and ruled, that the rent was to the ancient use, and both uses were in esse simul et semel; and though Brudenell, Chief Justice, urged the ground of possession to be otherwise, yet he was overruled by other three justices; and Brooke said unto him, he thought he argued much for his pleasure. And' to conclude, we see that things may be avoided and determined by ceremonies and acts like unto those by which they are created and raised: that which passeth by livery ought to be avoided by entry; that which passeth by grant, by claim; that which riseth by way of charge, determineth by way of discharge; and so an use, which is raised but by a declaration or limitation may cease by words of declaration or limitation. As the civilian saith, nihil magis consentaneum est, quam ut iisdem modis res dissolvantur quibus constituuntur. Inception and uses before progression of the statute. For the inception and progression of uses, I have, for a precedent of them, searched other laws; because states and commonwealths have common accidents. And I find in the civil law, that that which cometh nearest in name to the use is nothing like in matter, which is usus fructus; for usus fructus and dominium is with them, as with us particular tenancy and inheritance. But that which resembleth the use most is fidei commissio; and therefore you shall find, in Institut. lib. 2., that Tit. 23. they had a form in testaments to give inheritance to one to the use of another, Hæredem constituo Caium: rogo autem te, Caie, ut hæreditatem restituas Seio. And the text of the civilians saith The 'Something seems wrong here, though all the editions and MSS. substantially agree. Either some intermediate cases are omitted, or, as I rather suspect, this paragraph belongs to some other part of the reading, and has slipt in here by mistake. copy Mr. B. Montagu prints from has a reference to Digge's case, 1 Rep. 173. that for a great time, if the heir did not as he was required, cestui que use had no remedy at all, until that about the time of Augustus Cæsar there grew in custom a flattering form of trust: for they penned it thus; Rogo te per salutem Augusti, or, per fortunam Augusti, &c.: whereupon Augustus taking the breach of trust to sound in derogation of himself, made a rescript to the prætor to give remedy in such cases. Whereupon, within the space of a hundred years these trusts did spring and spread so fast, as they were forced to have a particular chancellor only for uses, who was called prætor fidei commissarius; and not long after, the inconvenience of them being found, they resorted to a remedy much like unto this statute; for, by two decrees of senate, called senatus consultum Trebellianum et Pegasianum, they made cestui que use to be heir in substance. I have sought likewise whether there be any thing which maketh with them in our law; and I find that Periam, Chief Baron, in the argument of Chudleigh's case, compareth them to copyholders. And aptly for many respects: First, because as an use seemeth to be an hereditament in the court of chancery, so the copyhold seemeth to be an hereditament in the lord's court: Secondly, this conceit of imitation hath been troublesome in copyholds, as well as in uses; for it hath been of late days questioned, whether there should be dower, tenancy by the courtesy, intails, discontinuances, and recoveries of copyholds, in the nature of inheritances at the common law; and still the judgments have weighed, that you must have particular customs in copyholds, as well as particular reasons of conscience in use, and the imitation rejected: And thirdly, because they both grew to strength and credit by degrees; for the copyhold at first had no remedy at all against the lord, but was as a mere tenancy at will; afterwards it grew to have remedy in chancery, and afterwards against the lords by trespass at the common law; and now lastly the law is taken by some, that they have remedy by ejectione firma, without a special custom of leasing. So no doubt in uses, at the first the chancery made question to give remedy, until uses grew more general, and the chancery more eminent; and then they grew to have remedy in conscience: but they could never maintain any manner of remedy at the common law, neither against the feoffee, nor against strangers; but the remedy against the feoffee was left to the subpoena, and the remedy against strangers to the feoffee. Now for the causes whereupon uses were put in practice. Mr. Coke, in his Reading, doth say well, that they were produced sometimes for fear, and many times for fraud; but I hold that neither of these causes were so much the reasons of uses as another reason in the beginning, which was, that the lands by the common law of England were not testamentary or devisable; and, of late years, since the statute, the ease of the conveyance, for sparing of repurchases and execution of estates; and now, last of all, an excess of will in men's minds, affecting to have assurances of their estates and possessions to be revocable in their own times, and too irrevocable after their own times. Now for the commencement and proceeding of them, I have considered what it hath been in course of common law, and what it hath been in course of statute. Feoffm. For the common law, the conceit of Shelley, in 24 H. VIII., Bro off. and of Pollard, in 27 H. VIII., seemeth to me to be without ground; which was, that the use did succeed the tenure: for after that the statute of Quia emptores terrarum, which was made 18 E. I., had taken away the tenure between the feoffor and the feoffee, and left it to the lord paramount, they said that the feoffment, being then merely without consideration, should therefore intend an use to the feoffor. Which cannot be; for, by that reason, if the feoffment before the statute had been made tenendum de capitalibus dominis, as it might be, there should have been an use unto the feoffor before that statute. And again, if a grant had been of such things as consist not in tenure, as advowsons, rents, villains, and the like, there should have been an use of them: wherein the law was quite contrary; for after the time that uses grew common, yet it was, nevertheless, a great doubt whether things that did lie in grant did not carry a consideration in themselves because of the deed. And therefore I do judge that the intendment of an use to the feoffor where the feoffment was without consideration grew long after, when uses waxed general; and for this reason because when a feoffment was made, and that it rested doubtful whether it were in use or in purchase; because purchases were things notorious and trusts were things secret, the chancellor thought it more convenient to put the purchaser |