Br. Feoffin. al uses, pl. 30.

Br. Feoffm.

al uses, pl. 22. [Case of

cestui que use with limited estate grant. ing a larger estate.]

cases as in testimonies, if one is found faulty in one point it deserves no credit in others. And it is clear enough that an estate in fee simple cannot be restrained from alienation, [in use] any more than in possession. But be the case pardoned of this error, and considered further. I ask when the new use is to spring by this condition? Plainly on the consent and conclusion, On the other hand, when would the first uses be disturbed? Not before the alienation which removes the possession from privity. Now, must not a conclusion of alienation precede an actual alienation? Certainly it must: and therefore the springing use has the start, and prevents the disturbance; and if this case be well scanned, I say it makes greatly for me, for in truth it was the opinion of this inventor that if the contingent use had been limited to await the alienation consummate, it had come nimis tarde; and to mend this, the rising was appointed on the conclusion: and so I repent that I have discredited the case, as it makes for me.

In 6 Ed. VI. feoffment was made to the use of J. S. and his heirs until J. D. should pay a certain sum, and then to the use of the said J. D. and his heirs: the payment was made, and it was taken for a disputable point whether without actual entry of the feoffees, the use should be executed; and Mr. Brooke gives politic counsel herein, that entry be made both in the name of cestui que use and the feoffees, and so to take advantage of each of their rights. This case, duly considered, makes directly for me; for if it was so doubtful whether the contingent use should be executed without an entry of the feoffees when there was no disturbance, it is consequentially admitted as clear that it cannot rise if there be a disturbance: nam qui dubitat de majore minus [concedit]. And the learning is of the like nature in 4 Hen. VII. and 35 Hen. VIII. Dyer, 57.: where an estate was executed by the cestui que use by force of the statute 1 Rich. III., and the question was, whether for vesting the use in the issue in tail, or in him in remainder, there needed any entry of the feoffees. And it was granted that no greater estate passed by such conveyance than could rightfully pass, inasmuch as it is but an authority executed, and that those that hold over are as tenants at sufferance; and yet it was questionable if it should not be necessary to revive the possession of the feoffees, although there was no real or material

The MS. here and at the bottom of p. 622, speaks in the third person, as from the Reporter.

disturbance. And so these cases support each other and yield this sense of law; that on each contingent or discontinued use, it is dubious whether there is need of the new strength of possession by the feoffees: [opinions are contradictory where there is no disturbance;] but it is clear that it is necessary where there is a disturbance; and so this case fortified with the other swayeth solely to my side.

rently on
same point
Dyer, 298b,

pl. 30, 3694
pl. 51.;
i Rep. 133.]

In 3 Ma. the case was, that one had taken a sum of money beforehand for the marriage of his son and heir, and covenanted that if his son should refuse he would stand seised to the use of the covenantee and his heirs for securing the money till it [See appa. should be paid: the covenantee died; and after, a refusal was made; and the question is, whether the heir shall be in ward who comes in by colour of a title ancestral descended. But to what purpose makes this case? For we are not arguing whether contingent uses are void in their limitation ab initio without any impediments ex post facto; and because there is no interruption in this case, but all was in privity, it is merely impertinent. In 6 and 7 Eliz. (the case of the Lady Ann Manners, on assize, Dy. 234. judged in 8 Hen. VIII., and after error brought on it and not pursued), the case was that, upon a treaty of marriage, in consideration thereof one covenanted that he should receive the profits of certain lands during his life, and afterwards would stand seised to the use of his son and his wife after the espousals should be solemnised, and afterwards (says Mr. Atkinson) he executed divers assurances by bargains and sales, fines, feoffments, and recoveries, to ruinate the uses limited, and after intermarriage was had, and the son and daughter entered after the death of the father and made a feoffment to the first uses; and it was adjudged lawful. And no marvel; for Mr. Atkinson has mistaken the book and transposed the time, which is material; for the espousals, which was the time of limitation, were solemnised before any assurance made; and so it was a present use and not contingent. Now it is not doubtful but that a present use can be discontinued, and therefore the judgment must be taken to be that the feoffor, notwithstanding all his assurances, continued the pernancy of the profits; which shows that all was covinous. And so this case rightly understood makes nothing to our purpose.

In 17 Eliz. a married man made a feoffment to the use of Dy. 340.

"Cont.: nul disturbance."

Br. Feoffm. al uses, pl. 50.

[Plowd. 352.]

his second wife, and afterwards joined with the feoffees in
certain conveyances to new uses, and afterwards took a second
wife, and died; and the second wife entitled herself by the
first use.
It must be granted this is our very case. But see
what was the resolution or better opinion. The court was
divided. On the contrary part were Monson and Harper; on
our part Dyer and Manwood, in number equal, judges famous
and skilled the other two were not advanced as ours were,
who have been, the one for profound and sound judgment, the
other for subtlety, the most absolute judges that have ever
been. Moreover, the other two do not agree between them-
selves in the reason, which enfeebles their opinion; for they do
not agree whether the feoffees have a title or an authority.
But our two agree in opinion and reason.
Which reason, to
be more memorable, Mr. Dyer has put into Latin words: adhuc
remanet quædam scintilla juris et tituli, quasi medium quid inter
utrosque status. Which words are very significant. For the
most proper sense is that, if two uses be limited, one to deter-
mine and the other to commence, between the cesser of the one
and the rising of the other, the feoffees (who are vessels, as
Mr. Atkinson terms them) receive the land from the one
cestui que use and deliver it to the other, and have a right, in
the sight of the law, between the two. And so this last case,
being of the greatest effect, makes for our part.

But true it is that the case in 30 Hen. VIII. is stronger against us; that if a man covenant that, on being infeoffed of the manor of D., he will stand seised of the manor of S., this use binds the land into whatever hands it comes. Which case, as it is in a book of the smallest authority, so the absurdity and incongruity of the reason alleged destroys the conclusion, credit, and authority of it. For it seems he compares an use to a charge which are things of as contrary a nature as can be imagined; for the essence of the one consists in privity, the other regards it not. And so the case is of no credit against such a mass of arguments and reasons as shall be shown hereafter.

And I cite as on my part the case in 10 Eliz., Delamer's case, adjudged on great advice: for in the argument thereof are these words, "that the statute of 27 Hen. VIII. conveys no possession to the use, but only to an use in esse;" and a contingent use cannot be said to be an use in esse, any more

than a suspended or discontinued use, which differ inasmuch as the one resembles a person dead, and the other a person not born; the one future, the other past: whereof both have need of the entry of the feoffees, to give its birth to the one, and to revive the other. And all the parts of the case, well considered, make for our part.

Now, as to reputation and common opinion, it will be said that after the statute of 27 Hen. VIII. made, for sixty years past, infinite of these assurances have been made, and that by the most learned and mighty, who have endeavoured to perpetuate their families; and if it be error, communis error facit jus. To which I answer, that always the judges in their judicial knowledge have used to reform the erroneous practices and tolerations of the times. Mr. Richill, whom Littleton Lit. 720. calls his master, made a perpetuity [of an estate] in possession, of which many at this time no doubt do the like, et in hoc discipulus fuit suprà magistrum. And I doubt not but the device of a rent-charge granted by him in remainder to frustrate a common recovery had by tenant in tail was advised by the most skilful lawyers, and admitted for law until lately, when Hunt and Chappel's case was adjudged. And it is likely [ Rep. 61.] that counsellors of the law have advised men in such cases, that when the cases come to be scanned it is hard to argue how the law will be taken; but in the mean time, if they prove void, yet the law varies as it chances, and it will be a bridle on the heir that he shall not venture to sell, and a scruple to the purchaser that he shall not buy; and so it is but a conveyance adventured: inconvenience there is none. And to the text of the common law, communis error facit jus, one doctor says, in favorabilibus; another says, facit jus, subintellige, dormire: but the learned judges can awaken it when it pleases them.

Now, to consider the very natural sense of the statute of 27 Hen. VIII. For I will not have it bruited that it is endeavoured to frame the law to the time. For, as you my lords judges better know, so, with modesty, I may put it in your remembrance, that your authority over the laws and statutes of this realm is not such as the Papists affirm the Church to have over the Scriptures, to make them a shipman's hose or nose of wax; but such as we say the Church has over them, scil. to expound them faithfully and apply them properly; and therefore the rule is of effect, non leges politis aptandæ,

sed politiæ legibus. And so committing all reasons of Parliament to silence awhile, as if there were no inconvenience, I will endeavour to show the intent and letter of the statute, the sense of which ought to be taken:

1st, From the consideration of the law before the statute: 2nd, From the preamble of the statute:

3rd, From the body of the statute.

Touching the law before the statute, I will not range far, but on it I will ground two forcible reasons which decide the controversy.

1. It is to be noted that the statute of 27 Hen. VIII. represents and supplies the part of the feoffees, which is well seen by 28 Hen. VIII., where the case is that baron and feme were jointly in of an use before the statute, and in præcipe brought after the statute against the baron alone, he pleaded joint tenancy with his wife: the court said he ought to show the statute, as at common law he should have shown by what feoffment [they held.] The statute therefore succeeds in office to the feoffees. Wherefore my first conclusion is this: that which the feoffees could not execute before the statute by conveyance, the statute does not execute by ordinance. Than this ground nothing can be more sensible or reasonable. Then at common law, if the feoffees had an absolute use in fee simple, the feoffees could execute the fee simple in possession: if one had a particular use with divers remainders thereof, if all in remainder agreed, the feoffees could execute the estate accordingly. But on the other part if one had a contingent use, could the feoffees execute this use? No. For not only are they not compellable by subpoena, but moreover if they were willing, they could not do it by any device in law. Wherefore if the feoffees could not execute this before the statute, no more does the statute after : but when the contingent use comes in esse, at which time the feoffee can execute it, the statute wakes it.

2. As a second conclusion it is to be noted that, as it is a common and yet a good learning that the statute de donis conditionalibus changes not the law as to the creation of estates tail, but only for their preservation, so this statute of 27 Hen. VIII. alters not the law as to raising of uses, but only to draw the possession after them. Wherefore if a contingent use could not rise at common law if the possession

'I think "cestuy que use" would make better sense. As to the whole paragraph see Note D. to the Reading, p. 450.