will perform his intent. But it is a shorter speech to say, that usus est dominium fiduciarium: Use is an ownership in

trust.

So that usus et status, sive possessio, potius differunt secundum rationem fori, quam secundum naturam rei, for what one is in course of law, the other is in course of conscience. And for a trust, which is genus' to the use, it is exceedingly well defined by Azo, a civilian of great understanding: Fides est obligatio conscientiæ unius ad intentionem alterius. And they have a good division likewise of rights: Jus precarium: Jus fiduciarium: Jus legitimum: a right in courtesy, for the which there is no remedy at all: a right in trust, for which there is a remedy, but only in conscience: a right in law.

So much of the nature and definition of an use.

It followeth to consider the parts and properties of an use: wherein it appeareth by the consent of all books, and it was distinctly delivered by Justice Walmsley in 36 of Elizabeth: that the trust consisteth upon three parts:

The first, that the feoffee will suffer the feoffor to take the profits: the second, that the feoffee upon the request of the feoffor, or notice of his will, will execute the estate to the feoffor, or his heirs, or any other by his direction: the third, that if the feoffee be disseised, and so the feoffor disturbed, the feoffee will reenter, or bring an action to recontinue the possession. So that these three, pernancy of profits, execution of estates, and defence of the land, are the three points of the trust.

For the properties of an use, they are exceeding well set forth by Fenner, Justice, in the same case; and they be three: Uses, saith he, are created by confidence; preserved by privity (which is nothing else but a continuance of the confidence without interruption); and ordered and guided by conscience, either by the private conscience of the feoffee, or the general conscience of the realm, which is Chancery.3

The two former of which, because they be matters more thoroughly beaten and we shall have occasion hereafter to handle them, we will not now dilate upon: but the third we will speak somewhat of; both because it is a key to open many

So Harl. MS. 6688. The common reading is "the way."

2 So Harl. MS. 6688. instead of "a:" i. e. the trust which the feoffee is bound to perform.

3 These passages from the judgments of Walmsley and Fenner do not appear elsewhere.

The parts

and proper

ties of a use.

36.

of the true reasons and learnings of uses, and because it tendeth to decide our great and principal doubts at this day. 1

Coke, Solicitor, entering into his argument of Chudleigh's case, said sharply and fitly 2: "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. And Anderson, Chief Justice, in the argument of the same case, did truly and profoundly control the vulgar opinion, Br. Descent, collected upon 5 E. IV. 7. 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 Glanvile, Justice, cited in 42 Reginæ, in the case of Corbet in the Common Pleas, of one of Lincoln's Inn, (whom he named not, but seemed well to allow of the opinion,) is not sound; which was, that an use was but an imitation and did ensue the nature of a possession.

1 Rep. 88.

27 H. 8. 9, 10.

Br. Feoff. al uses, 21.

This very conceit was set on foot in 27 H. VIII. in the Lord Dacre's case, in which time they began to heave at uses. For there, after the realm had many ages together put in ure the passing of uses by will, they began to argue that an use was not devisable, 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 meantime 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 H. VII. 13. you may collect, that if the feoffees had

See Note B. at the end.

2 I suppose the passage is represented in Coke's own report at the beginning of p. 123. by the parenthesis, "for the treatise shall be only of uses."

In Coke's report, 1 Rep. 88., the opinion is given as Glanville's, without allusion to the Lincoln's Inn man. Coke represents the judgment to have been given in Easter Term, which was after this Reading; and, if so, we must suppose this passage to have been subsequently inserted. But the Pleadings show a judgment in Hilary Term and afterwards a writ of error: so that it seems possible Coke's Report may be, wholly or in part, of the judgment delivered just before Bacon's Reading.

uses, 34.

been disseised by the common law, and an ancestor collateral of cestui que use had released unto the disseisor, and his warranty had attached upon cestui 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 cestui que use in tail made an assurance by fine and recovery and by warranty which descended upon his issue, two of the judges hold that the use is not extinct; and Bryan and Hussey, that held the contrary, said that the law is altered by the new statute; whereby they admit that by the common law a 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 E. IV. 7. it is said, "if Br. Feoff. al cestui que use be attainted, quere who shall have the land; for the lord shall not have it ": so as there the use doth not imitate the possession. And the reason is not because the lord hath a tenant in by title, for that is nothing to the subpoena, but because the feoffor's intent was never to advance the lord, but only his own blood; and therefore the quere 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 feoffor's will, or in pios usus? So favourably they took the intent in those days, as you may find in 37 H. VI., that if a man had appointed his use to one for life, the remainder in fee to another, and cestui que use for life had refused; because the intent appeared not to advance the heir at all, nor him in remainder presently, therefore the feoffee should make 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 imitation, there be four points wherein we will examine the nature of uses: the raising of them; the preserving of them; the transferring of them; the extinguishing of them. And in all these four you shall see apparently that uses stand upon their own reasons, utterly differing from cases of possession.

1. 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 parol, 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

Fitz. Subp. 1.

Br. Con

science, 5.

Sherrington v. Strotton, Plowd. 298.

309.

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 inforce 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 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 all the law a case, where a man shall take by 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 delivered to one man to the use of
another: neither do I say that he must be party to the livery
or deed, for he in the remainder may take though he be party
to neither: 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.
of them.

Now as to the preserving

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. 14. 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 whether the second feoffee had notice or no. So, as it is put in 14 H. VIII. 8., if a sale be made in a market overt upon good

I understand "the party trusted," as a translation of cestui que in trust, as we have elsewhere "estated," for "in of an estate." Harl. MS. 6688. altogether omits the reason given in the lines above, and has here "the party's trust be declared and accepted" which I think must be a conjectural and erroneous correction.

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 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.

use.

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

Br. Feoffm.

al uses, 10.

Dyer, 76. to

13 a.

1 As Mr. Rowe has pointed out, the cases do not fully bear Bacon out.