Sherrington v. Strotton, Plowd. 298. 309.

liberation 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 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.

1

1 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.

So much for the raising of uses. Now as to the preserving of them.

Br. Collusion and covin, 4.

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 feoffinent 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 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 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

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.

Br. Feoffm. al uses, 10. Dyer, 7 b. to 13 a.

fraudem legis; and therefore wheresoever it findeth consideration given, it dischargeth the covin.1 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.

There is no case

3. For the transferring of uses. in law where an action may be transferred; but the subpoena 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 rea- son, 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 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 feoff

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

ment 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 Plowd. 346. 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 feoffee1 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 subpoena 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,

1 i. e. the original feoffee to uses.

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 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.

Br. Feoffm.

4. Now for determining and extinguishing of uses, I put the case of collateral warranty before. Add to that, the notable case 14 H. VIII. 4. Halfal uses, pl. 10. penny'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

1 Something seems wrong here, though all the editions and MSS. substantially agree. Either some intermediate cases are omitted, or, as I