the common law of the land, to the great damage of such persons so vexed, and in subversion and impediment of the common law;" it was enacted, that no writ of subpoena should be granted until surety was found to satisfy the party so grieved and vexed, for his damages and expences, if the matter could not be made good which was contained in the bill.

TITLE XI.

USE.

CHAP. II.

Of the Nature and Quality of a Use before the Statute

Nature of a
Use.

Bac. Read. 5.

SECTION 1.

ORD Bacon, in his justly celebrated Reading on the statute of uses, observes, that it is the nature of all human science and knowledge, to proceed most safely by negative and exclusive, to what is affirmative and inclusive; and then says, "An use is no right, title, or interest in law," neither jus in re, nor ad rem; that is, neither an estate nor a demand; so that it is nothing for which a remedy is given by the course of the common law; being a species of 1 Rep. 140 a. property totally unknown to it, and for which it was therefore impossible that it should have made any provision.

2. Lord Bacon then proceeds to state affirmatively what a use is; and after giving the definition of a use from Plowden, namely, that a use is a trust re- 352. posed by any person in the terretenant, that he may suffer him to take the profits, and that he will perform his intent; he says, "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 that one of them is in court of law, the other in court of conscience."

3. The reason why the cestui que use had no property whatever by the common law, in the lands given to his use, was, because where lands were legally conveyed to one person to the use of another, the limi tation of the use was deemed absolutely void; as it only derived its effect from the declaration of the feoffor; whereas no legal right to a freehold estate in lands could be transferred without the ceremony of livery of seisin.

4. Thus, in a case mentioned in the year books, 4 Edw. 4. 3. where A. enfeoffed B. to the use of himself, the Judges observe, that in Chancery a man shall have his remedy according to conscience; but in the Common Pleas and the King's Bench, it was otherwise; for the feoffee should have the land, and the feoffor should have nothing against his own feoffment, though it was only upon confidence. It is said in Plowden, that by the common law cestui que use 349. could not enter upon the land; but if he had entered, the feoffees might have an action of trespass against him, and punish him; for the land as fully belonged to the feoffees, as if there had been no use of it; so that if the feoffees had ousted the cestui que use, or had sued him for taking the profits, he would not have any answer or defence at the common law, but

was driven to seek his remedy in a court of con

science.

5. Although the cestui que use was generally in possession of the lands, yet he was only considered by the courts of common law as tenant at sufferance; his title to the land was of so low and precarious a nature, that he could not even justify the seizing of cattle for trespass; and if he made a lease, the lessee might plead that he had nothing in the land.

6. When the Court of Chancery first assumed a jurisdiction in cases of uses, it went no farther than to compel payment of the rents and profits to the cestui que use. In process of time it proceeded another step, and established it as a rule, that the cestui que use had a right to call on the feoffees to uses for a conveyance of the estate to himself, or to any other person whom he chose to appoint; and also to compel him to defend the title to the land. Hence Lord Bacon has said, that a use consists of three parts: "The first, that the feoffee will suffer the feoffor to take the profits: The second, that the feoffee, upon request of the feoffor, or notice of his will, will execute the estates to the feoffor or his heirs, or any other by his direction: The third, that if the feoffee be disseised, and so the feoffer disturbed, the feoffee will re-enter, or bring an action to recontinue the possession. So that those three, pernancy of the profits, execution of estates, and defence of the land, are the three points of a trust or use."

7. As to the legal estate in the land, it was vested in the feoffee to uses, who performed the feudal duties, and who was in every respect deemed to be the tenant of the fee. It was liable to all his incumbrances; his widow was entitled to dower out of it; if he died leaving an infant heir, the lord, as guardian to the

infant, became entitled to the lands; and if he was attainted of treason or felony, they were forfeited.

Necessity of
Confidence

son.

1 Rep. 122 a. Plowd. 352. Poph. 71.

8. The right in conscience and equity to the rents and profits of land, which constituted a use, was not in the Perissuing out of the land, but was collateral thereto, and only annexed in privity to a particular estate in the land; that is, the use was not so attached to the land, that when once created, it must still have existed, into whose hands soever the lands passed; as in the case of a rent or right of common. But it was created by a confidence in the original feoffee, and continued to be annexed to the same estate, as long as that confidence subsisted, and the estate of the feoffees remained unaltered. So that to the execution of a use, two things were absolutely necessary; namely, confidence in the person, and privity of

estate.

9. Confidence in the person signified the trust reposed in the feoffees, which arose from the notice given them of the use, and of the persons who were intended to be benefited by the feoffment. This confidence was sometimes expressed, and sometimes implied. Thus, if a feoffee to uses enfeoffed another person of land, who had notice of the uses to which such land was liable, without any consideration; the new feoffee took it under an implied confidence, 1 Rep. 122 a. and was compellable to execute the use. For it was

resolved, that wherever there were feoffees to a use; their heirs and feoffees, and all who came into the land under them in the per, without consideration, provided they had notice of the use, should be seised to such use, and be compelled in Chancery to execute it. But if a feoffee to uses enfeoffed a stranger of the land for valuable consideration, who had no notice of the use; as there was no confidence in the person,