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unless he had been in actual receipt of the rent for the prescribed period. The Chief Justice founds his judgment in that case upon the very authorities which have been brought before us to-day. He cites the 235th section of Littleton: "And so it is, if a man grant by his deed a yearly rent issuing out of his land to another, &c., if the grantor thereafter pay to the grantee a penny or a halfpenny in name of seisin of the rent, then, if after the next day of payment the rent be denied, the grantee may have an assise, or else not, &c." Lord Coke, exemplifying his own doctrine that there is often virtue in an etcetera, explains what that means, thus: "By this &c. is implied that the grant and delivery of the deed is no seisin of the rent; and that a seisin in law, which the grantee hath by the grant, is not sufficient to maintain an assise or any other real action, but there must be an actual seisin." Mr. Williams admits that the actual possession spoken of in the Reform Act must be such an actual possession as would have entitled the party to maintain an assise. Then we find from the Anonymous Case in Cro. Eliz. 46, -which certainly derives additional authority from being cited by Chief Baron Comyns, that, "by the Statute 27 H. 8, c. 10, cestui que use is immediately seised and in actual possession, and therefore shall have assise or trespass against a stranger before entry." That therefore brings this case precisely within the ground upon which Murray, app., Thorniley, resp., was decided, and establishes the distinction between the grant of a rent-charge at common law, and a grant under the Statute of Uses. Upon these grounds I am of opinion that the revising barrister took an erroneous view of this case, and consequently that his decision must be reversed.

Williams asked for costs.

ERLE, C. J. Where the decision is in favour of the appellant, no costs are allowed. But, where the decision is in favour of the respondent, the general rule is to give him his costs, - the court reserving to itself the right to modify the rule as the circumstances of each case may seem to them to render it expedient.1 Decision reversed.

1 See Hadfield's Case, L. R. 8 C. P. 306. NOTE. Scintilla Juris. "The mode of operation of the Statute with future uses, when limited by way of contingent remainders or as springing or shifting uses, formerly caused much perplexity and difference of opinion. The Statute seemed to exhaust the seisin in serving the prior vested uses, so as to leave none to serve such future uses as and when they should arise. To meet this difficulty it was conceived that there remained in the grantees to uses a possibility of seisin, becoming an actual seisin when the executory uses required it. This was the celebrated doctrine of the scintilla juris, as this possibility of seisin was called. The only practical bearing of this doctrine lay in the suggestion that the scintilla juris might be dealt with in a manner to risk the safety of the dependent uses.

"After much abstruse speculation concerning the nature of the statutory process, the result generally accepted seems to have been that it immediately converted uses of all admissible kinds into legal limitations in a manner quite beyond the power or control of the grantees to uses, and that the latter were merely formal instruments for carrying the legal title to the uses.' Leake, Dig. Land Law, 116.

See Sugd. Pow. (7th ed.) c. 1, § 3.

SECTION VII.

USES NOT EXECUTED BY THE STATUTE.

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A MAN makes a feoffment in fee to his own use for the term of his life, and that after his decease J. N. shall take the profits; this makes a use in J. N. Otherwise if he says that after his death, the feoffees shall take the profits and deliver them to J. N., this does not make a use in J. N., for he never has them unless by the hands of the feoffees.

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JANE TYRREL, widow, for the sum of four hundred pounds paid by G. Tyrrel her son and heir apparent, by indenture enrolled in chancery in the 4th year of E. 6, bargained, sold, gave, granted, covenanted, and concluded to the said G. Tyrrel all her manors, lands, tenements, &c. to have and to hold the said &c. to the said G. T. and his heirs for ever, to the use of the said Jane during her life, without impeachment of waste; and immediately after her decease to the use of the said G. T. and the heirs of his body lawfully begotten, and in default of such issue, to the use of the heirs of the said Jane for ever. Quære well whether the limitation of those uses upon the habendum are not void and impertinent, because an use cannot be springing, drawn, or reserved out of an use, as appears prima facie? And here it ought to be first an use transferred to the vendee before that any freehold or inheritance in the land can be vested in him by the enrolment, &c. And this case has been doubted in the Common Pleas before now: ideo quære legem. But all the judges of C. B. and SAUNDERS, Chief Justice, thought that the limitation of uses above is void, &c. for suppose the Statute of Enrolments [cap. 16] had never been made, but only the Statute of Uses, [cap. 10] in 27 H. 8, then the case above could not be, because an use cannot be engendered of an use, &c. See M. 10 & 11 Eliz. † fol.

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BACON, USES, 42. The second word material is the word seised: this 3 th use

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SAMMES'S CASE.

COURT OF WARDS. 1609.

[Reported 13 Co. 54.]

JOHN SAMMES being seised of Grany Mead by copy of court roll of the manor of Tollesham the Great, of which Sir Thomas Beckingham was lord, and held the same of the king by knight's service in capite; Sir Thomas by his deed indented, dated the 22d of December, in the first year of King James, made between him of the one part, and the said John Sammes and George Sammes son and heir apparent of the said John of the other part, did bargain, sell, grant, enfeoff, release, and confirm unto the said John Sammes the said mead called Grany Mead, to have and to hold the said mead unto the said John Sammes and George Sammes, and their heirs and assigns, to the only use and behoof of the said John Sammes and George Sammes, their heirs and assigns forever: and by the same indenture Sir Thomas did covenant with John and George, to make further assurance to John and George, and their heirs, to the use of them and their heirs, and livery and seisin was made and delivered, according to the true intent of the said indentures, of the within mentioned premises to the uses within mentioned.

John Sammes the father dieth, George Sammes his son and heir being within age, the question was, Whether George Sammes should be in ward to the king or no? And in this case three points were resolved:

1. Forasmuch as George was not named in the premises, he cannot take by the habendum; and the livery made according to the intent Cou

of the indenture, doth not give any thing to George, because the inden-ot dériveux ture as to him is void: but although the feoffment be good only to John

and his heirs, yet the use limited to the use of John and George, and their heirs, is good.

2. If the estate had been conveyed to John and his heirs by the release and confirmation, as it well may be to a tenant by copy of courtroll, the use limited to them is good: for upon a release which creates an estate, a use may be limited, or a rent reserved without question; but upon a release or confirmation, which enures by way of mitter leases droit, an use cannot be limited, or a rent reserved.

3. But the third was of greater doubt, if in this case the father and son were joint-tenants, or tenants in common? For it was objected, when the father is only enfeoffed to the only use of him and his son, and their

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