from the 22d of Eliz. to the year 1796, a period of two centuries and a half, it was never once contended that a cestui que trust of a leasehold estate was within either the act of Richard the Third, or the act of Henry the Seventh. And at this day there is no subject to which they can apply; trusts of leases as now enforced by equity, were not within the meaning of the statutes. Therefore, quacunque via data it should seem that the statute of Richard the Third is now of no force whatever.

It

may be observed, that, as at this period, a permanent interest can be gained in a leasehold estate, not subject to be defeated at the will of the freeholder, a modern act, similar to the statute of uses, would certainly receive a different construction.

Thus, in a

The

case in the reign of George the First, it appeared that by an act of parliament, commissioners of the land-tax were required to be seised of lands, tenements, or hereditaments, taxed for the value of 1001. per annum. question was whether a commissioner was duly qualified who was possessed merely of lands of 1001. per ann. for the remainder of a short term. For the negative, the counsel relied on the construction of the word seised in the statute of uses, but the court gave judgment unanimously that the commissioner had a sufficient qualification (1).

(1) Saunders v. Stevens, 1 Com 270.

SECT.

SECTION III.

OF SCINTILLA JURIS.

POWERS before the statute of uses were, as we have seen, mere directions to the trustee of the legal estate how to convey the estate, in truth, they were future uses to be designated by the person to whom the power was given these, when they arose, equity compelled the trustee to observe; and when conveyances under the statute of uses became established, it was still usual to reserve or limit such powers, as the exigencies of the case required: thus, powers to lease, to sell or exchange, to jointure, to charge with portions for younger children, or to revoke the settlement itself, soon became usual. In the reign of Elizabeth, however, it was insisted, that a man having once limited the fee simple in use, could not reserve a power by a future act to defeat the uses, and to raise new ones by force of the same assurance; for as the statute extinguished the use in the possession, it could no more be determined, and new estates created, without a new livery, than an estate in possession. But to this it was answered, that uses were not to be compared to the land itself, being mere accidents inherent to the possession, and built thereon by civil equity: and that the statute only imbued the possession with the quality, form, and condition of the use, but did not effect any alteration in the mode of limiting and raising present and future uses, which remained as before (m). And accord-'

(m) Anon. Mo. 608. The arguments in this case are deserving of the Student's attentive perusal. Mr. Powell has made a considerable part of them serve as an introduction to his work on Powers, although the case is not referred to.

ingly Manwood laid it down in Brent's case, that although the possession was executed to the use, yet the property and quality as abstracted from the possession, should not be drowned in the possession (n),

Powers after the statute still remained as mere rights of designation which bound the conscience of the trustee, and the estates to be created by force of them were still clearly future or contingent uses. But when a power was executed, as the person in whose favour the appointment was made became invested with the use, he instantly gained the legal estate by force of the statute. Now to attract the legal estate under the statute, it is essential that there should be a use in esse; whereas the uses to be raised under powers are not in esse, or defined, but until ascertained and limited under the power are merely tantamount to future or contingent uses. What operation the statute had upon contingent uses has been the subject of much judicial controversy, and demands our particular attention.

Perhaps no question ever occurred on which the Judges were so divided in opinion; some held that the estate vested in the first cestui que use, but subject to the contingent uses which should be executed out of his seisin as they arose; but this was soon over-ruled, and it was determined, That an use could not arise out of an use. It is observable, that most of the Judges who espoused the first opinion, also held that the contingent uses bound the land, and could not be barred by any act whatever; others held that the seisin to serve them was, to use their own expressions, in nubibus, in mare, in terra, or in custodia legis; they also seem to have been

(R) See 2 Leo. 16.

of

of opinion, that contingent uses could not be barred. Again some thought that the trustees were merely pipes through whom the estate was conveyed to the uses as they arose, while others thought that so much of the inheritance as was limited to the contingent uses remained actually vested in the feoffees till the uses arose. But according to some of the books, the majority of the Judges held, that there remained not an actual estate, but a possibility of seisin, or a scintilla juris in the feoffees or releasees to uses to serve the contingent uses as they arose. And this is expressed to be the law in the modern works written upon uses.

Before the statute of uses, the feoffees to uses were absolutely seised of the legal estate, and, therefore, if cestui que use levied a fine, or executed a feoffment, the entry of the feoffees was requisite, because the wrong was done to them, and if such feoffees were disseised before the statute, no use could be executed after the statute, except by their entry; for the statute only executed those uses to which any person was seised, which they who were disseised of course could not be. Thus, where Robert Dalamere made a feoffinent before the statute to several persons in fee, to the use of himself and his wife in special tail, remainder to himself in tail general, remainder to the use of Simon Dalamere his brother, in fee. Robert Dalamere before the statute infeoffed another in fee, who also before the statute in- e feoffed another in fee, and he made a feoffment in fee over to Simon Dalamere after the statute, who again infeoffed another. After the death of Robert Dalamere, and the first feoffees, the heir of the survivor of such feoffees entered to revive the use to the wife of Robert

€ 2

Robert Dalamere, and the entry was adjudged to be lawful (0).

This case at first view does not appear to be relevant to the point in discussion, but it certainly had considerable influence over future decisions; and cases where a clear seisin existed were confounded with this case where the statute could have no operation till a seisin was regained by entry. The doctrine of scintilla juris was first started in Brent's case, which arose six years after Dalamere's case (p). The case was, that a feoffment was made by Robert Brent after the statute to divers persons; to the use of himself, and Dorothy his wife, for their lives; remainder to the use of himself, and of any after taken wife, for their lives; remainder to B in fee. Afterwards B with the feoffees, by consent of the feoffor, joined in a feoffment to new feoffees, to the use of the feoffor, and Dorothy his wife, for their lives, remainder to A in tail, remainder to the feoffor himself; and he levied a fine with proclamations to the same uses. The wife died, the husband took a second wife, and died. The second wife, by the assent of the first feoffees, after five years had passed since the fine entered to raise the use to her under the first feoffment. The cause was compromised; but the case is very important, as it shows the difficulties under which the Judges laboured with respect to the construction of contingent uses. This case was first heard in the King's Bench, and in the next year it came on in the Cominon Pleas, when Mounson held, that the wife might enter of her own authority, and that she was well entitled. His opinion appears to have

(0) Dalamere v. Sermon, Plow. 346, 10 Elizabeth.

(p) Dyer 340 a, 2 Leon. 14, Dall.

112.

been,