agreed and assented, that all they that be possessed by feoffment or by other manner to the use of religious people, or other spiritual persons, of lands and tenements, fees, advowsons, or any manner other possessions whatsoever, to amortise them, and whereof the said religious and spiritual persons take the profits, that betwixt this and the feast of St. Michael next coming they shall cause them to be amortised by the licence of the king and of the lords, or else that they shall sell and aliene them to some other use, between this and the said feast, upon pain to be forfeited to the king and to the lords, according to the form of the said statute of religious, as lands purchased by religious people; and that from henceforth no such purchase be made, so that such religious or other spiritual persons take thereof the profits, as afore is said, upon pain aforesaid; and that the same statute extend and be observed of all lands, tenements, fees, advowsons, and other possessions purchased or to be purchased to the use of guilds or fraternities. And moreover it is assented, because mayors, bailiffs, and commons, of cities, boroughs, and other towns which have a perpetual commonalty, and others which have offices perpetual, be as perpetual as people of religion, that from henceforth they shall not purchase to them and to their commons or office upon pain contained in the said statute De Religiosis. And whereas others be possessed, or hereafter shall purchase to their use, and they thereof take the profits, it shall be done in like manner as is afore said of people of religion.

2. The following three cases are taken from the volumes of Calendars of Proceedings in Chancery above referred to. The first is interesting, as being the earliest recorded case of an application to the Chancellor to enforce a feoffment to uses. The points which the cases illustrate have already been sufficiently dwelt upon.

(1) Proceedings in Chancery in the reign of Henry V. William Dodd v. John Browning and another. (Calendar of Proceedings in Chancery, i. p. xiii.)

To my worthy and gracious Lord Bisshope of Wynchester, Chanceller of Yngelond.

Beseching mekely youre povre bedeman William Dodde, charyoteer, wheche passed over the see in service with our liege

lord, and was oon of his charioterys in his viages; and of hyze treste ffefed in my land John Brownyng and John . . . of Chekewell1 with my wyfe, wheche John, and John afterwards azenste my wyll and wetynge pot my land to ferme, and delyvered my mevable good the valewe of xx marke where hem leste, and thus they kepe my dede and the indenture with my mevable good unto myne undoynge, lasse than y have youre excylent and gracious helpe and lordship; besechinge yow at reverence of that worthy Prince ys sowle youre fader, whoos bedeman y am ever, that ye woll sende for John, and John afforseide, that the cause may be knowe why they withholde my good to myne undoynge; also wheche am undo for brusinge in service of our liege lorde, and in service of that worthy Princesse my lady of Clarence, and ever wolde yef my lemys myght serve worthy prince sone. At reverence of God and of that pereles Princes his moder take this matter at hert of almes and charite.

(2) William of Arundel, Esq. v. Sir Maurice Berkeley, Knight, and others. (Calendar, i. p. xxxv. Temp. Henry VI.)

Besechith mekely William of Arundell esquyer that for as moche as John, somme tyme Lord of Arundell, and of Mautravers his fader, wham God assoile, enfeoffed Robert Lord Ponyngges and William Ryman yet on lyve, and dyverse other persons nowe dede, yn his manors of Hyneford, Spertegrove, Stoketristre, Cokelyngton, Bayford, and Lyghe yn the counte of Somerset wyth the officis of the kepyng of the forest of Selewode yn the same counte, to the entent that the said feoffees should performe his wille, whiche he would afterward declare touchynge the seid manors and officis. And afterward by his dede ensealed wyth the seale of his armys, declarid his seid wille touchynge the seid manors and officis forseid, yn soche forme as the seid nowe besecher owyth to have the forseid manors and officis to hym and to the heirs of his body comyng; as by the seid dede of declaracion of his wille hit pleynly may appere. And afterward the seid late Lord of Arundell dyed; after whos deth John late Erle of Arundell his sone and heir, the seid feoffment notwythstondyng, entred yn the seid manors and occupyed the seid office, enclaymyng the same manors and office as sone and

1 Feoffees to uses.

heir; and than of the same manors and office enfeoffed Mores Berkeley knyght, John Hody, William Sydeney, John Lylye and John Grendon clerk yn fee, to the entent to performe his wille, the whiche he wolde afterward declare, touching the seid manors and office. And afterward by his lettur wreten wyth his oune hand at Rone, yn Seynt Martyn's day, the yere of the reigne of oure soverayn Lord the Kyng that nowe is the xiii, dyrecte unto Alianore countesse of Arundell his moder, and also lady and moder to the seid besecher, declared openly that hit was his wylle', that a state shoulde be made to the seid besecher his brother, yn all the said manors and office, according to the wille of his seid fader, yn the most surest wyse; which writyng nought withstondyng, and that the seid besecher hath ofte tymys requyred the forsaid Morys and his seid coofeoffees to have made a state of the forseid manors and office to the same besecher, and to his heirs of his body begete, accordyng to the willes, as well of his seid lord and fader, as of his forseid lord and brother; whiche the seid Mores and his seid coofeoffees have all weye refusid and yet refuse to doo, to the lykly disheritaunce of the seid besecher, but yf he be remedyet by youre gracious lordship, hit lyke youre seid Lordship to sende by a serjaunt of armes for the seid Moris, and his said cofeoffees, now beyng yn London, to appere afore you yn the Kyngis Chauncery, at a day by yowe to be lymeted, and than there to be examynyd of all the matters forsaid, and thereuppon to compelle tham to make a sufficiant and suere astat of all the seid manors and office to the said besecher, and to the heirs of his body comyng, for the love of God, and yn the wey of charite.

(3) Examination by the Bishop of Bath and Wells, Chancellor of England, of two persons to whom one Robert Crody had made a feoffment by parol, on his death-bed, in trust for his wife for life, with remainder to his daughter in tail. (Cal. vol. i. p. xliii.)

Be it hade in mynde that the x. day of August the reigne of Kynge Henry the syxt after the Conquest xvite, John Gover

1 Notice the informal character of these early wills. In one case it is a deed of declaration of trust, in the other a letter that is considered to operate as a will. See below, Chap. VIII.

of Wyntenayse Herteley in the shire of Suthampton, husbondman, and Thomas Attemore of the same toune, husbondman, apperyng afore the right reverent Fader in Gode the Bisshop of Bath and Welles Chaunceller of Ingelond, in his manoir of Dogmersfeld, and ther examined severally uppon a certeîn feffement made to thayme by one Robert Crody of certeyn londes and tenements in the toune afore especified, sayde and confessyd ther expressely by there othes upon a boke howe that the saide Robert, the Wednesday nyxt after the fest of Seint Michell, the yere of the reigne of Kynge Henry the fyfte after the Conquest, viiite, in the evenyng, leyng in an house of his awen atte the saide toune, so sore seke in his bede that for his sekenesse he myght noght be remeved, in to so moche that in the same nyght followyng he died, callede to hym the forsaide John and Thomas, sayng to thaym in this maner- -'Sires ye be the men in whome I have grete trust afore moche other persones, and in especial that suche will als I shall declare you atte this tyme, for my full and last will, shall throgh your gude help by oure Lordes mercy be perfourmed; Wherefore I late you have full knowlich, that this house which I ly in, and all myn other londes and tenements in this toune, I yeve and graunte to you, to holde to you your heires and your assignes, to this entent, that after myn deces, ze shall make estate of the same house, londes and tenements to Alice my wyfe [for] terme of hir lyve, so that after hir deth thay remayne to Margarete my doghter, and to the heires of hir body loufully becomyng, and if sche die withoute heir of hir body comyng, that then thay remayne to my right heires for evermore. And to thentent that this my last will mowe be performed by you, als my trust is that it shall be, her atte this tyme I delyver you possession of this house in the name of all my londes and tenements afore especified', als holy and entierly als they wer ever myn atte any tyme.' By force wherof the forseide John and Thomas wer possessyd of the house, landes and tenements aforseide, in thaire demesne als of fee, and of the same house, londes and tenements made estate to the saide Alice, after the deth of hir saide husbond, accordyng to the entent and will afore declared.

(4) The following case is interesting, as showing an attempt made to obtain a recognition of uses as an integral part of the

A perfect livery of seisin. See above, Chap. III. § 12 (2).

common law at the hands of the Common Law Courts, and the reasons why it was unsuccessful.

YEAR BOOK, 4 EDWARD IV, 8. 9.

Translation.

In a writ of trespass quare vi et armis clausum fregit1, etc., et arbores succidit, etc., et herbas conculcavit et consumpsit, etc. Catesby. The plaintiff ought not to have his action, for we say that long before the supposed trespass one J. B. was seised in fee of certain land and died so seised, which then descended to the defendant as heir-at-law of the said J. B., being the place where the trespass is supposed to have been committed, and the defendant being seised in fee of the said lands enfeoffed the plaintiff in fee, to the use of the defendant and upon confidence, and then the defendant by sufferance of the plaintiff and at his will occupied the land and cut the trees within the said land and depastured the herbage, which are the trespasses complained of in the action.

Jenney. That is no plea, for that is no certain matter-the sufferance of the plaintiff and that the defendant occupied by the will of the plaintiff for such sufferance and will cannot be tried, for the intent of a man is uncertain, and a man should plead such matter as is or may be known to the jury, if the issue should be taken thereon *. And this cannot be upon the alleged sufferance or will of the plaintiff that the defendant should occupy, etc.; and therefore in such a case to make a good issue or matter traversable, he should plead the lease made by the plaintiff to the defendant to hold at his will, which is matter traversable, and that may be tried.

1 This was the regular form of a writ of trespass (to lands) vi et armis, as opposed to a writ of trespass on the case.' The latter was an extension (by virtue of statute West. II, c. 24) of the writ of trespass, which was originally applicable only to violent injuries, to all cases of damage caused by misfeazance (commission of wrongful acts), or even by nonfeazance (omission of acts which a person is bound to do).

2 Counsel for defendant.

Counsel for plaintiff.

The Chancellor as an ecclesiastic could look into a man's heart and conscience and see what his intent was; a jury could only pronounce upon matter ‘in pais,' open notorious facts known to all the neighbours. See above, p. 288.