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premises mentioned in this declaration of ejectment, or to some part thereof; and I, being sued in this action as a casual ejector, and having no claim or title to the same, do advise you to appear next Hilary Term in his Majesty's Court of King's Bench at Westminster, by some attorney of that court, and then and there, by a rule to be made of the same court, to cause yourself to be made defendant in my stead; otherwise I shall suffer judgment to be entered against me, and you will be turned out of possession.
Your loving friend,
WILLIAM STILES. 5th January, 1756.
Sect. 3. The Rule of Court. Hilary Term, in the twenty-ninth Year of King George the Second. Berks, 1 It is ordered by the court, by the assent of both parties,
to wit, and their attornies, that George Saunders, Gentleman, may be made defendant, in the place of the now defendant, William Stiles, and shall immediately appear to the plaintiff's action, and shall receive a declaration in a plea of trespass and ejectment of the tenements in question, and shall immediately plead thereto Not Guilty: and, upon the trial of the issue, shall confess lease, entry, and ouster, and insist upon his title only. And if upon the trial of the issue, the said George do not confess lease, entry, and ouster, and by reason thereof the plaintiff cannot prosecute his writ, then the taxation of costs upon such non pros. shall cease, and the said George shall pay such costs to the plaintiff, as by the Court of our Lord the King here shall be taxed and adjudged, for such bis default in non-performance of this rule ; and judgment shall be entered against the said William Stiles, now the casual ejector, by default. And it is further ordered, that if upon the trial of the said issue a verdict shall be given for the defendant, or if the plaintiff shall not prosecute his writ upon any other cause
the lessor of the plaintiff shall pay costs, if the plaintiff himself doth not pay them.
By the Court. Martin, for the plaintiff, Newman, for the defendant.
Note. — The above form of beginning an action of ejectment is taken from the Appendix to the Third Volume of Blackstone's Commentaries. The later proceedings are omitted.
LIT. $$ 73, 74, 78. Tenant by copy of court roll is, as if a man be seised of a manor within which manor there is a custom, which hath been used time out of mind of man, that certain tenants within the same manor have used to have lands and tenements, to hold to thein and their heirs in fee simple, or fee tail, or for term of life, &c. at the will of the lord according to the custom of the same manor.
And such a tenant may not alien his land by deed, for then the lord may enter as into a thing forfeited unto him. But if he will alien his land to another, it behooveth him after the custom to surrender the tenements in court, &c. into the hands of the lord, to the use of him that shall have the estate, in this form, or to this effect.
A. of B. cometh into this court, and surrendereth in the same court a mease, &c. into the hands of the lord (in manus domini), to the use of C. of D. and his heirs, or the heirs issuing of his body, or for term of life, &c. And upon that cometh the aforesaid C. of D. and taketh of the lord in the same court the aforesaid mease, &c. To have and to hold to him and to his heirs, or to him and to his heirs issuing of his body, or to him for term of life, at the lord's will, after the custom of the manor, to do and yield therefor the rents, services and customs thereof before due and accustomed, &c. and giveth the lord for a fine, &c. and maketh unto the lord his fealty, &c.
Tenants by the verge are in the same nature as tenants by copy of court roll. But the reason why they be called tenants by the verge, is, for that when they will surrender their tenements into the hands of their lord to the use of another, they shall have a little rod (by the custom) in their hand, the which they shall deliver to the steward or to the bailiff according to the custom of the manor, and he which shall have the land shall take up the same land in court, and his taking shall be entered upon the roll, and the steward or bailiff according to the custom shall deliver to him that taketh the land the same rod, or another rod, in the name of seisin ; and for this cause they are called tenants by the verge, but they have no other evidence but by copy of court roll.
USES AND TRUSTS.
USES BEFORE st. 27 HEN. VIII. C. 10.
Keilw. 42, PL. 7 (1502). Vavasour, J., said that the subpæna commenced in the time of Edward III. ; but this was always against the feoffee upon confidence himself, for against his heir the subpæna was never allowed until the time of Henry VI., and in this point the law was changed by Fortescue, C. J.:
St. 1 Rich. III. (1483), c. 1. Forasmuch as by privy and unknown feoffments, great unsurety, trouble, costs, and grievous vexations daily grow among the King's subjects, insomuch that no man that buyeth any lands, tenements, rents, services, or other hereditaments, nor women that have jointures or dowers in any lands, tenements, or other hereditaments, nor men's last wills to be performed, nor leases for term of life, or of years, nor annụities granted to any person or persons for their services for term of their lives or otherwise be in perfect surets, nor without great trouble and doubt of the same, because of the said privy and unknown feoffments : (2) For remedy whereof, be it ordained, established, and enacted, by the advice of the Lords Spiritual and Tem. poral, and by the Commons in this present Parliament assembled, and by authority of the same, that every estate feoffment, gift, release, grant, leases and confirmations of lands, tenements, rents, services, or hereditaments, made or had, or hereafter to be made or had by any person
i On Eqnity Jurisdiction in general, see Langdell, Eq. Pl. SS 36-45; Digby, Real Prop. (1st ed.) 244-247; (2d ed.) 285-287 ; (3d ed.) 276-279 ; Haynes, Outlines of Eq. 6–20.
2 On Uses before the Statute, see also Digby, Real Prop. c. 6; Leake, Digest Land Law, 99-102.
8 “The experience and practice of uses were not ancient, and my reasons why I think so, are these four : First, I cannot find in any evidence before King R. II, his time, the clause ad opus et usum, and the very Latin of it savoureth of that time ; for in ancient time, about Edw. I. and before, when lawyers were part civilians, the Latin phrase was much purer, as you may see partly by Bracton's writing, and by ancient patents and deeds, and chiefly by the register of writs, which is good Latin, whereas this phrase ad opus et usum, and the words ad opus, is a barbarous phrase, and like enough to be the penning of some chaplain that was not much past his grammar, where he had found opus and usus coupled together, and that they did govern an ablative case ; as they do indeed since this Statute, for they take away the land and put them into a conveyance." Bacon, Uses, 22.
or persons being of full age, of whole mind, at large, and not in duress, to any person or persons; and all recoveries and executions had or made, shall be good and effectual to him to whom it is so made, had or given, and to all other to his use, (3) against the seller, feoffor, donor, or grantor thereof, (4) and against the sellers, feoffors, donors, or grantors, his or their heirs, claiming the same only as heir or heirs to the same sellers, feoffors, donors, or grantors, and every of them, (5) and against all other having or claiming any title or interest in the same, only to the use of the same seller, feoffor, donor or grantor, sellers, feoffors, donors or grantors, or his or their said heirs at the time of the bargain, sale, covenant, gift or grant made, (6) saving to every person or persons such right, title, action or interest, by reason of gift in tail thereof made, as they ought to have had, if this Act had not been made.
COMMON PLEAS. 1522.
[Reported Year Book 14 Hen. VIII., 4, pl. 5.) ONE J. S. sued a replevin for his cattle tortiously taken.
The defendant avowed for that J. D. and J. B. were seised of a ploughland of land in their demesne as of fee to the use of R. N. by the feoffment F. R., &c., and being so seised granted an annual rent out of the said ploughland to A. by the name of Alice, wife of R. to hold during the term of her life with a clause of distress, and afterwards Alice married the defendant, before the taking, and for so much in arrear he avowed the taking, &c.
To which the plaintiff said that J. D. and J. B. were seised to the use of W. N. and being so seised granted the said rent to the said A. as alleged, she then having notice of the use, that the said J. D. and J. B. enfeoffed one Halpenny in fee whereby he was seised, and being so seised, and Alice also being seised of the rent, the said W. N. by his deed released all his right to the said Halpenny to him and his heirs forever absque hoc that J. D. and J. B. were seised to the use of R. N. as the avowant has alleged, &c., and prays judgment if this avowry, &c.
Fitz-HERBERT, J. First it is to be seen to whose use the grantee shall be seised. I think he shall be seised to the first use, notwithstanding he had no notice, for uses are at common law and not by the statutes of Richard, and a use is but a trust and confidence which feoffor puts in his feoffee according to the estate which was at common law, for if a woman seised of land at common law will upon a communication of marriage enfeoff one, if he does not perform the trust, the law
i Only so much of the opinion of the court as relates to this point is given. The translation is taken from Professor Ames's pamphlet on Uses and Trusts before the St. of 27 Hen. VIII.
gives her a remedy to recover her land back by a writ of entry causa matrimonii praelocuti. And so if I will that my executor sell my land which is devisable, if he will not, but takes the profits to his own use, the heir may enter upon him for the non-performance of his trust as was adjudged in 38 Lib. Ass. p. 3. And then the trust is a necessity, for a dead man cannot perform his own will. But, Sir, in this present case this feoffment in trust was only a pleasure and not a necessity, but still he is as much bound in conscience to perform his will as the executor since he took the estate to do it, and if he deceives him no one will say that he does well. At the common law the feoffor bad no remedy except by subpæna, but now by the statute he may enter and make a feoffment according to his will, if his feoffee will not do his will. But how a use shall be changed depends upon the common law and upon the estate of the feoffee, for if I enfeoff B. to hold to him his heirs and assigns, my trust and confidence is in him, his heirs, and assigns; and this is easily shown, for the heirs will be bound to perform the feoffor's will as much as the father, and the second feoffee as much as the first, if there is no consideration, and so it is if the feoffee suffer a recovery without a consideration. For it shall be intended since he parted with the land without consideration that he parted with it in the most proper way, i. e. to hold it as he held. For when an act rests in intendment and is indifferent, the law makes the most favorable presumption, for if I see a priest and a woman together suspiciously, still as long as there is doubt whether he is doing good or evil the former is to be presumed, and so here. And, Sir, the rent is, in a manner, part of the land, and here the trust was in the land out of which the rent was granted, and this grant is without consideration, and it may be granted to the first use, wherefore it shall be so intended. And although the rent was not in esse and he had no use in it before, still he may have the use. For I take it clearly if one is seised of a seigniory in gross and grants it to bis use, if the land escheats, that the feoffee shall nevertheless be seised to the first use for it comes in lieu of the seigniory: and yet he had no use in the land before ; and so one may grant for term of life and express the use.
BROKE, J. to the same intent. Sir, as the feoffor puts confidence and trust, so shall be his use, and the use is in the feoffor in conscience, although the feoffee has the land by the common law. And so it is not like an estate upon condition at common law, for the whole inheritance is in the feoffee, and if he dies without heir, the feoffor cannot enter; but if he gives the land in tail and the donee dies without heir, he may enter, and every dealing with the land should be according to the wish of the feoffor. For if the feoffee acts otherwise, he is chargeable in conscience, and so is the heir of the feoffee ; and the feoffee of the feoffee if there is no consideration ; and so is he who comes in by fine and false recovery. Scilicet, those recoveries in a writ of entry in the post. For in all these cases it is the act of the feoffee and being without consideration the law intends that it was according to the first use; and,