method open to the remainderman though it would only bar and bind his own issue.

In the history of the defeat of strict entails, fines, though they developed into a system of great complexity and expense1, are therefore of secondary importance. Their efficiency as devices for barring entails was unintentionally effected by the Statute of 1489, and intentionally confirmed by the Act of 1540. From that time Fines and Recoveries, both fictitious proceedings countenanced by the judges for the purpose of evading the Statute de Donis, grew in complexity, losing in their growth any semblance of reality they had once possessed, till they were swept away in 1833 by the "Act to abolish Fines and Recoveries?," which substituted for them a simple deed enrolled. Their only merit was that the judges by their use had been enabled to evade in the interests of the Community a statute passed in the interests of a Class.

1 The Real Property Commissioners give an instance where the amount

payable on levying a fine was £4000. 2 3 and 4 Will. IV. c. 74.

CHAPTER V.

USES.

As the ingenuity of ecclesiastics and their advisers originated the system of common recoveries, by which ultimately the strictness of entailed estates was broken down, so the conception of Uses, by which the prohibition against Wills of Land was evaded and the secrecy of land-transfer was ensured, was due to clerical endeavours to evade the laws of mortmain. If uses had been common or well-known at the passing of the Statute De Viris Religiosis, they would have been alluded to in some more specific way than "alio quovis modo arte vel ingenio." The ingenuity however which found that common recoveries were not prohibited by the Act discovered also that lands might be conveyed to a third person, or held by the donor himself, to the use of some religious house, or in trust to pay the proceeds to religious purposes with the result of obeying the letter and evading the spirit of the Statute. But just as this use of common recoveries had been prohibited by the Statute of Westminster the Second, so also the evasion of the Statute of Mortmain by means of uses was prohibited by a statute of 1391', which recited that "of late by subtile imagination and by art and engine some religious persons' had evaded the Statute, whereby "men were possessed by feoffment or by other manner to the use of religious people of

1 15 Rich. II. c. 5.

2 This word is oeps i.e. ad opus et usum. It first appears in a Statute of 1383, "Si ascun alien occupie ascun

2

benefice, soit il a son oeps propre, ou al oeps d'autri. 7 Rich. II. c. 12. Digby, 3rd ed. p. 274 note.

EARLY RESTRAINTS ON USES.

81

lands......to amortise1 them, whereof the said religious persons take the profits," and enacted that such lands should only be so alienated by the license of the king or lords or else sold "to some other use" under pain of forfeiture and that "from henceforth no such purchase be made so that such religious and other spiritual persons take thereof the profits." The Statute contains similar provisions as to lay corporations: "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 religious."

But though religious alienations by means of uses were thus restrained, the device had been viewed with favour by the laity, and several statutes were passed to meet the different methods in which uses were employed to evade common law liabilities. Thus in 1376 a statute3 recites that divers people having incurred debts "do give their tenements and chattels to their friends by collusion to have the profits thereof at their will, and after" take sanctuary, "and there do live a great time till the creditors are forced to take a small parcel of their debts and release the remnant," and it is enacted that such gifts if made by collusion shall not protect the goods and chattels from the creditors. In the following year (1377) another statute attacks the practice by which persons unjustly in possession resist the true owners by making feoffments of their lands to Lords and great men, against whom the true owners dare not proceed, and declares that such feoffments made by fraud and maintenance shall be void, and that the persons disseised shall bring actions within a year against those who take the profits of the disseised lands. After the prohibition of uses ecclesiastical, further restraining statutes show that the laity fully appreciated the advantages of the device. Thus a Statute of 1402 extends the remedies of the Statute of 1377 by allowing

1 i.e. alienate in mortmain.

2 This has been interpreted as а legislative sanction of uses. I think it only implies the devotion of the land to secular purposes, without

necessarily any double interest.

3 50 Edw. III. c. 6.

4 1 Rich. II. c. 9.

5 To hold to their (the wrongful possessor's) use.

the person disseised to sue the beneficial owner in his lifetime', and a Statute of 1433 extends this advantage to all writs grounded upon Novel Disseisin, as well as the Assize of Novel Disseisin itself". A Statute of 1485 recites that persons claiming under entails are hindered by feoffments made to persons unknown "to the intent that the demandants should not know against whom they shall take their actions," and enacts that the demandant shall have his action against "the Pernors' of the profits of the said lands," and that actions shall "proceed against the said Pernors as if they were tenants indeed or feoffees to their use of the freehold of the said lands." A Statute of 1488 attacks the injury to lords who lost their wardships by feoffments to uses, and provides that if the beneficial owner dies without any will concerning his lands, the lord shall have his wardship or relief in spite of the feoffment to uses5. And a Statute of 1503 recites that whereas creditors were defrauded of their executions, lords of their reliefs and heriots, and lords of villeins of the purchases of their villeins, by reason that the debtors, tenants and villeins "cause by fine, feoffment, recovery or otherwise divers persons to be seised of the said lands, only to their use, they taking the profits of the same," it provides that in each case the cestui-que-use shall be directly liable. All these statutes however only gave relief to purchasers and others, who came in by act of the law, but were defeated by "special covinous attempts of the party"".

There remained the case of those who "came in by act of the party," but were defeated by a prior act of that party in feoffing to uses. A Statute of 1483 attempted comprehensively to deal with this question. It recited that "by privy and unknown feoffments great unsurety...grew among the king's subjects insomuch that no man that buyeth any lands,...nor women that have jointures nor dowers in any lands...nor men's

last wills to be performed...nor leases for terms of years or of life, nor annuities granted for life be in surety because of the said privy and unknown feoffments," and enacted that all feoffments and grants made and all acts done by a competent cestui-que-use should avail to the grantees against such cestuique-use and his heirs, and all persons claiming an interest in the land only to the use of the said cestui-que-use. Yet, as Coke says, "So mischievous and sinister is the invention and contrivance of uses that they also over-reached the policy and provisions of the makers of this Act also...so that danger, trouble, costs and great vexation remained to the realm by these covinous and fraudulent uses, notwithstanding the said statute1."

An Act of 1483 of a somewhat personal character is of interest because, according to Bacon, it is "the precedent upon which the Statute of Uses was drawn, the very mould whereof that statute was made?" It recites that a number of feoffments to uses have been made to Richard before he was king3, and enacts that where he was one of several feoffees to uses, all his interest shall vest in his co-feoffees, and that where he is sole feoffee, "all possession, right, title or interest in him" by reason of such feoffment to uses shall vest in such person or persons and their heirs to whose use he is so thereof seised :—a clause almost exactly similar in purport to the important provision in the Statute of Uses.

In face of this long series of statutes restraining alienations to uses, and preventing them from being used for purposes of fraud, or from injuring the rights of others, it is difficult to understand Bacon's assertion"; "that an Use had never any force at all at the common law, but by statute law"; even though he admits that "there was never any statute made directly for the benefit of cestui-que-use, but always for the

1 Chudleigh's case, 1 Co. Rep. 123, a.

2 1 Rich. III. c. 5, Reading, p. 417. 3 The King could not be feoffee to uses, having for this purpose no Conscience, and therefore, in company

with corporations and aliens, being incapable of being affected by the Chancellor. Blackstone, II. 332. Digby, 3rd ed. p. 283.

4 Reading, p. 411.