The third part of the reports of severall excellent cases of law, argued and adjudged in the courts of law at Westminster in the time of the late Queen Elizabeth, from the first, to the five and thirtieth year of her reign collected by a learned professor of the law, William Leonard ... ; with alphabetical tables of the names of the cases, and of the matters contained in the book.

CCCXXXVIII. Trin. 32 Eliz. In the Common Pleas.

* 1.1A Man 30 Eliz. made a Feoffment in Fee to the use of him∣self for life, and afterwards to the use of his Son and his Heirs; The Father and the Feoffees before issue for Mony by Deed, granted and enfeoffed J.S. and his Heirs, who hath not no∣tice of the first use; The Tenant for life hath issue, and dieth, the issue entreth. Glanvil, the use limited to the first Son is destroyed; for without regress of the Feoffees it cannot rise, and it is gone by their Livery. See the Case in Plowden 349. and also he vouched the Case of the Earl of Kent, where by the Release of the surviving Feoffee,* 1.2 a Sleeping-Vse was destroyed, and could not after be revived. Harris, the use may rise, without entries of the Feoffees; and he put a difference between an use created before the Statute, and a use created afterwards; for in the first Case they ought to enter; and if they be disabled by any Act, as in the Case between Gascoign and the Earl of Kent, it shall never rise; but in the later Case, the whole authority and confidence is by the Statute taken out of the Feoffee, and the contingent use shall rise without aid of the Feoffees, by the operation of the Law; for there the Land is bound to the Vses, and charged with them: As upon a Iudgment in a Warrantia Chartae, the Land of the Defen∣dant is bounden pro loco, & tempore; and according to the Com∣mon experience in Conveyances for payment of the Kings Debts; as in the Case between Proctor and Dennis, The Debtor of the King makes a Feoffment in Fee unto the use of himself and his Heirs, until he makes default of such a payment to the Queen at such a day, and upon default to the use of the Queen and her Heirs. Cowper, There needs no Entry of the Feoffees; and he put the difference put before by Harris, betwixt a Vse created before, and a Vse created after the Statute; and now the Feoffees have not any power to revive or to stand seised to such Vses, but are on∣ly as Instruments to convey the Vses. For the Vse is created upon the Livery, and is transferred by the Statute, if the person to whom the Vse is limited be capable of it at the time of the limi∣tation; but if not, the Law preserves it until, and it cannot be by any means prevented; and he cited the Case, 30 H. 8. Br. Feoff∣ments to Vses 50 and there is a great difference betwixt a Vse limited before and after the Statute: For now after the Statute, the Feoffees by reason of their seisin cannot be vouched; for they have not such a Seisin, whereof they may make a Feoffment, and he put the Case between Cheny and Oxenbridge; Cheny leased to Oxenbridge for 50 years, and afterwards enfeoffed Oxenbridge to the use of Cheny himself, and his Wife for their lives, with di∣vers remainders over; And it was adjudged in the Court of Wards, That by the Feoffment the Term is not extinct; and he put the Case of the Lord Pagett, adjudged in the Kings Bench.

A Feoffment was made to the use of the Feoffee for life, the Re∣mainder to him whom the Feoffor should name at his death in Fee, and the Feoffor and Feoffees for good Consideration levy a Fine to a Stranger, and afterwards the Feoffor nameth, and dieth: The party named by the Feoffor shall have the Land, notwithstan∣ding the Fine, &c. Beamount, the contingent use is here utterly destroyed by the Feoffment aforesaid; and it appeareth by the pre∣amble of the Statute of 27 H. 8. of Vses, That the motives of that Act did not favour Vses; but it was their meaning utterly to root them out: And if contingent Vses, which are not, nor can be executed by the Statute, should stand in force; the mischief should be, that no Purchasor should be secure of his Purchase, but should be in danger of a new born Vse not known before. And he groun∣ded his further Argument upon the reason of Manwood and Dyer, Where a Man makes a Feoffment in Fee to the Vse of himself and his Wife which shall be, and afterwards he and his Feoffees, and those in Remainder make a Feoffment to divers other new Fe∣offees, and to new Vses, and afterwards he takes another Wife, and dieth: The said Iustices were of Opinion, That by the said Feoffment, the contingent Vses were destroyed; For when the Estates which the Feoffees take, is taken away, which was the root and foundation of the Vses, and the branch and fruit of the said Tree; it necessarily followeth, that they also be taken away; and also because the Feoffees by their Livery, are barred for to en∣ter, for to re-continue the Estate would continue these Vses, they also are gone and extinguished. Yelverton, I conceive, that not∣withstanding the Feoffment, that the Vse shall rise in his due time according to the limitation of it, &c.

Notes

• * 1.1

  4 Len. 233.
• * 1.2

  2 Roll. 797. Plow. 347.