The works of Francis Bacon, lord chancellor of England.

300 READING ON THE STATUTE OF USES.
H. VIII. and 28 H. VIII. and divers other books; Glanvile, justice, said, that he could never find,
which prove that if the feoffee sell the land for neither in book, nor evidences of any antiquity,
good consideration to one that hath notice, the a contingent use limited over to a stranger; I an3 Rep. 81. purchaser shall stand seised to the an- swer, first, it is no marvel that you find no case
77R'. Ab. cient use; and the reason is, because before E. IV. his timne, of contingent uses, where
the chancery looketh farther than the there be not six of uses in all; and the reason,
common law, namely, to the corrupt conscience no doubt, was, because men did choose well
of him that will deal with the land, knowing it in whom they trusted, and trust was well observed;
equity to be another's; and, therefore, if there and at this day, in Ireland, where uses are in
were radix anzarihtdinis, the consideration purgeth practice, cases of uses come seldom in question,
it not, but it is at the peril of him that giveth it: except it be sometimes upon the alienations of
so that a consideration, or no consideration, is an tenants in tail by fine, that the feoffees will not
issue at the common law; but notice, or no notice, be brought to execute estates to the disinheritance
is an isue in the chancery. And so much for the of ancient blood. But for experience of conpreserving of uses. tingent uses, there was nothing more usual in
The transfer 3. For the transferring of uses there obits than to will the use of the land to certain
rin of uses. is no case in law whereby an action persons and their heirs, so long as they shall pay
may be transferred, but the sutbpona we see in the chantry priests their wages, and in default of
case of use was always assignable; nay, farther, payment, then to limit the use over to other peryou find twice 27 H. VIII. fol. 20, pla. 9; and, sons and their heirs; and so, in case of forfeiture,
again, fol. 30, and pla. 21, that a rioht of use through many degrees; and such con1 Rep. 121.1'29.
may be transferred; for in the former case Meon- veyances are as ancient as R. II. his
tague maketh an objection, and saith, that a right tine.
of use cannot be given by fine, but to him that 4. Now for determining and extin- T.e extinguishhath the possession; Fitzherbert answereth, Yes, guishing of uses, we put the case of ent of uses.
well enough; query the reason, saith the book. collectoral warranty before; add to that, the notaAnd in the latter case, where cestuty qffe use was ble case of 14 H. VIII., Halfpenny's 1411. 4.
infeoffed by the disseisor of the feoffee, and made case, where this very point is in the
a feoffment over, Englefield doubted whether the principal case; for a right out of land, and the
second feoffee should have the use. Fitzherbert land itself, in case of possession, cannot stand
said, 6'I marvel you will make a doubt of it, for together, but the rent shall be extinct; but there
there is no doubt but the use passeth by the feoff- the case is, that the use of the land and the use
ment to the stranger, and, therefore, this question of the rent may stand well enough together; for
needeth not to have been made." So the great a rent charge was granted by the feoffee to one
difficulty in 10 Reginw, Delamer's case, where that had notice of the use, and ruled, that the
the case was in effect, there being tenant in tail rent was to the ancient use, and both uses were
of a use, the remainder in fee, tenant in tail in esse simnul et semnel; and though Brudenell,
mnade a feoffment in fee, by the statute of 1 R. chief justice, urged the ground of possession to
III. and that feoffee infeoffed him in the remain- be otherwise, yet, he was overruled by other three
der of the use, who made a feoffment over; and justices; and Brooke said unto him, he
there question being made, whether the second thought he argued mnuch for his plea- aigg.essca.se,
feoffee should have the use in remainder, it is sure. And to conclude, we see that. 7
well said, that the second feoffee must needs things may be avoided and determined by the
have the best right in conscience; because the ceremonies and acts, like unto those by which
first feoffee claimeth nothing but in trust, and the they are created and raised: that which passeth
cestuty que muse cannot claim it against his sale; but by livery ought to be avoided by entry; that
the reason is apparent, as is touched before, that which passeth by grant, by claim; that which
a use in esse was but a thing in action, or in suit passeth by way of charge, determineth by way
to be brought in court of conscience; and whether of discharge; and so a use which is raised but
the szlbpcena was to be brought against the feoffee by a declaration or limitation may cease by
in possession to execute the estate, or against the words of declaration or limitation, as the civil
feoffee out of possession to recontinue the estate, law saith, in his magis consentanemun est, quans7
always the szbpena might be transferred; for ut iisdem mnodis res dissolvantur quibus constistill the action at the common law was not stirred, tuantur.
but remained in the feoffee; and so no mischief For the inception and progression of
The inception
of maintainance or transferring rights. uses, I have, for a precedent in them, and progrees of
And if any use being but in right searched other laws, because states'I'flb. v.
may be assigned, and passed over to and commonwealths have common accidents;
a stranger, a niultofortiori, it may be limited to a and I find, in the civil law, that that which
stranger upon the privity of the first conveyance, cometh nearest in name to the use is nothing like
as shall be handled in another place; and whereas I in matter, which is usus fructus; for ESus fructsfw