The works of Francis Bacon, lord chancellor of England.

298 READING ON THE STATUTE OF USES.
So as now we are come by negatives to the by the private conscience of the feoffee, or the
Secondly, f- affirmative, what a use is, agreeable to general conscience of the realm, which is
firmatively. the definition in Plowden, 352. In chancery.
I Rep. 121.
Chudleigh's Barnard and Delamer's case, where it The two former of which, because they be
case, Poph. 71,
72. Del mer's is said: —that matters more thoroughly beaten, and we shall have
3a13. 3P'. Use is a trust reposed in any person occasion hereafter to handle thern, we will not
Dyer, 1- by the terre-tenant, that he may suffer now dilate upon:
him to take the profits, and that he will perform But the third we will speak somewhat of; both
his intent. because it is a key to open many of the true
But it is a shorter speech to say, that reasons and learnings of uses, and because it
tendeth to decide our great and principal doubts
UsTns est dominium fiduciarium: Use is an at this day.
owner's life in trust. Coke, solicitor, entering into his argument of
So that uSUS et status, sive possessio, potius df- Chudleigh's case, said sharply and fitly:,, I will
put never a case but it shall be of a use, for a use
ferunt secundun rationem forl, quam secundum
in law hath no fellow;" meaning, that the learnnrdtm'am rei, for that one is in course of law, the
re for that one is in course of law the ing of uses is not to be matched with other learnother is in course of conscience; and for a trust,
lings. And Anderson, chief justice, in the arguwhich is the way to a use, it is exceedingly
well defined by Azo, a civilian of great un ment of the same case, did truly and profoundly
well,~~ ~control the vulgar opinion collected
derstandingo: 5 E. 4. 7.
upon 5 E. IV. that there might be posFides est obligatio conscientix unius ad inten- sessio fratris of a use; for he said, that it was no
tionenz altedius. more but that the chancellor would consult with
the rules of law, where the intention of the parAnd they have a good division likewise of ties did not specially appear; and therefore the
rights when they say there is private conceit, which Glanvile, justice, cited in
Jus precadiumr: J7us' fidzciadium: Jzus legitimuni. the 42 Reginae, in the case of Corbet
and Corbet, in the Common Pleas, of I Rep..
1. A right in courtesy, for the which there is one of Lincoln's Inn, whom he named not, but
no remedy at all. seemed well to allow of the opinion, is not
2. A right in trust, for which there is a remedy, sound; which was, that a use was but a limitabut only in conscience. tion, and did ensue the nature of a possession.
3. A richt in law. This very conceit was set on foot in
And so much of the nature and definition of 27 H. VIII. in the Lord Darcie's case,
a use. in which time they began to heave at uses: for
It followeth to consider the parts and thereafter the realm had many ages together put
The parts and
properties of a properties of a use: wherein it appear- in action the passing of uses by will, they began
eth by the consent of all books, and to argue that a use was not devisable, but that
it was distinctly delivered by Justice Walmsley, it did ensue the nature of the land: and the same
in 36 of Elizabeth: That a trust consisteth upon year after this statute was made; so that this
three parts. opinion seemeth ever to be a prelude and foreThe first, that the feoffee will suffer runner to an act of Parliament touching uses;
The parts.
the feoffer to take the profits. and if it be so meant now, I like it well: but in
The second, that the feoffee upon request of the mean time the opinion itself is to be rejected;
the feoffor, or notice of his will, will execute the and because, in the same case of Corestates to the feoffor, or his heirs, or any other at bet and Corbet, three reverend judges lRep. 8.
his direction. of the Court of Common Pleas did deliver and
The third, that if the feoffee be disseised, and publish their opinion, though not directly upon
so the feoffor disturbed, the feoffee will re-enter, the point adjudged, yet obiter as one of the reaor bring an action to re-continue the possession; sons of their judgment, that a use of inheritance
for that those three, pernancy of profits, execu- could not be limited to cease; and, again, that the
tion of estates, and defence of the land, are the limitation of a new use could not be to a stranger;
three points of the trust. ruling uses merely according to the ground of
Tle properties. For the properties of a use, they are possession; it is worth the labour to examine
exceedingly well set forth by Fenner, that learning. By 3 H. VII. you may collect,
justice, in the same case; and they be three: that if the feoffees had been disseised by the
1. Uses, saith he, are created by confidence: common law, and an ancestor collateral of cestu y
2. Preserved by privity, which is nothing else que use had released unto the disseisor, and his
but a continuance of the confidence, without in- warranty had attached upon cestuy que use, yet
terruption: and, the chancellor, upon this matter showed, would
3. Ordered and guided by conscience: either have no respect unto it, to compel the feoffees to