The works of Francis Bacon, lord chancellor of England.

READING ON THE STATUTE OF USES. 299
execute the estate unto the disseisor: for there of this to the world's end, in the law' but it is a
the case being, that cestuy que use in tail having reason of chancery, and it is this:
made an assurance by fine and recovery, and by That no court of conscience will en- 2Roll.Abr.
warranty which descended upon his issue, two force doneuss gratuitum, though the in- 7. 1ow. 3373.
of the judges held, that the use is not extinct; tent appear never so clearly, where it 7veP,. 49.
and Bryan and Hussey, that held the contrary, is not executed, or sufficiently passed
said, that the common law is altered by the new by law; but if money had been paid, and so a
statute; whereby they admit, that by the common person damnified, or that it was for the establishlaw that warranty will not bind and extinct a ment of his house, then it is a good matter in the
right of a use, as it will do a right of possession; chancery. So again I would see in all the law,
and the reason is, because the law of collateral a case where a man shall take by conveyance, be
warranty is a hard law, and not to be considered it by deed, livery, or word, that is not party to the
in a court of conscience. In 5 E. IV. grant: I do not say that the delivery must be to
5 E. 4,7.
it is said, that if cestity que use be at- him that takes by the deed, for a deed may be
tainted, q uery, who shall have the land, for the delivery to one man to the use of another. Neilord shall not have the land; so as there the use ther do I say that he must be party to the livery
doth not, imitate the possession; and the reason or deed, for he in the remainder may take though
is, because the lord hath a tenant in by title; for he be party to neither; but he must be party to
that is nothing to the supoena, because the fe- the words of the grant; here again the case of the
offor's intent was never to advance the lord, but use goeth single, and the reason is, because a
only his own blood; and therefore the query of conveyance in use is nothing but a publication of
the book ariseth, what the trust and confidence the trust; and, therefore, so as the party trusted
of the feoffee did tie him to do, as whether he be declared, it is not material to whom the publishould not sell the land to the use of the feoffee's cation be. So much for the raising of uses.
will, or in pios usus? So favourably they took Now as to the preserving of them.
the intent in those days, like as you may find in 2. There is no case in the common law wherein
37 H. 6 36. 37 H. VI. that if a man had appointed notice simply and nakedly is material to make a
his use to one for life, the remainder in coven, or particeps criminis; and, therefore, if
fee to another, and cestuy qzue use, for life had re- the heir, which is in by descent, infeoff one which
Sug. Gib. 247. fused, because the intent appeared not had notice of the disseisin, if he were not a disn. Coup. to advance the heir at all, nor him in seisor de facto, it is nothing: so in 33 3 H. 6.5.
reversion, presently the feoffee should make the H. VI. if a feoffment be made upon
estate for life of him that refused, some ways to collusion, and that feoffee make a feoffment over
the behoof of the feoffor. But to proceed in upon good consideration, the collusion is dissome better order towards the disproof of this charged, and it is not material whether the second
opinion of imitation, there be four points wherein feoffee had notice or no. So as it is put in 14 H.
we will examine the nature of uses. VIII. if a sale be made in a market overt upon
1. The raising of them. good consideration, although it be to one that hath
2. The preserving of them. notice that they are stolen goods, yet the property
3. The transferring of them. of a stranger is bound; though in the book before
4. rhe extinguishing of them. remembered, 35 H. VI. there be some opinion to
1. In all these four you shall see apparently the contrary, which is clearly no law; so in 31
that uses stand upon their own reasons, utterly E. III. if assets descend to the heir, and he alien
differing from cases of possession. I would have it upon good consideration, although it be to one
one case showed by men learned in the law, that had notice of the debt, or of the warranty, yet
where there is a deed; and yet there needs a it is good enough. So 25 Ass. p. 1, if a man
consideration; as for parole, the law adjudgeth it enter of purpose into my lands, to the end that a
too light to give a use without consideration; stranger which hath right, should bring his
but a deed ever in law imports a consideration, pr cipe and evict the land, I may enter notwithbecause of the deliberation and ceremony in the standing any such recovery: but if he enter,
confection of it: and, therefore, in 8 Regina it is having notice that the stranger hath right, and the
solemnly argued, that a deed should raise a use stranger likewise having notice of his entry, yet
without any other consideration. In the queen's I if it were not upon confederacy or collusion becase a false consideration, if it be of record, will tween them, it is nothing; and the reason of these
hurt the patent, but want of consideration doth cases is, because the common law looketh no
never hurt it; and yet they say that a use is but a farther than to see whether the act were merely
nimble and light thing; and now, contrariwise, actus fietus in francdem legis; and, therefore,
it seemeth to be weightier than any thing else: wheresoever it findeth consideration given, it dis
for you cannot weigh it up to raise it, neither by chargeth the coven.
deed, nor deed enrolled, without the weight of a But come now to the case of the use. Dv.,
consideratio,; but you shall never find a reason and there it is otherwise, as it is in 14