Nature and

definition of an use.

Br. Feoff. al uses, pl. 40.

15 H. 7. 2. & 13.

Br. Presenta

the inconveniences now a foot by construction of the statute, without offering violence to the letter or sense.

6. The sixth and last discourse shall be of the best course to remedy the same inconveniences and to declare the law by act of parliament: which last I think good to reserve, and not to publish.

The nature of an use is best discerned by considering, first, what it is not; and then what it is: for it is the nature of all human science and knowledge to proceed most safely by negative and exclusion, to what is affirmative and inclusive.

First, therefore, an use is no right, title, or interest in law; and therefore Mr. Attorney', who read upon this statute, said well, that there are but two rights: Jus in re: Jus ad rem. The one is an estate, which is Jus in re: the other a demand, which is Jus ad rem. But an use is neither: so that in 24 H. VIII. it is said that the saving of the statute of 1 R. III., which saveth any right or interest of intails, must be understood of intails of the possession, and not of the use, because an use is no Sec. 462, &c. right nor interest; so again, you see Littleton's conceit, that an use should amount to a tenancy at will whereupon a release might well inure because of privity, is controlled by 5 H. VII. 5. and divers other books, which say that cestui que use is punishable in trespass towards the feoffees. Only 5 H. V. 3. tion al Eglise seemeth to be at some discord with other books, where it is admitted for law, that if there be cestui que use of an advowson, and he be outlawed in a personal action, the king should have the presentment; which case Master Ewens, in the argument of Chudleigh's case, did scek to reconcile thus: where cestui que use, being outlawed, had presented in his own name, there the king should remove his incumbent. But no such thing can be collected upon the book, and, therefore, I do rather conceive the error grew upon this; that, because it was generally thought that an use was but a pernancy of profits, and then again, because the law is that upon outlawries upon personal actions the king shall have the pernancy of profits, they took that to be one and the selfsame thing which cestui que use had, and which the

pl. 16., and Forfeiture,

pl. 14.

Coke, who read at the Inner Temple in 1592. He repeats the phrase in his Report of Chudleigh's Case, 1 Rep. 121. and one may well suppose we have there some fragments of his reading worked up into the argument.

king was entitled unto: which was not so; for the king had remedy in law for his pernancy of the profits, but cestui que use

had none.

The books go farther, and say that an use is nothing. As in 2 H. VII. 4. debt was brought and the plaintiff counted upon a demise for years rendering rent, &c. ; the defendant pleaded in bar, that the plaintiff nihil habuit tempore dimissionis; the plaintiff made a special replication, and showed that he had an use, and issue joined upon that: whereby it appeareth that if he had taken issue upon the defendant's plea, it should have been found against him. So again in 4 Reginæ, in the case of Dyer, 215. the Lord Sandys, the truth of the case was, a fine was levied by cestui que use before the statute, and this coming in question since the statute, upon an averment by the plaintiff quod partes finis nihil habuerunt, it is said that the defendant may show the special matter of the use, and it shall be no departure from the first pleading of the fine; and it is said farther, that the form of averment given in 4 H. VII. quod partes finis nihil habuerunt, nec in possessione, nec in usu, was ousted by this statute of 27 H. VIII. and was no more now to be accepted; but yet it appears that if issue had been taken upon the general averment, without the special matter showed, it should have been found for him that took the averment, because an use is nothing.

But these books are not to be taken generally or grossly; for we see in the same books, that when an use is specially alleged, the law taketh knowledge of it. But the sense of it is, that an use is nothing for which any remedy is given by the course of the common law; so as the law knoweth it, but protects it not: and, therefore, when the question cometh, whether it hath any being in nature or in conscience, the law accepteth of it; and therefore Littleton's case is good law, that he that hath but forty shillings freehold in use, shall be sworn of an inquest, for that is ruled secundum dominium naturale, and not secundum dominium legitimum; nam naturu dominus est, qui fructum ex re percipit. And so, no doubt, upon subsidies and taxes cestui que use should have been valued as an owner: so, likewise, if cestui que use had released his use unto the feoffee for six pounds, or contracted with a stranger for the like sum, there was no doubt but it was a good consideration whereon to ground an action upon the case for the money: for the release of a suit in the Chancery is a good quid pro quo. Therefore, to conclude,

Sec. 464.

Plowd. 352.

though an use be nothing in law to yield remedy by course of law, yet it is somewhat in reputation of law and in conscience: for that may be somewhat in conscience which is nothing in law, like as that may be something in law which is nothing in conscience; as, if the feoffees had made a feoffment over in fee bona fide upon good consideration, and upon a subpoena brought against them they pleaded this matter in Chancery, this had been nothing in conscience, not as to discharge them of damages.

A second negative fit to be understood is, that an use is no covin; nor it is no confidence' as the word is now used.

For it is to be noted that where a man doth remove the estate and possession of lands or goods out of himself unto another upon trust, it is either a special trust, or a general trust.

The special trust, again, is either lawful, or unlawful.

The special trust unlawful appears in the cases provided for by ancient statutes of pernors of the profits; as where it is to defraud creditors, or to get men to maintain suits, or to defeat the tenancy to the præcipe, or the statute of mortmain, or the lords of their wardships, or the like. And these are termed frauds, covins, or collusions.

The special trust lawful is as when I infeoff some of my friends because I am to go beyond the seas, or because I would free the land from some statute or bond which I am to enter into, or upon intent to be reinfeoffed, or upon intent to be vouched and so to suffer a common recovery, or upon intent that the feoffees shall infeoff over a stranger, and infinite the like intents and purposes which fall out in men's dealings and occasions. And this we call confidence, and the books do call them intents.

But where the trust is not special, nor transitory, but general and permanent, there it is an use. And therefore these three are to be distinguished, and not confounded: the covin, the confidence, and the use.

So as now we are come by negatives to the affirmative, what an use is; agreeable to the definition in Delamer's case, where it is said: an use is a trust reposed by any person in the terretenant, that he may suffer him to take the profits, and that he

'So Harl. MS. 6688. The common reading is "collusion." Bacon is describing and distinguishing three things; the "covin," the "confidence," which are special trusts, and the "general trust," or use.

will perform his intent. But it is a shorter speech to say, that usus est dominium fiduciarium: Use is an ownership in

trust.

1

So that usus et status, sive possessio, potius differunt secundum rationem fori, quam secundum naturam rei, for what one is in course of law, the other is in course of conscience. And for a trust, which is genus to the use, it is exceedingly well defined. by Azo, a civilian of great understanding: Fides est obligatio conscientiæ unius ad intentionem alterius. And they have a good division likewise of rights: Jus precarium: Jus fiduciarium: Jus legitimum: a right in courtesy, for the which there is no remedy at all: a right in trust, for which there is a remedy, but only in conscience: a right in law.

So much of the nature and definition of an use.

It followeth to consider the parts and properties of an use: wherein it appeareth by the consent of all books, and it was distinctly delivered by Justice Walmsley in 36 of Elizabeth: that the 2 trust consisteth upon three parts:

The first, that the feoffee will suffer the feoffor to take the profits: the second, that the fcoffee upon the request of the feoffor, or notice of his will, will execute the estate to the feoffor, or his heirs, or any other by his direction: the third, that if the feoffee be disseised, and so the feoffor disturbed, the fcoffee will reenter, or bring an action to recontinue the possession. So that these three, pernancy of profits, execution of estates, and defence of the land, are the three points of the trust.

For the properties of an use, they are exceeding well set forth by Fenner, Justice, in the same case; and they be three: Uses, saith he, are created by confidence; preserved by privity (which is nothing else but a continuance of the confidence without interruption); and ordered and guided by conscience, either by the private conscience of the feoffee, or the general conscience of the realm, which is Chancery.3

The two former of which, because they be matters more thoroughly beaten and we shall have occasion hereafter to handle them, we will not now dilate upon: but the third we will speak somewhat of; both because it is a key to open many

1 So Harl. MS. 6688. The common reading is "the way."

2 So Harl. MS, 6688. instead of "a:" i. e. the trust which the feoffee is bound to perform.

3 These passages from the judgments of Walmsley and Fenner do not appear else. where.

The parts

and proper

ties of a use.

30.

of the true reasons and learnings of uses, and because it tendeth to decide our great and principal doubts at this day. '

Coke, Solicitor, entering into his argument of Chudleigh's case, said sharply and fitly 2: "I will put never a case but it shall be of an use, for an use in law hath no fellow;" meaning, that the learning of uses is not to be matched with other learnings. And Anderson, Chief Justice, in the argument of the same case, did truly and profoundly control the vulgar opinion, Br. Descent, collected upon 5 E. IV. 7. that there might be possessio fratris of an use; for he said that it was no more but that the chancellor would consult with the rules of law, where the intention of the parties did not specially appear. And therefore the private conceit, which Glanvile, Justice, cited in 42 Reginæ, in the case of Corbet 3 in the Common Pleas, of one of Lincoln's Inn, (whom he named not, but seemed well to allow of the opinion,) is not sound; which was, that an use was but an imitation and did ensue the nature of a possession.

1 Rep. 88.

27 II. 8. 9, 10.

Br. Feoff, al uses, 21.

This very conceit was set on foot in 27 H. VIII. in the Lord Dacre's case, in which time they began to heave at uses. For there, after the realm had many ages together put in ure the passing of uses by will, they began to argue that an use was not devisable, but that it did ensue the nature of the land. And the same year, after, this statute was made; so that this opinion scemeth ever to be a prelude and forerunner to an act of Parliament touching uses and if it be so meant now, I like it well; but in the meantime the opinion itself is to be rejected.

And because, in the same case of Corbet, three reverend judges of the court of Common Pleas did deliver and publish their opinion (though not directly upon the point adjudged, yet obiter as one of the reasons of their judgment), that an use of inheritance could not be limited to cease; and again, that the limitation of a new use could not be to a stranger-ruling uses merely according to the ground of possession-it is worth the labour to examine that learning.

By 3 II. VII. 13. you may collect, that if the feoffees had

See Note B. at the end.

2 I suppose the passage is represented in Coke's own report at the beginning of p. 123. by the parenthesis, "for the treatise shall be only of uses."

In Coke's report, 1 Rep. S., the opinion is given as Glanville's, without allusion to the Lincoln's Inn man. Coke represents the judgment to have been given in Easter Term, which was after this Reading; and, if so, we must suppose this passage to have been subsequently inserted. But the Pleadings show a judgment in Hilary Term and afterwards a writ of error: so that it seems possible Coke's Report may be, wholly or in part. of the judgment delivered just before Bacon's Reading.