and interest the King hath in her possession she cannot be seised to an use A Corporation cannot be seised to an use because their capacity is to a use certaine againe because they cannot Execute an Estate without doing wrong to their Corporation or Founder but chiefly because of the letter of this Statute which in any clause when it speaketh of the Feoffee resteth only upon the word person but when it speaketh of Cefty que use it addeth person or body politicke If a Bishop bargaine or sell Lands whereof hee is seised in the right of his Sea this is good during his life otherwise it is where a Bishop is infeoffed to him and his Successors to the use of I. D. and his heires that is not good no not for the Bishops life but the use is meerely voyd Contrary Law of Tenant in Taile for if I give Land in Taile by Deed since the Statute to A. to the use of B. and his heires B. hath a fee-simple determinable upon the death of A without issue And like Law though doubtfull before the Statute was for the chiefe reason which bred the doubt before the Statute was because Tenant in Tayle could not Execute an Estate without wrong but that since the Statute is quite taken away because the Statute saveth no right of intayle as the Statute of 1. R. 3. did and that reason likewise might have bin answered before the Statute in regard of the common recovery A feme Covert and an Infant though under yeares of discretion may be seised to an use for aswell as Land might descend unto them from a Feoffee to use so may they originally be infeoffed to an use yet if it be before the Statute and they had upon a Subpoena brought executed their Estate during the coverture or infancy they might have defeated the same and when they should have beene seized againe to the Use and not to their owne use but since the Statute no right is saved unto them If a feme Covert or an Infant be enfeoffed to an Use precedent since the Statute the Infant or Baron come too late to discharge or roote up the Feoffment but if an Infant be infeoffed to the Use of himselfe and his Heires and I. D. pay such a summe of money to the Use of I. G. and his Heires the Infant may disagree and overthrow the contingent Use Contrary Law if an Infant be infeoffed to the Use of himselfe for life the remainder to the Use of I. S. and his Heires he may disagree to the feoffment as to his owne Estate but not to devest the remainder but it shall remaine to the benefit of him in remainder And yet if an Attainded person be infeoffed to an Use the Kings Title after Office found shall prevent the Use and Relate above it but untill office the Cesty que vse is seised of the Land Like Law of an Alien for if Land be given to an Alien to an Use the Use is not voyd ab initio Yet neither Alien or Attainded person can maintaine an Action to defend the Land The Kings Villeine if he be infeoffed to an Use the Kings Title shall relate above the Use otherwise in Case of a common person But if the Lord be infeoffed to the Use of his Villeine the Use neither riseth but the Lord is in by the CoÌ„mon Law not by the Statute discharged of the use But if the husband be infeoffed to the use of his wife for yeares if he die the wife shall have the Terme and it shall not inure by way of discharge although the Husband may dispose of the wives Terme So if the Lord of whom the Land is held be infeoffed to the Use of a person Attainded the Lord shall not hold by way of discharge of the Use because of the Kings Title An. diem vastum A person uncertaine is not within the Statute nor any Estate in nutibus or suspence executed as if I give Land to I. S. the remainder to the right Heires of I. D. to the use of I. N. and his Heire I. N. is not seised of the Fee-simple of an Estate per vit. of I. S. till I. D. be dead and then in Fee-simple Liker Law if before the Statute I give Land to I. S. per auter vie to an Use and I. S. dyeth leaving Cesty que vse whereby the free-hold is in Suspence the Statute commeth and no occupant entreth the Use is not executed out of the free-hold in suspence For the occupant the Disseissor the Lord by Escheate The Feoffee upon consideration not having notice and all other persons which shal be seised to Use not in regard of their persons but of their Title I referre them to my division touching disturbance and interruption ofUses It followeth now to see what person may be a Cesty que vse the King may be Cesty que vse but it behoveth both the declaration of the Use and the conveyance it selfe to be matter of Record because the Kings Title is compounded of both I say not appearing of Record but by conveyance of Record And therefore if I covenant with I. S. to leavy a Fine to him to the Kings use which I do accordingly And this deed of Covenant be not inrol'd and the Deed be found by office the use vesteth not Econverso inrol'd If I covenant with I. S. to infeoffe him to the Kings use and the Deed be inrol'd â—nd the feoffment also be found by office the use vesteth But if I leavy a fine or suffer a Recovery to the Kings use and declare the use by Deede of Covenant Enrol'd though the King be not party yet it is good enough A Corporation may take an Use yet it is not material whether the feoffment or the Declaration be by deed but I may infeoffee I. S. to the use of a Corporation and this use may be averred A Use to a person incertaine is not voyd in the first limitation but executeth not till the person be in esse so that this is positive than an Use shall never be in Obeyance as a Remainder may be but ever in a person certaine upon the words of the Statute and the Estate of the Feeoffees shall be in him or them which have the Use The reason is because no confidence can be reposed in a person unknowne and uncertaine and therefore if I make a feoffment to the use of I. S. for life and then to the use of the right Heires of I. D. the remainder is not in Obeyance but the Reversion is in the Feoffer quousque So that upon the matter all persons uncertaine in Use are like conditions or limitations precedent Like Law if I Enfeoffee one to the use of I. S. for yeares the remainder to the right Herres of I. D. This is not executed obeyance and therefore not void Like Law if I make a Feoffment to the use of my wife that shall be or to such persons as I shall
said to be at the Common Law and both the generall trust and the speciall were things not prohibited by the Law though they were not remedied by the Law so the Experience and practice of Uses were not ancient and my reasons why I think so are these First I cannot find in my Evidence before King R. 2. his time the clause ad opus et usum and the very Latin phrase was much purer as you may see by Bractons Writing and by ancient Patents and Deeds and chiefly by the Register of Writs which is good Latin wherein this phrase ad opus usum and the Words ad opus is a barbarous phrase and like enough to be in the pennin of some Chaplaine that was not much past his Grammer where he had found Opus usus coupled together and that they did governe an Ablative case as they do indeed since this Statute for they take away the Land and put them into a conveyance Secondly I find in no private Act of Attainder in the clause of Forfeiture of Lands S which he hath in possession or in Use untill Ed. 4. his Reigne Thirdly I find the Word vse in no Statute untill 7. Rich. 2. cap. 11. of Provisoes and in 15. Ric. 2. of Mortmame Fourthly I collect out of Cookes speech in 8. Edw. 4. where he sayth that by the advice of all the Judges it was thought that the Subpoena did not lye against the Heire of the Feoffee which was in by Law but Cesty que vse was driven to his Bill in Parliament that Uses even in that time were but in their infancy for no doubt but at the first the Chancery made difficulty to give Remedy at all but to leave it to the particular Conscience of the Feoffee But after the Chancery grew absolute as may appeare by the Statute of 15. Hen. 6. that complaints in Chancery should enter into Bond to prove their suggestions which seemeth that the Chancery at that time began to imbrace too farre and was used for vexation yet neverthelesse it made scruple to give remedy against the Heire being in by Act in Law though he were privy so that it cannot be that Uses had beene of any great continuance when they made a question As for the Case of Matrimony Prelomti it hath no affinity with Uses for wheresoever there was remedy at the Common-Law by Action it cannot be intended to be of the nature of a Use And for the Booke commonly vouched of Ass. where the Earle calleth the possession of a Conizee upon a Fine levied by consent an entry in Auterdroit and 44. of E. 3. where there is mention of the Feoffors that sued by petition to the King they be but implications of no moment So as it appeareth the first practice of Uses was about Richard 2 his time and the great multiplying and over-spreading of them was partly during the Wars in France which drew most of the Nobility to be absent from their Possessions and partly during the time of the Trouble and Civill War betweene the two houses about the Title of the Crowne Now to conclude the Progression of Uses in course of Statutes I do note three speciall points That a Use had never any force at all at the Common-Law but by Statute Law That there was never any Statute made directly for the benefit of Cesty que Vse as that the Discent of an Use should toll an Entry or that a Release should be good to the partner of the profits or the like but alwayes for the benefit of Strangers and other persons against Cesty que use and his Feoffees For though by the Statute of Richard 3. he might alter his Feoffees yet that was not the scope of the Statute but to make good his assurance to other persons and the other came in Et obliquo That the speciall intent unlawfull and covenous was the Originall of Uses though after it induced to the lawfull intent generall and speciall For 5. Edward 3. is the first Statute I finde wherein mention is made of the taking of profits by one where the Estate in Law is another For as to the opinion in 27. Henr. 8. that in case of the Statute of Marlebridge the Feoffors took the profits it is but a conceite for the Law is this day that if a man infeoffee his Eldest Sonne within age and without consideration although the profits be taken to the use of the Sonne yet it is a Feoffment within the Statute of Religiosis and as for 7. Edward 1. which prohibits generally that Religious persons should not purchase Arte vel ingenio yet it maketh no mention of a Vse but it saith Colore donationis termini vel alicusus tituli reciting there three formes of conveyances the gift the long Lease and faigned Recovery which gift cannot bee understood of a gift to a Stranger to their use for that came to be holpen by 15 Richard 2. long after but to proceed in 5. Edward 3. a Statute was made for the reliefe of Creditors against such as made covin gifts of their Lands and goods and conveyed their bodies into Sanctuaries there living high upon others goods and therefore that Statute made their Lands liable to their Creditors Executions in that particular Case if they tooke the profits In 5. Richard 2. a Statute was made for reliefe of those as had right of Action against those as had renounced the tenancy of the Praecipe from them sometimes by infeoffing great persons for maintenance and sometimes by secret Feoffments to others whereof the Defendants could have no notice and therefore the Statute maketh the recovery good in all Actions against the first Feoffees as they tooke the profits and see that the Defendants bring their Action within a yeare at their expulsion 2. Richard 2. Cap. 3. Session 2. an imperfection of the Statute of 50. Edward 3. was holpen for whereas the statute tooke no place but where the Defendant appeared and so was frustrated the Statute giveth upon Proclamation made at the Gate of the place priviledged that the Land should be liable without apparance in 7. R. 2. A Statute was made for the restraint of Aliens to take thy Benefices or dignities Ecclesiasticall or Farmes of Administration to them without the Kings speciall Lycence upon paine of the Statute of Provisors which being remedied by a former Statute where the Alien tooke it to his owne use it is by that Statute remedied where the Alien tooke it to the use of another as it is said in the Booke though I ghesse that if the Record were searched it should be if any other purchased to the use of an Alien and that the words or to the use of another should be or any other to his use 15. Rich. 2. Cap. 5. a Statute was made for the reliefe of Lords against Mortmayne where Feoffments were made to the use of Corporations and an Ordinance made that for Feoffments past the Feoffees should
The President or patterne of it For the time of it was in 27. Henry 8. when the King was in full peace and a wealthy and flourishing Estate in which nature of time men are most carefull of their Possessions aswell because Purchases are most stirring as againe because the Purchasor when hee is full is no lesse carefull of his assurance to his Children and of disposing that which he hath gotten then hee was of his bargaine for the compassing thereof About that time the Realme likewise began to be infranchised from the Tributes of Rome and the Possessions that had beene in Mortmayne began to stirre abroad for this yeare was the suppression of the smaâ—ler Houses of Religion all tending to plenty and purchafing and this Statute came in consort with divers excellent Statutes made for the Kingdome in the same Parliament as the reduction of Wales to a more civill Government the re-edifying of diverse Cities and Townes the suppressing of depopulation and inclosures For the Title it hath one Title in the Role and another in course of Pleading the Title in the Role is no solemne Title but an Act title 5 an Act expressing an Order for Uses and Will the Title in course of Pleading is Statutum de usibus in Possessionem transferendis wherein Walmsly Iustice noted well 4. Reginae that if a man looke to the working of the Statute hee would thinke that it should be turned the other way De possessionibus ad usus transferendis for that is the course of the Statute to bring Possession to the Vse but the Title is framed not according to the worke of the Statute but according to the scope and intention of the Statute Nam quod primum est in intentione ultimum est in operatione the intention of the Statute by carrying the Possession to the use is to turne the use to a Possession for the words are not De possessionibus ad usus transferendis and as the Grammarian saith Praepositio ad denotat notam actionis sed prepositio in cum Accusativo denotat notam alterationis and therefore Kingsmill Justice in the same Case saith that the meaning of the Statute was to make a transsubstantiation of the use unto a Possession but it is to be noted that Titles of Acts of Parliament severally came in but in the 5. Henry 8. for before that time that was but one Title of all the Act made in one Parliament and that was no Title neither but a generall Preface of the good intent of the King but now it is parcell of the Record For the President of this Statute upon which it is drawne I doe finde by the first Richard 3. whereupon you may see the very mould whereon this Statute was made that the said King having beene infeoffed before he usurped to Uses as it was ordained that the Land whereof he was joyntly infeoffed as if hee had not beene named and where he was solely inseoffed it should bee in Cesty que use in Estate as he had the use Now to come to the Statute it selfe the Statute consisteth as other Lawes doe upon a Preamble the Body of the Law and certaine saving and Premisses The Preamble setteth forth the inconveniences the Body of the Law giveth the Remedy and the savings and Provisoes take away the inconveniences of the remedy for new Lands are like the Apothecaries Druggs though they remedy the Disease yet they trouble the body and therefore they use to correct with Spices so it is not possible to find a Remedy for any mischiefe in the Common Wealth but it will beget some new mischiefe and therefore they spice their Lawes with Provisoes to correct and qualifie them The Preamble of the Law was justly commended by Popham chiefe Justice in 36. Regine where hee saith that there is little need to search and collect out of Cases before the statute what the mischiefe was which the scope of the Statute was to redresse because there is a shorter way offered us by the sufficiency and fulnesse of the Preamble and therefore it is good to consider it and ponder it throughly The Preamble hath three parts First a recitall of the principall inconveniences which is the root of all the rest Secondly an ennumeration of diverse particular inconveniences as branches of the former Thirdly a taste or briefe note of the remedy that the Statute meaneth to apply the principall inconvenience which is Radix omnium malorum is the directing from the grounds and principalls of the Common Law by inventing a meane to transfer Lands and Inheritances without any solemnity or Act notorious so as the whole Statute is to be expounded strongly towards the extinguishment of all conveyances whereby the Free hold or Inheritance may passe without any new confections of Deeds Executions of Estate or entryes except it bee where the Estate is of privity and dependance one towards the other in which Cases Mutatis mutandis they might passe by the Rules of the Common Law The particular inconveniences by the Law rehearsed may bereduced into foure heads First that these conveyances in use are weake for consideration Secondly that they are obscure and doubtfull for tryall Thirdly that they are dangerous for want of notice and publication Fourthly that they are exempted from all such Titles as the Law subjecteth Possessions unto The first inconvenience lighteth upon Heires The second upon Jurors and Witnesses The third upon Purchasors The fourth upon such as come in by gift in Law All which are persons that the Law doth principally respect and favour For the first of these are three impediments to the judgement of man in disposing justly and advisedly of his Estate 5 First trouble of mind Secondly want of time Thirdly of wise and faithfull Counsell about him And all theso three the Statute did finde to bee in the disposition of an Use by Will whereof followed the unjust dis-inheresin of Heires now the favour of Law unto Heires appeareth in many parts of the Law as the Law of discent priviledgeth the Possession of the Heire against the entry of him that hath right by the Law no man shall warrant against his Heire except he warrant against himselfe and diverse other Cases too long to stand upon and wee see the antient Law in Glanvills time was that the Ancestor could not dis-inherit his Heire by Grant or other Act executed in time of sicknesse neither could he alien Land which had discended unto him except it were for consideration of mony or service but not to advance any younger Brother without the consent of the Heire For tryalls no Law ever tooke a streighter course that Evidence should not be perplexed nor Juries inveigled then the Common Law of England as on the other side never Law tooke a more precise and straight course with Juries that they should give a direct verdict for whereas in manner all Lawes doe give the Tryers or
Law it putteth in precisely this word Other meaning the divided Use and not the communed Use and this causeth the Clause of joynt Feoffees to follow in a branch by it selfe for else that Case had beene doubtfull upon this word Other The words that are common to both are words expressing the conveyance whereby the Use ariseth of which words those that bred any question are Agreement Will otherwise whereby some have inferred that Uses might be raised by agreement paroll so there were a consideration of mony or other matter valuable for it is expressed in the words before Bargaines Sale and Contract but of bloud or linned the errour of which Collection appeareth in the word immediately following s. Will whereby they might aswell include that a man seised of Land might raise an Use by Will especially to any of his Sonnes or Kindred where there is a reall consideration and by that reason meane betwixt this Statute and the Statute of 32. of Wills Lands were deviseable especially to any mans Kindred which was clearely otherwise and therefore those words were put in nor in regard of Uses raised by those conveniences or without or likewise by Will might be transferred and there was a person seised to a Use by force of that agreement or Will s. to the Use of the Assigne and for the word Otherwise it should by the generality of the word include a Disseisin to a Use but the whole scope of the Statute crosseth that which was to execute such Uses as were confidences and trust which could not be in Case of Disseisin for if there were a commandment precedent then the Land was vested in Cesty que use upon the entry and if the Disseisin were of the Disseisors owne head then no trust and thus much for the case of Supposition of this Statute here follow the ordinance and purview thereupon The Purview hath two parts the first Operatio Statuti the effect that the Statute worketh and there is Modus operandi a fiction or explanation how the Statute doth worke that effect The effect is that Cesty que use shall be in possession of like Estate as he hath in the Use the fiction quomodo is that the Statute will have the Possession of Cesty que use as a new body compounded of matter and forme and that the Feoffees shall give matter and substance and the Use shall give forme and quality the materiall words in the first part of the purview are foure The first words are Remainder and Reverture the Statute having spoken before of Uses in Fee-simple in Tayle for life or yeares addeth or otherwise in Remainder reverture whereby it is manifest that the first words are to be understood of Uses in Possession for there are two substantiall and essentiall differences of Estates the one limiting the times for all Estates are but times of their continuantes the former maketh little difference of Fee-simple Fee Tayle for life or yeares and the other maketh difference of Possession as remainder all other differences of Estate are but accidents as shall be said hereafter these two the Statute meant to take hold of and at the words Remainder and Reverture it stopps it addes not wordes Right Title or possibility nor it hath not generall words or otherwise it is most plaine that the Statute meant to execute no inferiour Uses to Remainder or Reverture that is to say no possibility or contingences but Estates onely such as the Feoffees might have executed by Conscience made note also the very Letter of the Statute doth take notice of a difference betweene an Use in Remainder and an Use in Reverture which though it cannot properly because it doth not depend upon particular Estates as Remainders doe neither did then before the Statute draw any Tenures as Reversions doe yet the Statute intends that there is a difference when the particular Use and the Use limited upon the particular Use are both new Uses in which Case it is a Use in Remainder and where the particular Use is a new Use and the remnant of the use is the old use in which Case it is a use in Reverter The next materiall word is from henceforth which doth exclude all conceipt of relation that Cesty que use shall not come in as from the time of the first Feoffments to use as Bradnells conceipt was in 14. Henry 8. that is the Feoffee had granted a Rent charge and Cesty que use had made a Feoffment in Fee by the Statute of 1. Richard 3. the Feoffee should have held it discharged because the Act of Cesty que use shall put the Feoffee in as if Cesty que use had beene seised in from the time of the first Use limited and therefore the Statute doth take away all such ambiguities and expresseth that Cesty que use shall bee in Possession from henceforth that is from the time of the Parliament for Uses then in being and from the time of the execution for Uses limited after the Parliament The third materiall words are Lawfull seisin state and Possession not a Possession in Law onely but a seisin in Tayle not a Title to enter into the Land but an actuall estate The fourth words are of and in such Estates as they had in the Use that is to say little Estates Fee-simple Fee Tayle life for yeares at Will and Possession and Reversion which are the substantiall differences of Estates as was said before but both their latter Clauses are more fully perfected and expounded by the branch of the fiction of the Statute which followes This branch of Fiction hath three materiall words or Clauses the first materiall Clause is that the Estate Right Title and Possession that was in such person c. shall bee in Cesty que use for that the matter and substance of the Estate of Cesty que use is the Estate of the Feoffee and more hee cannot have so as if the Use were limited to Cesty que use and his Heires and the Estate out of which it was limited was but an Estate for life Cesty que use can have no Inheritance so if when the Statute came the Heire of the Feoffee had not entred after the death of his Ancestor but had onely a Possession in Law Cesty que use in that Case should not bring an Assize before entry because the Heire of the Feoffee could not so that the matter whereupon the Use must work is the Feoffees Estate but note here whereas before when the Statute speakes of the Uses it spake onely of Uses in Possession Remainder and Treverter but not in Title or Right now when the Statute speakes what shall bee taken from the Feoffee it speakes of Title and Right so that the Statute takes more from the Feoffee then it executes presently in Case where there are uses in contingence which are but Titles The second word is Cleerely which seemes properly and directly to meet with the conceipt of Scintilla Iuris as
their regresse in Case that it bee of another Feoffment then that whereupon the Statute hath wrought but upon the same Feoffment as if the Feoffee before the Statute had beene diseised and the disseis'd had made a Feoffment in Fee to I. D. his use and then the Statute came this executeth the Use of the second Feoffment but the first Feoffees may make a regresse and they yet claime to an Use but not by that Feoffment upon which the Statute hath wrought NOw followeth the third Case of the Statute touching execution of Rents wherein the materiall words are foure First whereas divers persons are seised which hath bred a doubt that it should onely goe to Rents in Use at the time of the Statute but it is Explained in the Clause following S as if a grant had beene made to them by such as are or shall be seised The second word is Profit for in the putting of the Case the Statute speaketh of a Rent but after in the Purview is added these words or profit The third word is ac si S that they shall have the S as if a sufficient grant or lawfull conveyance had bin made and made unto them The fourth words are the words of Liberty and Remedies attending upon such Rent S that hee shall distraine c. and have such Suits Entries and Remedies relying againe with an ac si as if the grant had beene made with such collaterall penalties and advantages Now for the Provisoes the Makers of this Law did so abound with policy and discerning as they did not onely fore-see such mischiefes as were incident to this new Law immediately but likewise such as were consequent in a remote degree and therefore besides the expresse Provisoes they did adde three new Provisoes which are in themselves substractive Lawes for foreseeing that by the Execution of Uses Wills formerly made should be over-throwne They made an ordinance for Wills fore-seeing likewise that by execution of Uses women should be doubly advanced They made an ordinance for Dowers and Jointures foreseeing againe that the execution of Uses would make franktenement passe by Contracts paroll They made an ordinance for inrollments of Bargaines and Sales the two former they inserted into this Law and the third they distinguished into a Law apart but without any preamble as may appeare being but a Proviso to this Statute besides all these provisionall Lawes and besides five Provisors whereof three attend upon the Law of Jointure and two borne in Wales which are not materiall to the purpose in hand There are sixe provisoes which are naturall and true members and limbs of the Statute whereof foure concerne the part of Cesty que use and two concerne the part of the Feoffees The soure which concerne the part of Cesty que use tend all to save him from prejudice by the execution of the estate The first saveth him from the extinguishment of any Statute or Recognizance as if a man had an Extent of a hundred Acres and an Use of the inheritance of one Now the Statute executing the possession to that one would have extinguisht his Extent being intire in all the rest or as if the Commissioner of a Statute having ten Acres lyable to the Statute had made a Feoffment in Fce to a Stranger of two and after had made a Feoffment in Fce to the use of the Conuzec and his Heires And upon this Proviso there arise three Questions First whether this Proviso were not superfluous in regard that Cesty que use was comprehended in the generall saving though the Feoffees be excluded Secondly whether this Proviso doth save Statutes or Executions with an apportionment and Entire Thirdly because it is penned indefinitively in point of time whether it shall goe to Uses limitted after the Statute as well as to those that were in being all the time of the Statute which doubt is rather inforced by this Reason because there was for Uses at the time of the Statute for that the Execution of the Statute might be wayved but both possession and Use since the Statute may be wayved The second proviso saveth Cesty que vse from the charge of primer Seisin liveries Ouster le maines and such other duties to the King with an expresse limitation of Time that he shal be discharged for the time past and charged for the time to come in a King S May 1536. to be communis terminus The third proviso doth the like for Fines Reliefes and Herriots discharging them for the time past and speaking nothing of the Time to come The fourth proviso giveth to Cesty que use all collaterall benefits of Vouchers Aides priers Actions of wast Trespasse conditions broken and which the Feoffees might have had and this is expresly limitted for Estates executed before 1. May 1536. and this proviso giveth occasion to intend that none of these benefits would have beene carried to Cesty que vse by the generall words in the body of the Law S that the Feoffees estate right Title and possession c. For the two provisoes on the part of the Tertenant they both concerne the saving of strangers from prejudice c. The first saves Actions depending against the Feoffees that they shall not abate The second saves Wardships Liveries and Ouster Le maines whereof Title was vested in regard of the Heire of the Feoffee and this in case of the King only What Persons may be seised to an Vse and what not What persons may be Cesty que use and what not What Persons may declare an use and what not THough I have opened the Statute in order of words yet I will make my Division in order of matter viz. 1. The raysing of Uses 2. The interruption of Vses 3. The Executing of Vses Againe The raising of Uses doth easily divide it selfe into three parts The persons that are Actors to the Conveyance to Use The Use it selfe The forme of the Conveyance Then it is first to be seene what persons may be seised to an Use and what not and what persons may be Cesty que use and what not The King cannot be seised to an Use no not where he taketh in his naturall body and to some purpose as a common person and therefore if Land be given to the King and I. D. per terme de lour vies this Use is void for a moity Like Law is if the King be seised of Land in the right of his Dutchy of Lancaster and covenanteth by his letters Pattents under the Dutchy Seale to stand seised to the use of his Sonne nothing passeth Like Law if King R. 3. who was Feoster to divers uses before he took upon him the Crowne had after hee was King by his Letters pattents granted the Land over the uses had not bin renewed The Queene speaking not of an Imperiall Queene by marriage cannot be seised to an use though she be a body inabled to grant and purchase without the King Yet in regard of the government
maintaine though I limit no particular Estate at all yet the use is good and shall in the interim returne to the Feoffor Contrary Law if I once limit the whole Fee-simple of the Use out of Land and part thereof to a person incertaine it shall never returne to the Feoffer by way of fraction of the Use but looke how it should have gone unto the Feoffer if I begin with a contingent Use so it shall go to the remainder if I intaile a contingent Use both Estates are alike subject to the contingent Vse when it falleth as when I make a Feoffment in Fee to the use of my wife for life the remainder to my first begotten son I having no Sonne at that time the remainder to my brother and his heires if my wife dye before I have any son the Vse shall not be in me but in my brother And yet if I marry againe and have a Sonne it shall devest from my brother and be in my Sonne which is the skipping they talke so much of So if I limit an Use joyntly to two persons not in Esse and the one commeth to bee in esse hee shall take the intire Use and yet if the other afterward come in esse hee shall take joyntly with the former as if I make a Feoffment to the use of my Wife that shall bee and my first begotten Sonne for their Lives and I marry my Wise taketh the whole Use and if I afterwards have a Sonne hee taketh joyntly with my Wife But yet where words of obeyance worke to an Estate executed in course of Possession it shall doe the like in Use as if I infeoffee A. to the use of B. for life the remainder to C. for life the remainder to the right Heires of B. this is a good remainder executed So if I enfeoffee A. to the use of his right Heires A. is in the Fee-simple not by the Statute but by the Common Law Now are wee to examine a speciall point of the disability of persons as to take by the Statute and that upon the words of the Statute where divers persons are seised to the use of other persons so that by the letter of the Statute no use is conteyned but where the Feoffor is one and Cesty que use is another Therefore it is to bee seene in what Cases the same persons shall be both seised to the use and Cesty a que use and yet in by the Statute and in what Cases they shall be diverse persons and yet in by the Common Law wherein I observe unto you three things First that the letter is full in the point Secondly that it is strongly urged by the Clause of joynt Estates following Thirdly that the whole scope of the Statute was to remit the Common Law and never to intermeddle where the Common Law executed an Estate therefore the Statute ought to bee expounded that where the party seised to the use and the Cesty que use is one person hee never taketh by the Statute except there bee a direct impossibiltie or impertinency for the use to take effect by the Common Law And if I give Land to I. S. to the use of himselfe and his Heires and if I. D. pay a summe of mony then to the use of I. D. and his Heires I. S. is in of an Estate for life or for yeares by way of abridgment of Estate in course of Possession and I. D. in of the Fee-simple by the Statute So if I bargaine and sell my Land after seven yeares the Inheritance of the Use onely passeth and there remaines an Estate for yeares by a kind of substraction of the Inheritance or occupyer of my Estate but meerely at the Common Law But if I enfeoffee I. S. to the use of himselfe intayle and then to the use of I. D. in Fee or Covenant to stand seisd to the use of my selfe in tayle and to the use of my Wife in Fee in both these Cases the Estate tayle is executed by this Statute because an Estate tayle cannot be reoccupied out of a Fee-simple being a new Estate and not like a particular Estate for life or yeares which are but portions of the absolute Fee and therefore if I bargaine and sell my Land to I. S. after my death without Issue it doth not leave an Estate tayle in mee nor vesteth any present Fee in the bargaines but is an use expectant So if I enfeoffee I. S. to the use of I. D. for life and then to the use of himselfe and his Heires he is in of the Fee-simple meerely in course of Possession and as of a Reversion and not of a remainder Contrary Law if I enfeoffee I. S. to the use of I. D. for life then to the use of himselfe for life the remainder to the use of I. N. in Fee now the Law will not admit fraction of Estates but I. S. is in with the â—est by the Statute So if I infeoffee I. S to the use of himselfe and a Stranger they shall be both in by the Statute because they could not take joyntly taking by severall Titles Like Law if I infeoffee a Bishop and his Heires to the use of himselfe and his successors he is in by the Statute in the right of his Sea And as I cannot raise a present use to one out of his owne seisin so if I limit a contingent or future use to one being at the time of limitation not seis'd but after become seised at the time of the execution of contingent use there is the same reason and the same Law and upon the same difference which I have put before As if I covenant with my Sonne that after his Marriage I will stand seised of Land to the use of himselfe and his Heires and before Marriage I enfeoffee him to the use of himselfe and his Heires and then hee marryeth hee is in by the Common Law and not by the Statute like Law of a bargaine and sale But if I had let to him for life onely then hee should have beene in for life onely by the Common Law and of the Fee-simple by Statute Now let mee advise you of this that it is not a matter of subtilty or conceipt to take the Law right when a man commeth in by the Law in course of Possession and where hee commeth in by the Statute in course of Possession but it is materiall for the deciding of many Causes and Questions as for Warranties Actions Conditions Wayners Suspitions and divers other Provisoes For example a mans Farmer committed wast after he in the Reversion covenanteth to stand seis'd to the use of his Wife for life and after to the use of himselfe and his Heires his Wife dyes if hee bee in his Fee untouch'd he shall punish the wast if he be in by the Statute he shall not punish it So if I bee infeoffed with Warranty and I covenant with my Sonne to stand seised to the use of my selfe for