"those personal trusts, which are better known in our law by the name of deposits or bailments (i. e. of moveable effects); for imagination can scarcely trace a period so remote, in which man, in society, was not sometimes induced to trust another with the object of his care or the fruit of his industry." (a)

But it is equally apparent that uses of the second description, which may be called permissive or passive uses, must have owed their origin to the rigour of existing institutions, denying to the acknowledged legal proprietor that rational dominion, which is no less essential to the happiness of the individual, than conducive to the best interests of society, and prompting men to devise this indirect and secret mode of enjoying and disposing of their estates. While the exemption of uses from the prohibition against taking land in mortmain rendered them acceptable to the clergy, so ready a method of eluding the yoke of tenure could not but prove highly valuable to the people, circumscribed by the narrow doctrines of the common law, and groaning under the oppression of wardships, marriages, reliefs, escheats to the lord, forfeitures to the crown on attainder, and other feudal inflictions-all, or most of which, were evaded by this subtle invention. Hence the frequency of mere permissive uses.

Uses are further distributable into express uses, created by the declaration of the party; constructive uses, raised by the inference of equity, from the nature and object of the transaction; and resulting uses, produced by the attraction of the former ownership, and bearing some analogy to the reversion of the common law. If A. conveyed land to B. to the use of C., the (a) Sand. Us. 4th ed. 7.

benefit belonged, by the very terms of the conveyance, CHAP. II. to C., who had, therefore, an express use. If A. con- constructive veyed land to B., subject to a condition making void the uses, conveyance on payment by A. to B. of a sum of money at a given time, (or, in other words, made a mortgage of the land,) B., on non-payment of the money, became, to all intents, the legal owner of the land; but though the conveyance was thenceforth an absolute alienation at law, it was still regarded in Equity as a mere pledge, entitling B. to hold the land for the purpose only of effecting the liquidation of his debt, subject to which purpose, the use belonged by intendment to A., who had therefore a constructive use. If A. conveyed land to B., resulting uses. to the use of C. for life, without more, then, in the absence of circumstances affording an inference that B. was to retain the land for his own benefit after the death of C., the use, after C.'s death, returned to A., the grantor, who was, therefore, said to have a resulting use (a). Equity, in short, administered the use, or beneficial interest, according to the dictates of conscience, holding it unjust that the land should be retained by a creditor, whose debt was satisfied, or by a grantee in whose favour no use was declared or could be reasonably implied. We shall have occasion to recur at a later stage of our history to this distribution of uses.

One striking peculiarity in this new species of ownership requires to be particularly marked. As the use had its beginning in personal confidence, so its continuance, as a binding obligation on the legal owner of the land, was measured by the continuance of that confidence. The bond was dissolved by the transfer of the possession.

(a) Vide infrà, "Observations on Resulting Uses."

D

Alienees of the land, taking without notice of the use, were not bound by it;

owner was

CHAP. II. to a stranger, unapprised of the existing use, and contracting to have the land to his own use. Thus, if A., the legal owner, holding to the use of B., conveyed to C., a purchaser, who, in ignorance of the use in favour of B., paid a valuable consideration for the conveyance, C. was considered as coming to the possession with a clear conscience, and by a new right, founded on contract, which entitled him to hold the land for his own benefit, discharged of the use in favour of B. By this transaction, B. lost the land in respect of which the use was originally created, inasmuch as the conscience of C. was wholly unaffected by the confidence reposed in his vendor (A.), who failed to impart his fiduciary character to C. As against the purchaser (C.), who stood upon his legal title innocently acquired, there but the remedy was no ground for equitable relief. Not so, as it reof the equitable garded A., the person intrusted; for B.'s equity continued in full force against him, and he was compellable to make good the loss occasioned by his fraud. And, although, in the result, B.'s situation was not identically that in which he would have stood if the fraudulent sale had never occurred, yet no essential change had taken place in his equity, which, in its origin, was nothing more than a personal remedy against the confidential holder of the land for the value of the beneficial enjoyment, the right to which enjoyment constituted the use. Inference thence The very land was irrecoverably gone, but the use redrawn, that the use was uncon- mained; and while the conscience of the person to whom nected with the the possession had passed was unaffected, the person from whom it had passed was still liable, as before, to fulfil the equities implied in the use. This result demonstrates that uses had no local attachment to the soil, but were capable of an independent existence as personal confidences between man and man, and were placed

against the trus tee fraudulentiy selling.

land.

as such manifestly without the pale of that system under CHAP. II. which the land was held and enjoyed.

On the other hand, a transfer, purely voluntary, of the The use bound a gratuitous translegal ownership did not alter the direction of the use. feree of the land If, therefore, A., holding the land to the use of B., made without notice; an actual conveyance to C., without notice to C. of the use, but unsupported by a valuable consideration, the use was binding on C., Equity treating the transaction as a gratuitous substitution of C. for A.-a change of the person of the legal owner, without any alteration of the equitable title. That confidence which had been expressly reposed in A. was tacitly communicated to C.

strangers entering adversely, nor bind the

lord.

It should also be observed, that those persons only but did not bind were liable to perform the use, who succeeded to the legal ownership in respect of which the confidence was originally reposed. Consequently, neither a stranger, acquiring the possession by wrong, nor the lord, who in virtue of his superior and pre-existing right, resumed the land on forfeiture, or on failure of heirs of the legal tenant, nor the reversioner who re-entered for a condition broken, was affected by an equity created in relation to a title thus defeated or exhausted.

risks incident to

The equitable owner was, therefore, liable to lose the Summary of the land, as well by the fraud or neglect, as by the misfortune, the equitable of the legal owner--by his alienation without notice, his ownership. expulsion by an adverse claimant, his attainder, or the natural failure of his heirs.

EQUITY-the

Thus, there existed two opposite kinds of proprietor- Nature of ship, susceptible of different modes of disposition, and vulgar notion governed by separate jurisdictions. This topic has been corrected. insisted upon with the greater earnestness, because a just and accurate idea of the distinction between Law and EQUITY is the foundation on which we must build;

CHAP. II. and because Equity is too often misrepresented. No image, indeed, can be less agreeable to truth than the popular image of Equity, in which the unlearned admire a benign and liberal arbitress, relaxing the strictness of positive law, and tempering the austerity of the ordinary judge. But the lawyer sees in the Chancery a judicature peculiar in its constitution, adapted to aid the impotency and supply the defect, rather than to mitigate the rigour or contravene the principles of legal jurisdiction. While a court of Law adjudicates in rem upon titles completed by actual conveyance, and executes its judgment, a court of Equity adjudicates in personam upon the obligations of contract, and decrees a specific performance by the party. The decisions of Equity, so far from fluctuating with individual notions of right and wrong, bow to the authority of precedents and rules, which, like the doctrines of the common law, depend for their just application upon professional knowledge and acuteness.. EQUITY would otherwise resolve itself into the discretion of the judge, which an indignant chancellor denounced as the law of tyrants. (a) Nay, it would be worse than the worst of recorded tyrannies-a domiciliary inquisition visiting the recesses of every man's conscience, under a specious name, and screened by the veil of technicality from the jealous eye of public opinion. It is said, indeed, that equity is to be dispensed at the discretion of an upright judge, but if it be asked who is the upright judge, the answer must be-qui consulta patrum, qui leges juraque servat.(b)

Injuries arising to the seigniory from uses.

The king and his sub-lords felt sensibly the deprivation of the valuable fruits of tenure. That change of

(a) Fear. Cont. R. 535, n.

(b) 2 P. Wms. 753.