customary freehold lands in respect of which the last heriot shall have become due or payable before the same date, to require and compel enfranchisement in the manner provided by the Copyhold Act, 1852 (p). It also provides for the compulsory extinguishment of heriots in freehold or customary freehold lands holden of any manor (q), without reference to the time when the last heriot was payable.

The effect of these Acts has been to diminish, to a certain extent, the amount of land held by copyhold tenure, but the process is, as might be expected, very gradual, and, unless the Legislature should pass some new enactment on the subject, copyhold tenure seems likely to endure for many years to come.

(p) S. 6.
(2) S. 7.

Introduction of
Uses.

CHAPTER VIII.

OF THE STATUTE OF USES.

THE estates to which our attention has hitherto been directed are those which give their owner a right to the present possession of land. There are, however, others which, although existing as estates, and thus giving a present interest in land, do not confer a right to its present possession, and these also will require our consideration.

But since much of the law relating to them has reference to the Statute of Uses (a), we will first of all devote a short chapter to an attempt at explaining this famous enactment.

In the earlier times of our legal history, the person who had the seisin of land was the only one known, or thought of, as having any immediate estate in it. The first persons to introduce a distinction between a right to the benefit of land and its legal ownership appear to have been the foreign ecclesiastics, who wished to elude the statutes against mortmain, which, as we know, prohibited the religious corporations from holding land. They consequently endeavoured to evade the law by having conveyances of land made to some third person, who was to hold it for their benefit or "use." This stratagem was very soon 15 Ric. II. c. 5. frustrated by the 15 Ric. II., c. 5, which enacted, in effect, that all lands held by or in trust for religious houses, without licence from the Crown, should be

(a) 27 Hen. VIII. c. 10.

forfeited. But the idea of secret trusts had taken root, and the numerous forfeitures for treason occasioned by the Wars of the Roses caused it to flourish. So that, from the beginning of the fifteenth century, the plan of conveying land to uses was generally adopted.

use before the

For Uses.

A use, as it existed before the Statute of Uses, was a Definition of a right to receive the profits of land of which the legal Statute of ownership was vested in some other person. example, if A. had conveyed land to B. in order that the latter might hold it for the benefit of C., C. had the use in the land thus held in trust for him. The Common Law courts refused to recognise uses, Uses not reand consequently left a person who had a use, or, as Common Law. cognised by the he was called, a cestui que use, entirely dependent upon the good faith of his trustee. But besides the Com- But enforced by the Court mon Law courts, there had existed from an early of Chancery. period the Court of Chancery, which professing especially to administer equity, was disposed to enforce rights which were clearly just, although they might not be legal. Thus there came to be two kinds of estates, the legal estate of which the ostensible owner was alone recognised by the law, and the equitable estate of the cestui que use, which was the peculiar favourite of Equity.

ject to the

At first, the decisions of the Court of Chancery, in Uses not subrespect of uses, were not free from the scruples of the rules of law. Common Law, and from the considerations arising from the laws and principles of tenure (b); but, by degrees, these gave way to more liberal views. One conse

quence was that land held to uses was allowed to be, indirectly, disposed of by will, although a devise of land (except under some special custom) was not, at the time we are speaking of, permitted by law; for the use in it might be devised, and the Court of Chancery would then compel the legal owner to convey the land to the devisee. Uses were, moreover,

(b) 1 Sand. Uses, 5.

Resulting use.

Objections to system of uses.

Statutes of
Pernors.

Statute of
Uses.

freed from the restrictions by which legal estates were hampered, and allowed to be dealt with in many ways not countenanced by the law. The most important of these was the employment of "conditional limitations," by means of which an estate of freehold might be made to come into existence, conditionally on the happening of some future event; a form of limitation which, as we shall see hereafter, was not, at that time, possible in the case of legal estates.

Besides this, the Court of Chancery not only recognised a use which had been expressly created, but would, in some cases, allow a use to be raised by implication. Thus, if a man had covenanted by deed that he would, in consideration of natural affection, stand seised of land in trust for some near relative named in the deed; or if he had agreed to sell his estate, and had received the purchase-money, the court would hold that a use had been raised in favour of the relative or purchaser, as the case might be.

This system of secret trusts was not only repugnant to the policy of the law, which favoured notoriety in the transfer of land, but also gave many opportunities to the owner of an equitable estate to avoid just claims upon him. In order to prevent this, several statutes, known as the Statutes of Pernors (c), were passed in the reigns of Henry the Sixth and Henry the Seventh, the object of which was to put the cestui qui use in the same position as if seised of the actual possession at law (d); but since they did not suffice for the purpose, the Legislature determined to strike a decisive blow by abolishing trusts of land altogether. With this view it passed the famous Statute of Uses, the 27th Hen. VIII., c. 10.

(c) From prendre, to take.
(d) 3 Reeves, 364.

This Act began by declaring that, by the common laws of the realm, lands, tenements, and hereditaments were not devisable by will, nor ought to be transferred from one to another, but by solemn livery of seisin, matter of record, or writing sufficient, made bona fide, without covin or fraud; yet that nevertheless divers and sundry imaginations, subtle inventions, and practices had been used, whereby the hereditaments of the realm had been conveyed from one to another by fraudulent feoffments, fines, recoveries, and other assurances, craftily made to secret uses, intents, and trusts. It then recited the various evils which this practice had introduced, and, "to the extirping and extinguishment" of it, enacted (e), that where any person or persons should stand or be seised, or at any time thereafter should happen to be seised, of and in any hereditaments to the use, confidence, or trust of any other person or persons, by reason of any of the modes of assurance mentioned in the Act, or by any other manner of means, every such person that had, or should have, any such use, confidence, or trust, in feesimple, fee-tail, for term of life, or for years or otherwise, or any use, confidence, or trust, in remainder or reversion, should from thenceforth stand, be seised, deemed, and adjudged, in lawful seisin, estate, and possession of and in the same hereditaments, to all intents, constructions, and purposes in the law, of and in such like estates as they had, or should have, in use, trust, or confidence, of or in the same; and that the estate, title, right, and possession that was in such person that was, or should be, seised of any hereditaments to the use, confidence, or trust of any person, should from thenceforth be deemed to be in him, or them, that had, or should have, such use, confidence, or trust, after such quality, manner, form, and condition as the person seised had before, in or to the use, confidence, or trust that was in him.

(e) S. I.