necessary in notice of an intended enfranchisement being given to Notice unany other persons, where the tenant has a limited certain cases. interest, provided that such tenant pays the whole cost of the enfranchisement. 1844. for eufran Another Act (e) extends the means of obtaining Copyhold Act, commutation or enfranchisement, by enacting (f) that, in addition to the provisions of the Acts already referred to, any commutation or enfranchisement may Consideration be made, wholly or in part, for the consideration of chisement. a conveyance of lands, or of any rights to mines or minerals, although the said lands or the said rights to mines or minerals, so to be conveyed, shall not be parcel of, or situate in, or under, the lands of the same manor as the lands so to be commuted or enfranchised; provided the Commissioners approve of the arrangement. These three statutes only contemplate commutation or enfranchisement taking place by the mutual agreement of the lord and his tenants, but the next Act which we have to notice enables either party to compel the other to enter into such arrangement. enfranchise This is the Copyhold Act, 1852 (g), which enacts (h) Copyhold Act, 1852, provides that, at any time after the next admittance to any lands for compulsory which shall take place on or after the 1st of July 1853, meut. in consequence of any surrender, bargain and sale, or assurance thereof (except upon a mortgage, in cases where the mortgagee is not in possession), or in consequence of any descent, gift, or devise, it shall be lawful for the tenant so admitted, or for the lord, to require and compel enfranchisement, in manner mentioned in the Act, of the lands to which there shall have been such admittance as aforesaid; provided, however, that no such tenant shall be entitled to re Notice to be desiring en Consideration to be ascertained and proceedings the Commis sioners. Extinguish ment of heriots. quire such enfranchisement until after payment or tender of the fine or fines, and of the fees, consequent on such admittance. The Act then (i) provides for notice being given by given by party the party desiring enfranchisement, and the way in franchisement. which the consideration payable to the lord is to be ascertained, and for the confirmation of the proceedings by the Commissioners (j). It also enacted (k) approved of by that, at any time after a heriot had become payable with respect to any freehold or customary freehold lands holden of manors on or after the 1st of July 1853, it should be lawful for the lord or the tenant to require and compel the extinguishment of all such claim to heriots, and the enfranchisement of the lands subject thereto, in the same way as if such lands were copyhold. This section of the Act is however repealed, and a more comprehensive rule introduced, by a subTenants not to sequent Act (). Nothing in the Act is to deprive be deprived of commonable any tenant of any commonable rights to which he shall be entitled in respect of any enfranchised lands (m), and the Act is not to extend to any estate or rights Not to extend of any lord or tenant in any mines or minerals within minerals with- or under the lands enfranchised, or to any rights of way or other easement, or to any rights of the lord in respect of holding fairs, or his rights of sporting, unless with the express consent in writing of such lord or tenant (n). rights. to mines or out express agreement. Or to easements, or rights of fairs, or of sporting. Copyhold Act, 1858. Extends This Act was amended by the Copyhold Act, 1858 (0), which empowers any tenant or lord of any copyhold powers of com- lands to which the last admittance shall have taken pulsory enfranchisement. place before the 1st of July 1853, or of any freehold or 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. Introduction of 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 66 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. rules of law. At first, the decisions of the Court of Chancery, in Uses not subrespect of uses, were not free from the scruples of the ject to the 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 consequence 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. |