the extent, whatever it was, to which trusts of chattels were adopted, they were conducted upon the same principles, mutatis mutandis, as were trusts of freeholds; the right to sue a subpoena turned equally on privity (g), and the interest of the cestui que trust was held not to be assignable (h).

Such was the nature of trusts as they stood at common law; but the manifold frauds and mischiefs to which the new system gave occasion, particularly "the great unsurety and trouble arising thereby to purchasers," called loudly from time to time for the enactment of remedial statutes. One of the most important of these was the 1 Ric. 3, c. 1, the substance of which may be expressed in the terms of the preamble, viz. that "all acts made by or against a cestui que use should be good as against him, his heirs, and feoffees in trust," in other words, that all dealings of the cestui que use with the trust property should have precisely the same legal operation, as if the cestui que use had himself been the legal owner. To what interests the legislature intended this statute to be applicable has not on all hands been agreed. A feoffment in fee to uses was clearly the case primarily intended. Upon a feoffment in tail, it seems no use could have been declared, for a tenant in tail was incapacitated by the statute de donis from executing estates (i). With respect to a feoffment for life to uses, there appears to be no reason upon principle, except so far as the language of the act may be thought to furnish any inference, and certainly there is no objection on the score of authority, why the cestui que use might not have passed the legal estate by virtue of the statutory power. It has been contended by Mr. Sanders, that on a feoffment for life no use could

(g) Witham's case, 4 Inst. 87. (h) Jenk. 244, c. 30.
(i) Co. Lit. 19. b.

have been declared, on the ground that, as the tenant for life held of the reversioner, the consideration of tenure would have conferred a title to the beneficial interest on the tenant for life himself (k). But this reasoning can have no application, where the estate for life was not created, for, where it was merely transferred, the assignment of the lifeestate was not to be distinguished in this respect from the conveyance of the fee; in each case there was no consideration of tenure as between the grantor and grantee, but in each case the services incident to tenure were due from the grantee to a third person (1). It is clear the statute embraced uses of lands only, and did not extend either to special trusts, or to trusts of chattels not to special trusts, because the trustee combined in himself both the legal estate and the use, though compellable in Chancery to direct them to a particular purpose; and not to trusts of chattels, because the preamble and the statute were addressed to cestui que use and his heirs, and to feoffees in trust.

The mischiefs of the system increasing more and more, (the statute of Richard occasioning still greater evils than

(k) Sand. on Uses, c. 1, s. 6, div. 2.

(1) The state of the law upon this subject appears to have been as follows: 1. That on the creation of an estate for life, had no use been mentioned on the face of the instrument, the tenant for life had held for his own benefit in compensation of his services; Perk. s. 535; B. N. C. 60; Br. Feff. al. Uses, 10; and no use could have been averred in contradiction to the use implied. See Gilb. on Uses, 57. 2. That had a use been expressly declared by the deed, the tenant had been bound by the terms on which he accepted the estate; Perk. s. 537; Br. Feff. al. Uses, 10, 40. 3. Unless a rent had been reserved, or consideration paid, in which case a court of equity would not have enforced the use against the purchaser for valuable consideration. B. N. C. 60; Br. Feff. al. Uses, 40. 4. That on the assignment of a life estate a use might have been declared, as on a conveyance in fee.

it remedied, from the facility it gave to the cestui que use and his feoffee, who had now each the power of passing the legal estate, of defrauding by collusion the bona fide purchaser), the legislature again interposed its authority by the 27 Hen. 8, c. 10, and enacted, that "where any person stood seised of any hereditaments to the use confidence or trust of any other person, or of any body politic, such person or body politic as had any such use confidence or trust should be deemed in lawful seisin of the hereditaments in such like estates as they had in use trust or confidence." (2)

Uses by the operation of this statute became merged in the legal estate; but special trusts and trusts of chattels were not within the purview of the act: the former, because the use, as well as the legal interest, was in the trustee; the latter, because a termor is said to be possessed, and not to be seised of the property.

(2) As this statute does operate on the use of a life estate, but does not apply to a seisin in tail, the doctrine of Mr. Sanders, that prior to the 27 Hen. 8, there was no use of a seisin either in tail or for life, seems open to the following objections:-1. That the statute in executing the use of a life-estate operates on an interest which at the time of the enactment had no existence; and, 2dly, That in not executing a use declared on a seisin in tail, it operates differently on two estates that fall within precisely the same principle. To meet the former objection, Mr. Sanders holds the statute of Hen. 8 to be prospective, and distinguishes it from the statute of Richard, which he considers not to be prospective, by observing that the latter employs the word "use" only, while the former has the additional term of "trust;" but to this it may be answered, that, although the statute of Richard does not contain the word trust, the preamble does, and that the distinction contended for between use and trust had no existence until a comparatively recent period. See Altham v. Anglesey, Gilb. Eq. Rep. 17. To obviate the latter objection, it is maintained by Mr. Sanders that tenant in tail is within the statute of Hen. 8: an opinion which, it is submitted, is directly opposed to the general stream of authority. Co. Lit. 19. b.; Shep. Touch. 509; Gilb. on Uses, 11, and Sir E. Sugden's note, ib.

**

In the room of uses which were thus destroyed as they arose, the judges by their construction of the statute created a novel kind of interest, since distinguished by the name of Trust. Before the statute of Hen. 8, a person, to have had the complete ownership, must have united the possession of the land and the use of the profits. The possession and the use were even at common law recognised as distinct interests, though the cestui que use was left to Chancery for his remedy (1). On a feoffment to A. to the use of B. to the use of C., the possession was in A., the use in B., and the limitation over to C. was disregarded as surplusage. When the statute of Hen. 8 was passed, it executed the estate in B. by annexing the possession to the use; but having thus become functus officio it did not, as the act was construed, affect the use over to C. However, Chancery, now that uses were converted into estates, decreed C. to have a title in equity, and enforced the execution of it under the name of a trust (m).

"Interests in land," said Lord Hardwicke, "thus became of three kinds: first, the estate in the land itself, the ancient common-law fee; secondly, the use, which was originally a creature of equity, but since the statute of uses it drew the estate in the land to it, so that they were joined and made one legal estate; and, thirdly, the trust, of which the common law takes no notice, but which carries the beneficial interest and profits in a court of equity, and is still a creature of that court, as the use was before the statute (n).”

This newly-created interest was held to be so perfectly

(1) Lit. s. 462, 463; Co. Lit. 272. b.; and see Carter, 197; Povey v. Juxon, Nels. 135; Megod's case, Godb. 64.

(m) See Hopkins v. Hopkins, 1

Atk. 591.

(n) Willet v. Sandford, 1 Ves. 186; Coryton v. Helyar, 2 Cox,

342.

distinct from the ancient use, that the statutory provisions, by which many of the mischiefs of uses had been remedied, as the 19 Hen. 7, c. 15, by which uses had been made liable to writs of execution, and the 26 Hen. 8, c. 13, by which they had become forfeitable to the Crown for treason, were decided to have no application (3). However, the trust took the likeness of the use, assimilating itself to the nature of special trusts and trusts of chattels, which had never been disturbed by any legislative enactment.

To show how the principles of uses prevailed after the statute of Hen. 8, it was held in the reign of Elizabeth (0), that the equitable term of a feme covert did not vest in the husband by survivorship; for a trust, it was said, was a thing in privity, and in nature of an action, and no remedy for it but by writ of subpœna. And a few years after in the same reign it was resolved by all the Judges that a trust was a matter of privity and in nature of a chose in action, and therefore was not assignable (p). And in the sixth year of King Charles the First it was decided by the Judges, that, as a feme was dowable by act or rule of law, and a court of equity had no jurisdiction where there was not fraud or covin, the widow of a trustee was entitled to her dower out of the trust estate (q).

(0) Witham's case, 4 Inst. 87; S. C. Popham, 106, sub nomine Johnson's case.

(p) Sir Moyl Finch's case, 4

Inst. 86.

(q) Nash v. Preston, Cro. Car.

190.

(3) As the statutes relating to uses have never been repealed, but are merely inoperative from the want of any subject matter, the question suggests itself whether they be not still applicable to a use created by a bargain and sale not by indenture, or by indenture not duly inrolled; for as the 27 Hen. 8, c. 10, is prevented from transferring the possession, the old common law use seems in this case to survive. See Shepp. Touch. 508.